
    J. A. Robertson, et ux, vs. Mrs. Wurdeman.
    Pending an action of trover against the defendant, for the value of a negro woman, the defendant sold her, and whilst in the possession of the purchaser, she was delivered of a child. Held, that the defendant was not responsible in an action of trover, subsequently brought for its value.
    Nor would the liability of the .defendant be different, though a count in case were inserted in the declaration for the violation of a promise to keep the woman until the action for her value was determined.
    BEFORE O’NEALL, J., AT CHARLESTON, MAY TERM, 1837.
    This was an action of trover brought for the recovery of the value of a negro child. The value of the mother of the child, and her children, born before the institution of a former suit, between these parties, had been recovered; pending that suit, Mrs. "Wurdeman sold the negro woman and her children. After that sale, the child, the subject matter of this suit, was born in New Orleans. It never was in the defendant’s possession, power, or control.
    The declaration contained a count in case, on a promise by Mrs. Wurdeman to keep the mother until the former suit was tried.
    His Honor decided that the plaintiffs were not entitled to recover; the defendant could not convert that of which she never was in possession. The plaintiff’s right to recover against the person in possession in New Orleans was perfect. Nor could an action be sustained for the negro child, on a promise to keep possession of the mother until the former suit was tried. The plaintiff had recovered the full value of the slaves in esse at the time that promise was violated. The mere chance that the woman might have had another child, if she had remained in Mrs. Wurdeman’s possession, could be no ground of action; nor was there any consideration to support the promise.
    A nonsuit was accordingly ordered, and the plaintiffs appealed, on the grounds,
    
      1st. That it has been decided by the Courts of this State, that neither a child born pending a suit for its mother, nor its value, could be recovered in that suit, but must be the subject of another suit; and in the decision on that point, no difference is made as to the suit being brought against the original defendants, or a purchaser pending the suit.
    2d. That the testimony offered ought to have gone to the jury, in support of the second count in the declaration, in which defendant was charged as liable for damage in violating her contract to keep possession of the mother until the end of the suit; and if she had retained possession, she would certainly have been liable for the child’s value.
    3d. That if the case had gone to the jury, it was fairly a subject for their consideration, whether the defendant, under all the circumstances, was not a trespasser and liable for damage to plaintiffs.
    4th. That the purchaser being liable to a suit, does not necessarily exonerate the defendant.
    
      Lance, for the plaintiffs.
    
      Yeadon. contra.
   Curia, per O’Neall, J.

This Court concurs in the decision below.

The motion is dismissed.  