
    John Ford, v. David Aiken.
    A father, soon after the marriage of his daughter, delivered to her husband four slaves, and took from him a written instrument, containing a receipt for the negroes, and an agreement to pay hire for them. The negroes remained in the possession of the son-in-law for thirteen or fourteen years, and no demand was ever made for their hire; they were subsequently sold under an execution against him, when the father brought trover for their recovery. The jury found the property in the father, and the credit to have been given to the son-in-law previous to the delivery of the slaves to him. On motion, the Court refused to grant a new trial.
    The rule, which renders the property of the true owner liable for the debt of the bailee, or person in possession, is applicable only where the original credit was based on the property; and the debt must not be of doubtful beginning, but the plaintiff must shew it to have been contracted subsequent to the possession of his debtor.
    
      Tried before Mr. Justice Feost, at Fairfield, Extra Term, July, 1846.
    Trover for five negroes, Rachael, York, Green, Mary, and Charlotte.
    A. demand and refusal were admitted. The defendant had purchased these negroes, at a sale by the Sheriff, under an execution against David Elkin; and the issue depended on the question, whether the negroes were the property of David Elkin, or subject to levy and sale for the payment of his debts.
    David Elkin married the daughter of the plaintiff, in October, 1829; and in January following, the plaintiff delivered to Elkin, a woman, Diana, and her three children, Mary, Rachael, and William, when Elkin, by a written instrument, bearing date the 8th January, 1830, acknowledged the receipt of the negroes, and agreed to pay for the hire of them $>25 per annum, and the taxes, and clothe them. Elkin, soon after, removed the negroes to his farm, distant about 22 miles from the plaintiff’s residence. There were fifteen or sixteen hands on the place. David Elkin testified that the plaintiff had offered to give the negroes to him; but he refused to accept them, desiring that they should be settled on his wife and her children. He never claimed any property in them, but he governed and spoke of them as his; and they passed in the neighborhood as his. He held them under the contract for hire, and held himself liable to pay the hire, if it were demanded; but he did not expect that the payment would be demanded, and it was not. Several witnesses, near neighbors of Elkin, were examined for the defence, who stated that he always treated and spoke of these negroes, in common with the others, as his own; that they were so reported to be, in the settlement; and the witnesses did not know, nor had they heard, to the contrary. Diana and her child William, were returned to the plaintiff in February, 1834. York, Green, and Charlotte, are children of Rachael and Mary, born in Elkin’s possession. The plaintiff bought some negroes at Martin’s sale; and four of them were delivered to Elkin, on an agreement for hire. These negroes were sold to pay the plaintiff’s debts. All the plaintiff’s property was sold in September, 1844. Before that time, but it was not proved when, the plaintiff had mortgaged the negroes in dispute. At the sale by the Sheriff of the negroes, under the execution against David Elkin, the plaintiff gave notice, publicly, that they were claimed by him.
    The defendant offered in evidence several executions against Elkin. One at the suit of Gladney, entered in the Sheriff’s office in December, 1841. The record of a decree in Equity, made in suit for a copartnership account, between David Aiken and David Elkin; and the execution in that case, for $3,167, entered in 1842. Also an execution, on a judgment by confession from David Elkin to the plaintiff, for $1243.90, entered the 8th July, 1842. At the sale of Elkin’s property, the defendant purchased to the amount of $4,200. He had paid to the Sheriff $3,000, and upwards of $1,000 was applicable to the defendant’s execution against Elkin. The facts and statements contained in the Chancery Record, were not brought to the notice of the presiding Judge, except as they were adverted to in the argument; so that the report may not be altogether accurate respecting the facts derived from it. It appeared that the defendant and David Elkin signed articles of copartnership in October, 1827, to commence from the first of January, 1828, and continue for three years. The defendant agreed to advance $5,000 towards the capital, on which interest was to be charged to the copartnership, and defendant to be repaid the principal. On the first of January, 1828, Elkin was charged in account with $5,800, the amount of this advance and interest, &c. The balance on the copartnership account, settled by the decree in 1842, was $3,170, due by Elkin to the defendant. It was stated that Mary died after the commencement of the suit. The deed^ by which the plaintiff mortgaged the negroes in dispute, was not produced, nor was any particular proved of the date, debt, to whom or when payable.
    The jury were instructed that the delivery of a slave by a parent to his married daughter, at the time of marriage or subsequently, and the possession by the daughter and her husband, was, prima facie, evidence of a gift; but that the delivery might be qualified and restrained so as to make the possession a loan or a bailment of hire. In stating the proof on this subject, which was derived entirely from David Elkin, and in reference to his credibility, the jury were told, that he was disinterested in the issue, and without motive to misrepresent the conditions of his possession, since, in any event of the suit, the negroes would go to a creditor: and his testimony was against his interest, by appropriating the negro to the payment of the plaintiff’s debt.
    In conformity with the decision in Archer v. M’Fall, the jury were instructed, that the plaintiff’s permitting the negroes to go into the possession of Elkin, under such circumstances as would authorize the belief that he was owner, would subject the property to the claims of a subsequent creditor, without notice of the terms by which the possession was held; who trusted Elkin on the credit of the property. The facts were brought to their attention, to shew that the defendant had not trusted Elkin on the faith of this property. The presiding Judge did, in his comments on the case, say that the principle affirmed carried the rights of creditors to the extreme limit of law; since the circumstances of a loan or hiring could not be distinguished from those attending the possession, as owner, and benevolence might not be exercised with any legal security, that the properly should not be subjected to the claims of subsequent creditors of the bailee for hire or loan. But the jury were also charged that the case was law, which they and the Judge were bound to obey.
    The 1st ground for a new trial is not supported by the proof in the case.
    The jury were instructed that, in strict law, the plaintiff was entitled to recover the value of Mary; but as it did not appear that her death might not equally have happened in the possession of the plaintiff, the damages should be nominal. It is believed that the verdict did conform to this advice.
    The verdict was for the plaintiff, and the defendant appealed and moved for a new trial.
    1. Because there is error in the verdict of the jury, in this— that the finding is for the full value of the negroes sued lor, and their hire, when it should have been only for the hire of the negroes from the time they were purchased, by the defendant at Sheriff’s sale, as the property of David Elkin; as it was fully proved, by plaintiff’s witnesses, that he had, in fact and truth sold or transferred, by way of mortgage, all his right, title, and interest in said negroes, on the 14th April, 1843, which was only one or two weeks after the negroes were purchased by defendant, and the plaintiff was therefore legally entitled to recover only for the hire until that time.
    2. Because his Honor charged the jury, that, on legal principles, the plaintiff was entitled to a verdict for the value of the woman Mary, who had died soon after the suit was commenced, which the jury gave to the plaintiff, when, under all the circumstances of this case, they should only have given hire until her death.
    3. Because the defendant was a subsequent creditor of David Elkin, without notice of John Ford’s claim to the negroes sued for-, and therefore, according to the case of Archer v. M’Fall, Rice L. Rep., p. 73, they were liable for his debt.
    4. Because the Court, in charging the jury, said to them, that the case of Archer v. M’Fall, carried that principle of law to the extreme limits, and was calculated to cut off all opportunity for doing acts of charity and benevolence, except at the hazard of having one’s property taken for the debt of the person thereby intended to be benefited; in which it is submitted there is error, as that case does not close the door against objects of charity and benevolence, as his Honor seemed to suppose; which misled the jury.
    5. Because his Honor, in his charge to the jury, said to them, this was really a contest between the creditors of John Ford and the creditors of David Elkin, and was therefore a just ground upon which they might presume that the claim of the plaintiff was founded on justice, as John Ford has now no motive to misrepresent—in which it is submitted there was error.
    6. Because David Elkin had the exclusive possession of the negroes from the 8th January, 1830, until the sale in April, 1843, and during all that time, exercised all the authority of master and owner, paying no hire, but paying taxes for them as his own (as proved by himself on the trial, he being a witness for plaintiff.)
    Under these circumstances, it is respectfully submitted, that said negroes became liable to all the creditors of said Elkin» who had no notice of the agreement between him and Ford. The verdict is therefore contrary to law and the evidence.
    M’Dowell & Thomson, for the motion.
    Black & DeSaussure, contra.
    
   Richardson J.

delivered the opinion of the Court.

This is a question between the creditors of J. Ford and D. Aiken, the creditor of David Elkin. The rights of D. Aiken depend upon the legal merits of this proposition, and that those particular negroes of J. Ford were liable for the debt of Elkin to him. Aiken’s proper complaint is, that he, a subsequent creditor of D. Elkin, was lured into a confidence, and trusted Elkin through his apparent right and property in the negroes. So that, as to him, it matters not whether Elkin was the vcal, or only the ostensible owner. His charge is, that the plaintiff permitted his son-in-law, Elkin, to pass for the owner: that is enough. The reply to this proposition denies that D. Aiken was a subsequent creditor, or had trusted Elkin on account of those negroes, and would make the case turn upon the question, whether Ford originally gave the negroes to Elkin, or only hired or lent them. But upon this particular head, at least since the verdict, it cannot be necessary to hesitate.

It has been put beyond controversy, that J. Ford never transferred his right and ownership of the negroes to Elkin. He did no more than deliver the negroes into the possession of Elkin, subject to the payment of a small sum of money, if ever demanded, Elkin paying the taxes and clothing them. Ford had a legal right to do this, and still remain the lawful owner. He put the staff into the hands of another, retaining his right to resume it. But the actual possession of the negroes by Elkin gave rise to his apparent ownership, and may have induced Aiken to trust and confide in the pecuniary responsibility of Elkin, as the true and legal owner. Did such false colors decoy Aiken to trust to an apparent sterling fund, and shall he find it a delusive bubble ? This brings us to the proper questions of ihe case. They aro tlie same as those decided by ibis Court in the case of Archer v. M’Fall, (Rice R., 73,) and before that case had. been carried into a general rule of law, namely: “that, if one man put his property into the hands and possession of another—not his mere agent—in such a way as to enable him to appear as the real owner; and the beneficiary, by reason of such, apparent ownership, get credit with a third person, a stranger to the true legal right and title, and trusting him in the confidence that he really owns such property, such property does, in virtue of this rule of law, become liable for the debt, so contracted, just as it would have been liable, in case such debtor had been the true owner.” This rule was introduced to prevent fraud upon strangers to the true right and title, it is to prevent fraud, but must not protect opposite fraud. It supposes, necessarily, a legal or technical fraud, arising out of the confident belief that the apparent is the true title, although no moral or intended fraud was committed by such debtor on the true owner. The principle is this—you shall not raise a deceptive confidence, and mock it. In such transfers of possession, even though intended as acts of beneficence, the owner must be careful that he does not give a species of practical letter of credit, to the extent of the property: he is not allowed to furnish the means of credit, and have that very means irresponsible lor the credit so obtained. This is the principle decided in Archer v. M’Fall. In that case the verdict went for Cherry, the creditor of Van Lawhon; Van Lawhon stood, as now stands Elkin. But I cannot perceive that, if it had passed for Archer, who stood as now stands John Ford» the present plaintiff, that this Court would have set it aside. In that case it was evident that Archer never gave the negro to Van Lawhon ; but the jury made her liable for his debt to Cherry, a subsequent creditor, because Cherry had been entrapped to credit Van Lawhon. In the present case, it is very clear that Ford did not give the negroes to Elkin; and the jury have found against his supposed subsequent creditor Aiken. By the verdict, they have negatived, either the assumption that Aiken was the subsequent creditor of Elkin, or else, if he was a subsequent creditor, they have denied that he gave the credit to Elkin, relying upon these negroes being his property. The latter is entirely a question of fact, upon the knowledge! mind and reliance of Mr. Aiken, which can be no more than inferred, and the jury constituted the proper legal tribunal to decide it. Upon the question, whether Aiken credited Elkin for the debt claimed after the 1st January, 1830, when Ford delivered the negroes to Elkin, so as to make him a subsequent creditor: or had before that time, at the formation of the partnership in 1828, given him the credit, out of which, and without any new credit a balance was struck, may admit of two opinions. My understanding of a subsequent creditor supposes, that in the original transaction, the party allowing the credit, relied upon the property in possession as the fund, out of which the debt might be paid; and that any possession subsequently acquired could not form a part of such reliance. For illustration, take Archer’s case. After the delivery of the negroes to Van Lawhon, Cherry sold his claims in the firm to Van Lawhon. This was entirely an original credit, and Cherry had a right and relied upon the entire visible estate of Van Lawhon; and Archer’s negroes formed a part. But if the former firm of Cherry & Van Lawhon had merely continued, and been wound up after the possession of the negroes by Van Lawhon, with a balance against him, this would not have made Cherry a subsequent creditor, with the peculiar rights attached by the rule in question. Archer’s property could not have been taken, simply because the negroes had increased the confidence of Cherry that his former credit would be paid. We could not make such stops in order to form a peculiar and new liability, extending the rule, and further encroaching upon Archer’s right in the negroes. Now then, I ask, if Aiken’s position and defence be not the very one in which Cherry is placed, in the foregoing change supposed in the case of Archer and M’Fall? We certainly would not apply the rule to an old bond or note on which there had been successive settlements, or substitutions of new bonds or renewals. We would go back to the original foundation and time of credit, in order to apply the rule, which renders liable the property of a third person, only in case of an original credit being bottomed upon it; and even that risk, in part upon the supposed negligence of the true owner, in contributing a possession which has enticed, though involuntarily, a new credit and creditor for the mere occupant of the property. In Archer’s case, the rule was made to attach to a possession allowed to Van Lawhon, from moral duty and parental love; and hence, perhaps, some criticism—but I think unjustly applied. But if we pass still onward, and apply the rule in favor of debts of doubtful beginning—and herein the burthen is necessarily laid upon the creditor—we may indeed strain the rule to an extravagant application, and render it irrational and odious. Upon the merits of the present case, therefore, my judgment is, that any other verdict than the present would have had little else to rest upon than vague generalities.

But on the other side, J. Ford’s claims have the full merits of Archer’s, and were proved to absolute certainty. And to counteract this, we have on the part of the defendant a reliance on these negroes, somewhat questionable, and a debt by no means certainly subsequent to the possession of Elkin, though there may have been an increased confidence in Elkin. How else, then, could any other verdict, but for the undoubted owner, Ford, be rendered.

In the additional ground to that on the merits, the Court can perceive no claim for a new trial.

The motion is therefore dismissed.

Evans J., Butler J., and Frost J., concurred.

O’Neali. J.,

dissenting. In this case, I am constrained to dissent from the opinion of the majority of the Court. From January, 1830, to ’43 or ’44, Elkin had possession of the slaves. This was evidence of a title which can seldom be gainsayed. But it is now undertaken to destroy that, and to shew that they were the property of Ford, by a memorandum of hire, at $25 per annum, dated 8th January, 1830. Elkin had, a short time before, married Ford’s daughter. When the negroes went into her husband’s possession, the law regarded it as a gift, and that was the conclusion to which every one had the right to come, notwithstanding this secret memorandum of hire. In the language of a great Judge, (Nott J.,) I would say, that all such loans or hiring ought to be construed gilts. How long was this hiring to continue? was it for one year, or for fifty ? From the language of the memorandum no one can tell. After a. lapse of four years, without a demand of hire, it seems to me the qualified estate ought to be regarded as absolute. The fact stated by Elkin, that he did not expect hire to be demanded, is enough of itself to shew that, this was a mere cover. But I regard the setting up such a hiring, as is done in this case, to preserve the estate in John Ford, as an evasion of the law of marriage settlement. “Here, a father says to his son-in-law, are several negroes which Í will give to you and your wife;” “no, says the son-in-law, I will not accept them, let them be settled on my wife and children.” Instead of doing so, with all the guards of recording, a slip of paper is signed by the son-in-law, acknowledging that ho has the negroes on hire, and, any time afterwards, the father may recover the property against the claims of existing creditors, or purchasers under them. This is a monstrous doctrine, and yet this very case is to give rise to it. The Judge below certainly destroyed by his comment the force of the authority of Archer v. M’Fall. To say of the case, that “the principle which it established carried the rights of creditors to the extreme limit of the law;” and then to tell a jury that they were bound by it, was in point of fact to make them feel that they were bound by a wisp of straw, instead of triple cords. That case placed the law right, in holding that possession of a slave by a son-in-law was in law a gift, and any thing which would make it less must be made known to persons who gave credit subsequent to the possession. In this case the same principle ought to have governed ; for a large part of Aiken’s debt against Elkin arose subsequent to the possession of the slaves ; for Elkin was in continual receipt of the partnership assets for many years after he had the negroes in possession: and of the eventual balance of $3,170 against him, a very small part is from the capital stock put in by Aiken in 1828.

Wardlaw J. concurred.  