The brief transcribed below was prepared by Edward Irvine, attorney for Yancey Harris, in Harris v. Phillips. It discusses the special nature of slaves as property, as well as some of the legal consequences of the husband and wife relationship.
The facts of this case are simply these. Samuel Phillips obtained a judgment against the personal[sic] of Waddy Thompson deceased and cause his execution to be levied on the slave in controversy which was then in the possession of Yancy Harris. To all proceedings under that execution Harris obtained an injunction.The first question which presents itself to the consideration of this court is as to the jurisdiction of the court. As a general rule a court of equity will not interfere to prevent a creditor from seizing and selling under his execution any property which he may think liable to it, unless the property be of such a character that the owner cannot be fully compensated by the verdict of a jury giving him the fair market value. It will only interfere where the property is of such a nature that it may be fairly supposed to have a peculiar value in the estimation of the owner. It must possess in addition to its own intrinsical value the "prelium affectionis." Now our court of appeals after having delivered various contradictory decisions on the subject have at length settled the law, that slaves are to be considered of peculiar value to their owners. In the case of Harrison and Tims 6 Ran.[?] p. 194, the last reported case on this subject, they decided that in every case in which the owner of slave property applies to a court of equity he will be entitled to an injunction, and if he makes out his case will be entitled to relief, though he neither alleges nor proves the peculiar value of the property. There can be no doubt then as to the jurisdiction of the court in this case.
The second question which presents itself to the consideration of this court is whether this slave was liable to this execution? The court of Appeals in the case of Chamberlyne and Temple reported in 2 Ran. p. 395, make a distinction between an execution on a judgment agains a fraudulent donor himself, and an execution on a judgment against the personal representative of such donor. The court say in that case that an execution delivered to the sheriff on a judgment against the fraudulent donor himself binds the property in the hands of the fraudulent donee. The execution in such a case is against the goods and chattles of the defendant generally; and the conveyance being void the goods are still the goods of the donor and may be taken under the execution. But a judgment and execution against the personal representative of the graudulent donor cannot bind the goods and chattles in the hands of his fraudulent donee, since the deed is good between the parties and those claiming under them. The execution in that case is against the goods and chattles of the testator or intestate in the hands of his executor or administrator to be administered, and such goods are not in contemplation of law in his hands. See the case of Clark and Hardiman reported in 2 Leigh p. 352, in which the very same principle is settled with some qualifications which do not apply to or affect this case. I would also refer this court particularly to a case reported in 5 Mun. 332 in order that this court may see what were the impressions of the court of appeals in relation to this point previous to their last decisions on this subject. From all those decisions it clearly appears that where a judgment has been obtained against the personal representative of a fraudulent donor that an execution cannot be levied on the property in the hands of the traudulent donee until the conveyance has been impeaced and convicted of fraud by the decree of a court of competent jurisdiction. If so, this injunction ought to be perpetuated.
But let it be admitted that this is a mere technical objection? Let it be admitted that as this case does not stand upon a motion to dissolve, but has been set for a final hearing that this court will afford the same relief upon this final hearing, as if a bill had been filed by the defendants to impeach and set aside this conveyance. Admitting all this, we are still entitled to recover on the merits of the case. There is no deposition which even has a tendency to stamp this conveyance with a fraudulent character except the deposition of Susan Jopling the wife and widow of Waddy Thompson deceased. Is she a competent witness? It is a settled principle of law that where either the husband or wife is a part to a suit the other is an incompetent witness in relation to the matter in controversy because their interests are identical and also on grounds of publick policy. It is not only clear that where either is a party to the suit that the other is altogether incompetent, but the principle applies where neither is a party to the suit but the effect of the testimony of the one is to fix a fraud upon the other or to divulge in a court of justice facts a knowledge of which was acquired in the sacred privacy of domestick intercourse. This principle upon which we rely as applicable to the present case is thus laid down by Starkie (part II p. 709). He says "that where neither if them is either a party to the suit or interested in the general result the husband or wife, it seems, is competent to prove any fact, provided the evidence does not directly criminate the other or involve the disclosure of some confidential communication." Now the direct effect of the testimony of Susan Jopling is to fix upon her former husband the charge of having made a fraudulent conveyance of the negro in controversy to Yancy Harris. Her testimony is clearly objectionable on the ground that it has a direct tendency to criminate her husband. The fact that her husband was dead at the time she gave her testimony cannot change the aspect of the case. In all cases in which the huband or wife is rejected on grounds of publick policy the rule is adhered to although the marriage tie is dissolved by death or a divorce. Her testimony is also objectionable on the ground that it involves the disclosure of communications made to her by her husband. I would refer the court to a case reported in 2 Leigh 141, as going to establish the principles here laid down.