
    
      Samuel Guerry and Sarah his wife vs. Samuel Kerton.
    
    The plaintiffs’ negroes were purchased from a third person, by C; D., on the joint account of himself and the defendant. After notice of the plaintiffs’ title, C. D. sold the negroes for the benefit of himself and the defendant. Htld, that the sale by C. D. was a conversion by both himself and the defendant.
    Ordered, in trover-, that a new trial be granted, unless the plaintiffs release apart of the damages.
    
      Before Evans, J, at Georgetown, Spring Term, 1845.
    This was an action of trover, for a negro woman named Elsey, and her four children.
    Elsey formerly belonged to E. Barnett, who, by his will, gave the residue of his personal estate to his four daughters. The will contains a limitation over, that if bis daughters Elora or Jane should die without leaving issue of their bodies, the proportion or share of such to return to the other, and to his son John. The testator died soon after, and on the division of the estate Elsey was allotted to Elora, who. married Thomas White. Mrs. White died about • a year before the trial; all the rest of the family died before her, except Jane,, who, with her husband, were the plaintiffs in this action. The negroes were in White’s possession up to the death of his wife, except the third child of Elsey, named Leah, who had been sold to J. J. Dickinson some short time before. Within a few days after Mrs. White’s death, Elsey and her remaining children were carried to Georgetown, and sold to Dickinson for $800. Perhaps the case will be better presented by giving .the whole evidence.
    Moses Playor. Knew Elsey in White’s possession j she had four children ; the eldest a girl about twelve years old when sold — the next a boy, two years younger; the next a girl, two years younger than the boy; the youngest about a year old ; they were. “ exactly good looking children.” The children’s names were Lydia, Charles, Leah and Anthony. He warned- Dickinson that the property had teen entailed before Mrs. White’s death. White offered to sell the oldest to him for three hundred dollars.
    
      Captain Eldridge. In March, 1844, he was master of the sch. Consul, sailing between Georgetown and Charleston ; he carried Elsey and her four children to Charleston; the defendant, Kerton, requested him to take them ; he did not say whose they were ; Kerton directed him to deliver them to Dickinson, in Charleston; they were entered at the custom house on the evening of the 4th March ; he sailed the next morning, and arrived in Charleston at 2 o’clock the next day, when Dickinson took charge of the negroes ; he received the passage money at Kerton &> Dickinson’s store.
    
      Mr. Roberts. Was in the custom house as assistant, in March, 1844; the negroes were entered there ; he received the manifest from Capt. Eldridge — Kerton was present; the manifest states that Kerton & Dickinson were the shippers ; they had previously shipped slaves. It is usual to ask the names of the owners, which he supposes was done on this occasion; Dickinson <fc Kerton are engaged in merchandize, and in buying and selling negroes.
    
      R. E. Fraser. Served a written demand of the ne-groes on Kerton, on the 5th March, at 3 o’clock; Kerton made no answer to the demand. A previous written notice and demand were served on Kerton by Mr. Wilkinson, at half past 2 o’clock, and a copy left for Dickinson.
    
      V. Anderson. Guerry did not know the negroes, and he came with him to Georgetown in pursuit oí them, and to identify them. This was within two weeks after Mrs. White’s death ; saw the names of the negroes at the custom house, and determined to pursue them to Charleston ; went to the stage office, kept by Mrs. Lester, and paid for their passage in the stage, to start at 4 o’clock; when the hour arrived, went to the stage office — the driver refused to receive them, although the stage was empty ; said ail the seats were engaged some weeks before ; offered to ride on the box, the top, or the baggage, but were refused. The stage left the office without any passengers; started to Charleston on horseback, and arrived there on the morning of the 8th ; went immediately to Col. Memminger; they had some information that the negroes were in the possession of Gilchrist, a broker; carried a letter to him making a demand, but he said he did not have them ; saw Dickinson there; he asked if' they were the men who had come in pursuit of the negroes ? said he had sent them from Georgetown to Charleston, and from thence to New Orleans 5 returned to Col. Memminger’s, and told him, and received a written demand and‘notice, to be served on Dickinson — searched for him, but he was no longer to be found.
    
      G. C: Munro. The negroes were brought to town for ■sale; the man who brought them said they belonged to White, and that Dickinson had the refusal of them ; Mrs. Lester is the stage agent; Dickinson is her son-in-law now; there are two stages on the line — one holds six and the other four passengers, besides those who go outside ; would not have given much more than $800 for the he-groes ; on a credit tKey might have sold for 20 or 25 per cent more.
    Mr. Atkinson valued the negroes as follows : Elsey 4 or 500 hundred dollars, Charles 275 dollars, Leah 200 dollars, Anthony 100 dollars, and Lydia 300 dollars, from Playor’s description of them.
    Mr. John A. Allston valued them, from description, as follows: Elsey 500, Lydia 300, Charles 200, Leah 150, and Anthony 100 dollars.
    
      Defence.
    
    
      White. Mrs. White; his step-mother, requested the ne-groes should be sold after her death, and told his father to use the money for his own purposes. He sold Leah to Dickinson during Mrs. White’s lifetime, in 1843; there were mortgages and judgments against his father-, which were paid out of the price of Leah ; he brought them to Georgetown a few days after M.rs. White’s death, and offered them for sale openly to several persons ; bargained them to Dickinson the evening of the day he brought them, for $800. Dickinson told him Kerton had nothing to do in the buying the negroes ; they sometimes bought negroes together; he left the negroes in Dickinson’s charge, and went home to Williamsburg; Dickinson came to his father’s, and the bargain was confirmed, and the price paid; Elsey was a common field negro ; his father had her 15 years ; he represented her as good property; had heard the property was entailed; it was the last of February that he sold' them ; he brought them openly in a cart; Moses Playor assisted him in selling Leah,' and represented her as good property, to Mrs. Lester and Dickinson.
    
      Buflcin. In February, 1844, Dickinson lived with Ker-ton ; all his property was there; they merchandized together, and sometimes bought negroes; Kerton sent a negro girl to his house to nurse; said, when applied to for one, he would send her if Dickinson was willing ; had her 3 or 4 weeks ; the woman went about the town ; Ker-ton or Christie was Dickinson’s agent, when absent.
    
      A. W. Dozier. Bought a negro from Dickinson in 1843 ; did not know Kerton in the trade ; they have both bought negroes.
    
      Col. Commander. Dickinson lived with Kerton, and had his property there, up to the time of his marriage in May. He is a speculator, and has an interest in a steam’ saw-mill now erecting ; has known Dickinson buy property at sheriff’s sale, and the title made to him, whilst he was in company with Kerton.
    
      G. C. Munro. Recollects the negroes had been brought to Georgetown before the time they were sold ; this was in Mrs. White’s lifetime; the man who brought them said' there was some jealousy between the woman and her mistress.
    
      Mr. Munro. Dickinson and Kerton trade in negroes as a part of their business ; recollects to have heard at the time that Dickinson bought for himself; Kerton was not the owner of the stage from Georgetown to Charleston,1'' but of the Cheraw stage, connecting with it at Georgetown.
    The jury was instructed, 1. That if Kerton had no interest in the negroes, and was a mere agent to ship them, aud had done so before he had any notice of the plaintiff’s title, then he was not liable.
    
      2. If they were joint owners, then the shipping them off for sale by Kerton, coupled with the subsequent shipping by Dickinson, and sale, (after notice of title in the plaintiffs) on their joint account and for'their joint benefit, was a conversion by both, and rendered each liable. The jury found a verdict for the plaintiff for $1850, which, according to the evidence, was above the value of the ne-groes ; but the valuation set by Mr. Atkinson, the foreman of the jury, and by Mr. Allston, was founded on no personal knowledge, but on the description given of them.
    The defendant appealed, and now moved for a new trial, on the following grounds, viz:
    1. Because his Honor erred in charging the jury, that if they found the negroes in question to have been purchased in the co-partnership name, the conversion of them by one of the co-partners was suificient to charge the other co-partner in an action of trover.
    
      2. Because, in the verdict of the jury, they have neither confined themselves to the highest value of the negroes, as proved on the trial, together with the hire, or to the interest thereon — but have given vindictive damages, which is not allowed in an aetion of trover.
    3. 'Because there was not the slightest evidence that the defendant had any participation whatever in the purchase of the said negroes ; so that the verdict of the jury is not only without evidence, but in the very face of the evidence.
    
      Munro and Mitchell, for the motion.
    
      Wilkinson, contra. >
    
   Curia, per Evans, J.

I think the jury were well • warranted in the conclusion that the negroes had been purchased on the joint account of Kerton and Dickinson ; and if so, the sale by one, after notice, for the benefit of both, was a conversion by both. Indeed, I think there is little doubt that the refusal of the stage driver to take the plaintiff to Charleston, was a contrivance of the partner in Georgetown, to prevent the plaintiff’s reaching Charleston until after notice had been given to Dickinson that the plaintiff was in pursuit of the negroes, so as to enable him to put them out of the way.

But the jury, in their indignation at the defendant’s conduct, have clearly given a greater amount of damages than they were authorized by law to do. In trover, according to all the authorities, the value of the negroes, with hire or interest, was the legal measure of damages. The highest price set on the negroes was $1375. From the conversón to the trial was about thirteen months. The interest for this time is $104, making in all $1479.

This is the highest verdict, according to the evidence, that the jury could have given. There must, therefore, be a new trial, unless the plaintiffs release all of their verdict above that sum. If they do so release, then the motion for a new trial is refused.

RichaRdson, O’Neall, ButleR, WaRdlaw and Frost, JJ. concurred.  