
    Jesse Deloach vs. R. R. Turner.
    A former recovery held to be no bar to a second action for the price of a negro sold, it appearing that the sale took place after the writ in the first action was issued, and that the consideration of the sale of the negro was in fact withheld from the jury by the Judge at the trial of the first action, there being in that case other causes of action upon which verdict was rendered for the plaintiff.
    BEFORE GLGYER, J., AT BEAUFORT, SPRING TERM, 1855.
    The report of his Honor, the presiding Judge, is as follows :
    “ The action was assumpsit to recover the value of a negro named Isaac. The writ was entered in the sheriff’s office on the 15th of November, 1853, and the plaintiff counted, 1st, For the value of Isaac, who, it was alleged, had been hired to defendant for a year, and had not been returned at the end of the year; 2d, For the value of Isaac, alleged to have been sold to the defendant, with the money counts, and an account stated.
    “ The defendant pleaded the general issue, a former recovery, and the statute of limitations. In 1850, the plaintiff brought an action against the defendant to recover, 1st, the price of a tract of land; 2d, the hire of Isaac, from January, 1846, to January, 1850; and 3d, for the value of Isaac, alleged to have been sold to defendant. At Spring Term, 1852, the case was heard before Evans, J., and a new trial was granted. (See 6 Rich. 117.)
    “ At Fall Term, 1853, a second trial -was had before O’Neall, J., who instructed the jury, ‘ that there was no evidence to support the count for the sale of the negro. The defendant had sold him since this suit, but that could not be noticed.’ A verdict was rendered for the value of the land, and the hire of Isaac.
    “ The defendant again appealed, and moved for a new trial on several grounds. The plaintiff also renewed a motion, which he had made on circuit, to strike out the counts in his declaration alleging the sale of Isaac. Both motions were dismissed, and the Court says, in reference to the plaintiff’s motion : ‘ If this could seriously prejudice the .plaintiff, we might hesitate about refusing his motion. But this record will not bar his right, in a subsequent action, to recover the price of the slave on the testimony of Garvin. For that showed a sale subsequent to the plaintiff’s writ, and the amount could not, therefore, be recovered in this case. This may be shown by parol in any subsequent case which he may bring.’ (See 7 Rich. 143.)
    “ It appeared, from the evidence in the principal case, that defendant married plaintiff’s daughter in 1838, and that she died in 1839, leaving a daughter surviving her. About 1838 or 1840, Isaac came into the possession of defendant, who told Jacob P. Griner, in 1848, that he had taken Isaac, who was a runaway, to correct that habit, but he believed it would he fruitless ; that he had proposed to ship him, and plaintiff would not consent; b,ut agreed to take a'woman for Isaac, and he ought to have bought one before, but would do so as soon as he could, and then he would ship him.
    “ About September hr October, 1850, John W. Nix went, at plaintiff’s request, to settle with defendant respecting the sale of a tract of land, and the hire of Isaac. Defendant denied that he had hired, and insisted that he had bought Isaac for four hundred dollars; and that if plaintiff would acknowledge the sale, he would pay every dollar in ten days. Plaintiff denied the sale; and when Nix communicated his denial to defendant, he replied, if plaintiff would not acknowledge the sale, he intended to keep the eight hundred dollars, (the price of the land,) 4 to law him with.’
    “In August, 1852, James It. Garvin went to Charleston with defendant, and Isaac was along, and was not brought back. Defendant told him he had exchanged Isaac for a negro woman'and child, and had given two hundred dollars to boot.
    “Dr. Gregorie, the foreman of the jury which heard this case at Pall Term, 1853, believed that the presiding Judge instructed the jury not to find the price of Isaac, and that it was withdrawn from the consideration of the jury.
    “ Edward Perry, a member of the jury, said that the verdict was made up by the price of the land and the hire of Isaac, less a discount, and that the jury was governed by the instructions of the Court.
    “Por the defence, Jesse A. Deloach stated, that he heard plaintiff say in 1846, he had sold Isaac to defendant for four hundred dollars; and William Deloach testified, that since 1844, Isaac has been in defendant’s possession, and was managed like the rest of his negroes.
    44 The jury was instructed, that the plaintiff was not estopped by the verdict in the prior suit, because the price of Isaac, which is the cause of action in this case, was withheld from the consideration of the jury in that suit, and was not embraced in their verdict.
    
      “ Respecting the statute of limitations, the jury was told, that if defendant received Isaac under a contract of sale when he first went into his possession, or four years before his admissions to Nix, those admissions would not sustain the plaintiff’s action, as they were conditional, and after the statutory bar was complete; but if the contract of sale was in 1848, when defendant conversed with Griner, his admissions to Nix may be regarded as the recognition of a subsisting debt, and the plaintiff’s claim would not be barred.
    
      “ The jury found a verdict for the plaintiff for the value of Isaac.”
    The defendant appealed on the grounds :
    1. Because the former recovery, as pleaded, was a bar to the action.
    2. Because the statute of limitations barred the suit.
    2. Because the verdict was contrary to the law and evidence.
    
      Tillinghast, for appellant,
    cited Seddon vs. Tutop, 6 T. R. 607 ; 1 Phil. Ev. 243, note; 3 Atk. 626; 1 Stark. Ev. 200, note.
    
      NicMing, contra,
    cited 1 Chit. PI. 700; Jones vs. McNeil,-2 Bail. 474.
   The opinion of the Court was delivered by

O’Neall, J.

In this case the defendant’s ground that the former recovery as pleaded was a bar to the action cannot avail him. The replication seems to have been drawn according to the usual forms, and seems also to be pretty much as that in the authority cited by the learned counsel for the defendant: Seddon vs. Tutop, 6 T. R. 607. It may be, that it does not say as was said in that case, “for the non-performance of which the said sum of money was so recovered by the said judgment.” But it says that the said promises and assumptions are not the same whereof the former recovery was had. This is legally true. For the sale of Isaac alleged in the former record could not have been considered from the proof then in issue. For the defendant was charged with the hire of Isaac m that very record, and a recovery for the same led to the issuing of the writ in this case.

The plaintiff had always denied the sale ; the defendant, it is true, affirmed to Nix that he had bought Isaac; the defendant., .however, had him on hire or to break until he disposed of him after the writ. This the plaintiff considered as a sale, and from the proof given in this case (to which, let it be remarked, there was no objection,) the sale was abundantly proved and is only claimed by the plaintiff at a period subsequent to the writ. This steers clear of all exception, and according to the former decision, 7 Rich. 150, gives the plaintiff a plain right to recover.

The other grounds require no comment.

The motion is dismissed.

Wardlaw, Withers, Whitner and G-lover, JJ., concurred.

Motion dismissed.  