
    Daniel M'Neil vs. John Philip.
    ail action of trover, where the defendant received a negro slave cti. tile plaintiff upon a promise to return him', on a certain event, which had occurred, the court Held, that it was not necessary to inquire into the strict legal litio of the plaintiff.
    Tric'd before Judge Richardson, in Charleston, January Term, 1821. •
    
      ¶\ *. . HIS was an action of trdvcf, for a negro named Ellick.; •Mr. Sinclair, a witness for the plaintiff, proved, that in July,•1817', he called with the plaintiff on the defendant, and heard the defendant acknowledge that he had. received said negro from, the plaintiff, under a promise to return him to the plaintiff, when the business of a certain prize was settled, but thought himself as much entitled to the neJ gro as the plaintiff.
    It was admitted by the defendant that the Business of the prize alluded to, was settled when said conversation ■took place.
    . The plaintiff called a witness, Capt., Tz/rreer, who proved that in a conversation with the defendant, about twelve or fifteen months'before,-the. latter informed him that he had.sokl Ellick to a back countryman. This' witness also testified that he had seen Ellick in the defendant’s posses-sí on, between two and three years previous to this period % that he was employed by the defendant bn board a coast™ inj vessel, plying between Charleston and Beaufort; that Ellick was an African, and worth % 500.
    Here the plaintiff’s case closed ; and the defendant called a Mr. Humphries, who testified that he was the second officer of the Revenue Cutter, commanded by the plaintiff, when the prize alluded to, viz. the General Blake, was taken, hovering on the coast with negroes on board, viz : four Africans, of whom Ellick was one. That they were all brought into Charleston by the Cutter. He further testified that he knew the defendant had possession of Ellick, but could not fix the time when ; that l\e had seen the negro about three years before the period of the. trial, who was then working out for captain Philip, the defendant, in a coasting vessel, and was hired to captain Mead. Witness supposed he’ was not worth more than g 300, as he sometimes got drunk. He further said, the usual wages of a negro coaster were from 8 to 10 dollars per month.
    It was admitted at the trial that the prize had been condemned under the act of Congress, for hovering on the coast with negroes on board; but that the said negroes were not condemned, nor would the.court make any order concerning them, but they remained with the .plaintiff except Ellick, who was loaned as aforesaid to the defendant.
    Here the case closed; and the defendant contended that he was either the owner of the said negro, by occupancy, or a joint owner with the plaintiff, under the act of Congress, and therefore lie was not liable to this.action ; and that the sale of the negro, and the receipt of his price were not tantamount to a destruction of the thing, as it was only a change from a negro into money.
    The plaintiff, on the other hand contended, that his title could not he disputed by the defendant, who had received the negro from him, under the express promise to return him, as was proved. He denied that the defendant was ajoint ówner with him under the act of Congress, or a sole -wvner by occupancy. But even if he were, regarded as a joint owner, be was still liable to this suit; as he had sold the negro, which quoad the plaintiff’s right was tantamount to a destruction of the thing; for it v/as carried away, no one knew whither. That consequently he, the plaintiff, was entitled to a verdict for the value of the negro as proved, and eight or ten dollars per month damages for wages from the time of the demand, viz. July*
    The Judge charged that the defendant could not dispute the right of the plaintiff to the negro, as he had received the said negro from the plaintiff under a promise to return him. The jury, however, found for the defendant.
    A motion was therefore made for a new trial, on the following grounds :
    1st. Because'whether the plaintiff was or was not the owner of said negro, he v/as entitled to recover against the defendant, who, having received him from the plaintiff under a contract to return him, was estopped in law from controverting the plaintiff’s title. t
    
    2d. Because the plaintiff was in fact the owner of the said negro by the right of occupancy, and the possession of she defendant as his baillee or agent, was the possession of the plaintiff,
    3d. Because if the plaintiff was not the absolute owner, he had a special property in said negro.under the act of Congress, in which the defendant had no share; and consequently could maintain his action against any one but the true owner.
    4th. Because even if the defendant were a joint tenant with the plaintiff, which is denied, yet the action could be supported, as the defendant had destroyed the property.
    5th. Because the verdict was contrary to law and evidence, and the charge of the presiding Judge.
   Mr. Justice Richardson

delivered the opinion of the court. ■

It-is not necessary to inquire into the strict legal title of the plaintiff to the negro slave, under the authority of the case of Norwood vs. Mannings decided in the Constitu-uoual Court at Columbia in 1817. It is enough to say that the defendant ’ had stipulated to return Ellick to the plaintiff upon a certain event which bad occurred; and good faith required this contract should be fulfilled on the part of the defendant.

Prioleau, for the motion.

Gadsden, contra.

A new trial was therefore granted.

Justices Colcoci, Nott, Huger, and Gantt, concurred,  