
    
      Meedy Mays, adm'r de bonis non of Stephen Whitley, vs. James Gillam.
    
    Where the owner of a slave has emancipated him contrary to law, although he may have the right to reclaim him by seizure and conversion, under the Act of 1800, yet, without such seizure he has no right on which he can maintain trover, although the slave has not been formally seized and converted by any other person.
    
      Before Wardlaw, J. at Abbeville, Spring Term, 1845.
    Trover for an old negro man named Bill Brown. Suit commenced 30th September, 1843. Pleas, the general issue and statute of limitations.
    Bill Brown was a cake baker, and had a wife at defendant’s. In January, 1835, he had, at the sale of the estate of M. Abney, been purchased by B. Broadaway, at the price of $355, payable 1st January thereafter.
    On 20th May, 1835, a written agreement was made between the defendant and Broadaway, whereby it was stipulated, that if the defendant should, at any time, pay to the said Broadaway $355, with interest thereon from the 1st January, 1836, till the time of payment, the title of Bill should be vested in the defendant; with the express .understanding and agreement, that whenever the said Bill shall pay the said sum of $355, with interest as aforesaid, and conform to the requisitions of the law, in such case made and provided, that he is to become free.
    The defendant made payment to Broadaway, and on 29th December, 1837, a bill of sale by the defendant to Stephen Whitley, and a contemporaneous covenant by Whitley to the defendant, were made ; the former of which was produced by the plaintiff, and the latter by the defendant.
    Whitley and the defendant lived in the same neighborhood. Bill Brown never was in the actual possession of Whitley ; but after the execution of these papers, as before, seems to have controlled his owntime, being of tener at the defendant’s, with his wife, sometimes laboring for wages, which he received from the persons who employed him, and sometimes going about in a cart to sell his cakes.
    
      Whitley was called his guardian, and occasionally gave him passes in 1838 and the earlier part of 1839 — whether after July, 1839, was left doubtful.
    In 1839, Bill made payments- to the defendant on the covenant, as thereon indorsed, in the whole amounting to $379,09 — leaving, by a close calculation, about 70 cents due at the date of the last payment — 24th July, 1839. After that last payment, Whitley repeatedly said that Bill had paid for himself, and that he, (Whitley,) had nothing more to do with him. He spoke of money which he owed Bill for work, and referred persons who wished to hire Bill, to Bill himself. The defendant, sometimes, in the latter part of 1839, gave passes to Bill; but there was doubtful testimony of his having done the same in 1838.
    On 12th December, 1839, the defendant presented to Whitley the memorandum, which is written on the covenant, but Whitley refused to sign it. Between that day and Christmas, 1839, Whitley died. Soon afterwards administration of his estate was granted : and subsequently, administration de bonis non to the plaintiff. Demand by the plaintiff, and refusal by the defendant, were admitted.
    The presiding Judge refused a motion for non-suit. He considered that the stipulation that Whitley should u not sell nor transfer,” <&c. was a nugatory attempt to restrain the jus disponendi incident to ownership ; that the agreement that Bill should be free, was contrary to law and void; that the payments made by Bill, were payments made by his master (Whitley;) and that the condition that Bill should revert to the defendant, upon Whitley’s death, could be of no avail without the defendant’s refunding, or offering to refund, to Whitley or his representatives, the sums paid on the covenant.
    He left it to the jury to decide -whether there had been a conversion by the defendant, at any time more than four years before the commencement of the suit; and whether there had been an abandonment of right by Whitley, or his representative, and seizure by the defendant or any one else, of Bill as bonum vacans.
    
    The jury found for the plaintiff, $414.76.
    The defendant appealed, and now renewed his motion for a non-suit, on the ground that the bill of sale relied on, and the note from Whitley, the plaintiff’s intestate, to the defendant, showed that the plaintiff’s intestate, at most, had only a qualified right to the slave in question ; and that the evidence of the plaintiff showed that his right was defeated and had passed from him before the commencement of his suit.
    
      McGowen, for the motion.
    
      Sullivan, contra.
   Curia, per Wardlaw, J.

The views taken by the circuit Judge seem to have been correct throughout, except his requiring the defendant to show a seizure of Bill by the defendant or some body else in derogation of the plaintiff’s right, and sutmitting the question of such seizure to the jury. That was an immaterial matter, if there was an abandonment of right by Whitley, or an emancipation of the slave by him, contrary to law, such as would have authorized a seizure by another person. The case of Linam vs. Johnson, 2 Bail. 137, shows that the right of seizure by strangers is inconsistent with such right of property, or of possession, in the former owner, as will maintain the action of trover.

From the plaintiff’s own evidence, then, it is clear that there was no possession of the slave by Whitley at his death, nor any by his administrator since ; that the plaintiff acknowledged a conversion by the defendant before the commencement of the suit, but not four years before; that Whitley had, after July, 1839, neither claimed nor exercised ownership over Bill, and that neither he nor his representative has seized him since ; that so far as Whitley could make him so, Bill was free, and was in the condition of a slave emancipated contrary to law — that is, one that the owner has relinquished all right of dominion over; that Bill was therefore subject to seizure, and whether seized by the defendant, or anybody else, or not, could not, without some act of seizure on his part, be recovered by the former owner.

The motion for non-suit should then have been granted, and a non-suit is now ordered.

Richardson, O’Neall, Evans, Butler and Frost, JJ. concurred.

Note. — The following arc copies of the bill of sale, covenant, receipts and memorandum, referred to in the statement of the case. R.

Received, the 29th December, 1837, of Stephen Whitley, his note for three hundred and fifty dollars, which, when paid, will be in full compensation for a certain negro man called Bill Brown, which said negro he is to exercise the right of ownership over; but not to sell nor transfer him to any person whomsoever, without the consent and approbation of me, my heirs or assigns. And should the said Whitley die before the said note be paid to me, the said negro is to revert to me, my heirs or assigns, by my refunding the amount which said Whitley may have paid on said note.

Given under my hand, the day and year above written.

JAMES GILLAM.

Three days after date, I promise to pay James Gillam, or bearer, three hundred and fifty dollars, for value received, being the purchase money for a man, (Bill Brown;) and I further bind myself not to sell nor transfer the said negro to any person whomsoever, without the consent and approbation of the said Gillam. It is further understood and agreed, that when he, the -said Whitley, or Bill, shall pay the above sum of three hundred and fifty dollars, with interest thereon, he shall be a free man, if he can give the necessary security, and pay the said sum in the space of three years.

Given under my hand and seal, this 29th December, 1839.

STEPHEN WHITLEY, [l. s.]

Received, 4th January, 1839, two hundred dollars on the within.

Received, 4th May, 1839, one hundred dollars on the within.

Received, 24th July, 1839, seventy-nine dollars and nine cents on the within.

Memorandum. — That I have not paid any part of the within note, and, therefore, set up no claim to the within named negro, Bill; he having paid for himself; and he is to be considered the property of James Gillam, until he is regularly liberated according to law.

12th December, 1839.  