dissenting.
I concur in the opinion of the Chief Justice, that the question involved in the controversy has been settled in several cases, decided during the recent summer terms of this court, in which the legitimate and logical application of the principles and doctrines of the Wainwright and subsequent similar decisions was made. See Haden vs. Phillips et al., 21 A. 517; Armstrong vs. Lecomte, ib. 527 ; Dranguet vs. Rost, ib. 538; Groves vs. Clark et al., ib. 567; Suc. Hortense Patin, ib. 661. The only theory on which the conclusion of the majority of the court, in this case, can in any way be reconciled with the existing jurisprudence on the subject, is that the contract has been voluntarily executed pro tanto by the parties as to the slave consideration. But a contract cannot properly be considered as executed, in the sense oí that term in this connection, as long as there is any portion of it to be enforced, and during such time, the debtor may set up any defense! he may have to its enforcement, and claim the benefit of any payments made by him. Without direct, positive proof that the payments wer< made on the price of the slaves, we should not, under our jurispru dence and the constitution, presume that they were so made. I cai but think that the decision in this case is in conflict with our jurispru dence on the subject.