concurring.
It appears from the record, that in the year 1862, a judgment was obtained in favor of Dodd, as-bearer, against Dever, on a promissory note made by him on the 10th day of December, 1860, payable to William Tumlin, or bearer, for $1071 34, which judgment was assigned to Akin, the plaintiff. On the 1st of December, 1868, the defendant made an affidavit of illegality to the execution issued on said judgment, on the ground that the note on which the judgment was founded was given for negroes. On the trial of the issue formed upon this affidavit of illegality in the Court below, the following facts are disclosed by the record: Dever owed Freeman the amount of the note for negroes purchased of him. Freeman was indebted to Tumlin the same amount for land purchased from him, and at the request of Freeipan, Dever, the defendant, executed his note to Tumlin, all parties consenting to this arrangement. Tumlin swears that he received Dever’s note in exchange for Freeman’s note given to him for land, Dever being indebted to Freeman for negroes, that he took Dever’s note in place of Freeman’s note, which was given to him for land. The Court charged the jury “that if Freeman bought land from Tumlin and owed him for it, and Dever bought negroes from Freeman and owed him for them, and in this state of facts it was arranged by and among the parties, so that Dever gave his note immediately to Tumlin, then Dever stood in the place of Freeman to Tumlin, and that the consideration o;f the ,note given by Dever to Tumlin was not a slave or slaves, but the consideration of the note was the note held by Tumlin against Freeman which was given for land, and that if the jury believe the facts to be as above supposed, it would be their duty to bring in a verdict in favor of the plaintiff in fi. fa. and set aside the illegality.” According to the facts as disclosed by the record, there was a novation of the original contract between Freeman and Dever by the introduction of a new party, to whom Dever obligated himself to pay the amount due by Freeman to Tumlin for land, and as declared *431by the 2682d section of the Code, the original contract between Freeman and Dever, the consideration of which was a slave or slaves, was at an end ; and being at an end, it was in contemplation of law extinguished; and the charge of the Court as to the law applicable to the facts of the case was right, and the verdict of the jury setting aside the affidavit of illegality was also right under the law which it was the duty of the Court to administer. The Court left the question with the jury as to whether there had been a novation of the original contract as between Dever and Freeman by the introduction of Tumlin, a new party, to whom Dever obligated himself to become paymaster for what Freeman owed Tumlin, and if such were the facts of the case, under the evidence, there was no illegality, on account of the consideration of the original contract between Dever and Freeman having been negroes, to be considered by them; under the law, that original contract was at an end — that is to say, the original contract between Dever and Freeman, tile consideration of which was slaves, was by operation of law at an end, extinguished. If the jury had found a verdict sustaining the affidavit of illegality upon the uncontradicted facts in the record, the Court would have been bound to have granted a new trial, because the verdict would then have been contrary to the law as applicable to the undisputed facts in the case. Whether the original' contract between Dever and Freeman was at an end or not, was a question of law for the Court, and not a question of fact for the jury.
What does the law declare shall be the rights and liabilities of the parties, when Dever, at the request of Freeman, gave his note to Tumlin for the debt due by Freeman to Tumlin for his land which Freeman had purchased of him ? Clearly, that the debt due by Dever to Freeman for negroes shall be at an end, satisfied and extinguished. Freeman could not afterwards recover on that contract against Dever, for the reason that the law cancelled it, and the verdict of a jury is not necessary to find the fact that it is cancelled, when the law declares that the contract shall be cancelled and at an end upon an undisputed state of facts. It is not the province *432of the jury to find what is the law of the case; and there is no dispute as to the facts which, in law, put an end to the contract between Dever and Freeman. The verdict of a jury could not alter or change the legal status of the parties as to the original contract between Dever and Freeman under the undisputed facts of this case. And if the jury had found a different verdict, it would have been the duty of the Court to have set the same aside as having been contrary to law, even if the consideration of the original contract between Dever and Freeman was slaves — the consideration of that original contract which was at an end, had nothing to do with the question before the Court.