
    Henry W. Brown vs. Marshall Forbes.
    F. sued B., in action of trover, for the conversion of a female slave. B. pleaded not guilty. Upon the trial it was shown by the evidence, that F. bid off the slave at a sheriff’s sale, paid for her with money he borrowed of T., at a store kept by F. & S., in copartnership, and allowed the slave to remain at the store; afterwards S. sold all his interest in the store, in which he included the slave, to F., hut the slave still continued in possession ofS., and was subsequently levied on, under an execution against S., but whether she was in the possession of S. at the time of the levy, was not clearly shown ; pending the levy, F. claimed the slave, but took no step to interfere with the sale; at the sale B. became the purchaser ; subsequently, B. caused her to be sold under an execution, in his own favor, against F., and bought her in at that sale for two dollars; in regard to the amount of damages, the evidence was conflicting, but the sum of eighty dollars was most distinctly established; the jury found for the plaintiff, and assessed the damages at one hundred and seventy-three dollars and fifty cents ; the defendant entered a motion for a new trial; the plaintiff thereupon remitted all of the damages, but eighty dollars, and the court then overruled the motion: Held, that the case presented one of those questions of weight of evidence, which is peculiarly a matter for the consideration and determination of a jury, and the motion for a new trial was, therefore, properly overruled.
    Error from the circuit court of Holmes county; Hon. Morgan L. Fitch, judge.
    This was an, action of trover, brought to the October term, 1842, of the circuit court of Holmes county, by Marshall Forbes against Henry W. Brown, for the conversion of a female slave, named Aggy. The defendant pleaded not guilty. At the April term, 1843, there was a mistrial. At the October term, 1843, the case was again tried, and the jury returned a verdict in favor of the plaintiff, and assessed his damages at one hundred and seventy-three dollars and fifty cents. The defendant then entered a motion for a new trial, pending which, the plaintiff remitted all of the damages, except eighty dollars, whereupon the court overruled the motion, and the defendant filed a bill of exceptions, setting out all the evidence adduced in the cause, which is substantially as follows : The plaintiff proved, by Edmund Pursell, that in 1838 or 1839, the negro woman, Aggy, was sold at sheriff’s sale, and bid off by the plaintiff, who obtained the money to pay for her, from Colonel Towns, at the grocery store kept by plaintiff and John Stumph in copartnership, and after the sale, the negro was left in the possession of Stumph. Wilson A. Purdow testified, that on the 18th day of August, 1839, he drew a bill of sale, which was produced and read to the jury, conveying all of Stumph’s interest in the grocery store, notes and accounts due the firm of Forbes & Stumph, and in a negro woman, named Aggy, aged forty-five or fifty years, which was the same mentioned in the declaration, to the plaintiff, for the sum of eight hundred dollars. Witness saw no money pass, or anything given by plaintiff to Stumph; and Stumph retained the possession of the negro. Witness never knew of her being in the possession of plaintiff. Brown knew that plaintiff had, at one time, set up a claim to the negro, and said he would give' an indemnifying bond, if one was required. The defendant then read to the jury an execution, in favor of Henry W. Brown against John Stumph, for ninety-two dollars and twenty-six cents damages, and nineteen dollars and twenty-four cents costs, which was issued on the 23d day of December, 1839, and on the 28th day of December, 1839, levied ón a negro woman, named Aggy, aged forty-five years, as the property of John Stumph. On the 20th day of January, 1840, the negro was sold, and purchased by Henry W. Brown, at the sum of eighty-five dollars and fifty cents, as appeared by the sheriff’s return. The defendant then proved, by William Stigler, that he, as deputy sheriff, made the levy and sale last above-mentioned ; that he found the negro at one Deloaches, near the Yazoo Swamp. Witness believed the negro, on account of her age, to be worth little or nothing. Elburn Slocum proved that John Stumph was working a raft on the Yazoo river, and made Deloaches his home; and that Forbes did not live about there. James Dealley testified that he did not consider the negro worth more than her board. John D. Wyatt, the sheriff of the county, testified that Forbes claimed the negro some time before the sale, but he subsequently, though before the day of sale, under the execution in favor of Brown, saw Forbes, and he declined giving a bond to try the right of property, and witness then understood him as setting up no further claim to the negro; and he consequently required of Brown no bond of indemnity, as he otherwise would have done. Witness believed Forbes was present when the sale took place; he was certain the attorney of Forbes was present, and no objection was made to the sale by any person. Witness further stated, that the negro might be worth seventy or eighty dollars to some men, but he would not hire her, even. He considered her board worth as much as her hire. The defendant then read an execution, in his own favor, against Marshall Forbes, and the sheriff’s return thereon, from which it appeared that the same negro was levied on as the property of Forbes, and on the 16th day of July, 1843, sold by the sheriff, and purchased by Henry W. Brown, for two dollars. This was all the evidence offered on either side. The defendant brought the case to this court by writ of error.
    
      Brown and Owen, for plaintiff in error.
    The whole of the testimony presented to the jury, in the court below, is embodied in the record, and we insist that their verdict is in palpable violation of the law arising on the facts established on the trial, and in opposition to the weight of testimony.
    1st. The plaintiff below claims title to the negro, by virtue of a bill of sale, from one John Stumph. The bill of sale is absolute and unconditional, and the witness to the bill of sale, W. A. Purdow, who was examined in the court below, proves that possession of said negro remained with said Stumph, and that he never knew of said Forbes having her in his possession. The witness further stated that he saw no money pass, or any thing given for said negro. This bill of sale bears date the 18th of August, 1839. Why said Stumph retained the possession of said negro, is nowhere explained by any of the witnesses. It is true they had been partners in a grocery, but that partnership was evidently dissolved when the bill of sale was given, for by that bill of sale Stumph sells to Forbes all his interest in said grocery, together with all evidences of debt, &c.
    Brown resisted the claim of said Forbes to said negro. 1st, upon the ground that he was a creditor of said Stumph, and that the leaving of said negro in his possession, after an absolute sale, was, if not fraudulent per se, at least prima facie fraudulent as to him, and threw upon the plaintiff below the onus proba?idi of showing the fairness of the transaction. See the case of Carter v. Graves, decided by this court, 6 How. 9. By looking into the bill of exceptions, it will be seen that the plaintiff in error obtained judgment against John Stumph the 2d of November, 1839, (a short time after the date of the bill of sale.) That the execution was levied on said negro, and sold by the sheriff to plaintiff in error, on 20th January, 1840. The witnesses, Stigler and Slocum, we think, conclusively prove that the negro was in the possession of John Stumph, at the time of the levy. John D. Wyatt proves that Forbes and his attorney were present at the sale by the sheriff to plaintiff in error, and that the sale was not forbid; he also states, in a conversation with said Forbes, shortly before the sale, that he understood him as setting up no claim to said negro.
    2d. In order to support this action, the plaintiff must have had the actual possession, or the right to the immediate possession. See 1 Chit. PL 150. Tn this case Stumph is proven to be in possession, and his possession was continued up to the time of the levy.
    3d. The court will perceive, from the record, that the appellant on the 27th of June, 1843, under an execution against said Forbes, at sheriff’s sale, purchased the said negro woman, Aggy. Now it is respectfully submitted, that if the court should be of opinion that said negro was not liable to a levy and sale, under the fi-fa. against Stumph, the only damages which Forbes could recover, would be the value of her hire up to the time of the sale, under the fi fa. against him. All the witnesses who speak on the subject, state that her hire was worth nothing, and none of the witnesses state, or set a value on said negro, except, perhaps, John D. Wyatt, who said she might be worth seventy or eighty dollars to some men, but that he would not have her even, and that he thought her board was worth as much as her hire. And yet upon this state of facts, the jury upon their retirement found a verdict for plaintiff below, for the sum of one hundred and seventy-three dollars and thirty cents. It is not shown how long the plaintiff below was held out of possession of said negro, and, therefore, the jury could have had no data upon which to have rendered a verdict for any amount. It is true that the counsel for plaintiff below remitted all the damages except eighty dollars. Still, we contend that the verdict and judgment were directly contrary to the law arising upon the facts in the cause, and the damages, (if any the plaintiff below was entitled to,) were excessive. We therefore think the verdict ought to be set aside, and a new trial awarded.
    Brooke, for defendant in error.
    The plaintiff in error is much mistaken in supposing that the claim set up by Forbes to the negro in question, is based entirely upon the bill of sale from Stumph. The testimony of Pnrsell, set out in the bill of exceptions, shows that Forbes first purchased said negro at sheriff’s sale, and obtained the money to pay for her from one Towns. That at that time, Stumph and Forbes were in partnership ; and it is possible that Stumph may, by virtue of such partnership, have had an interest in the negro. This interest was assigned to Forbes afterwards, by the bill of sale referred to. The possession or presumed possession, by Stumph, does not indicate the least appearance of fraud of itself, and there is no other testimony to show a fraudulent combination between the two. The whole was a question for the jury, and, on the evidence, they found for the plaintiff.
    The defendant, on trial, produced an execution emanating from a justice’s court in Yazoo county, against Forbes, and set up title to the negro, by virtue of a sale under this. This execution was issued, it appears, sometime after the commencement of the action of trover, and, of course, the sale under it could not affect plaintiff’s right one way or the other. The negro was in Brown’s possession, or that of his assignee, at the time of the levy, and there is nothing to show that Forbes had notice of it. The sale, being for two dollars and fifty cents, shows that it was a mere device, on Brown’s part, to protect himself from the consequences of his own conduct.
    On the question of possession, counsel would remark further, that there is no' evidence that the negro was in possession of Stumph at the time she was levied on, by the sheriff, as Stumph’s property. The deputy, who made the levy, states that she was at the house of one Deloach ; and another witness proved that Stumph was working on a raft, in the swamp, near Deloach’s, and made that his home; whether these facts proved a fraudulent possession on the part of Stumph, was properly left to the jury, and the court will not disturb their verdict. As to the value of the negro, it seems that Brown purchased her himself for eighty-five dollars, in 1840, and one of the witnesses said she was worth seventy or eighty dollars. The jury, it is true, found a verdict for one hundred and seventy-three dollars, but by the plaintiff it was reduced to eighty dollars. The evidence, certainly, would have warranted a verdict for this amount; and, as to this, the plaintiff in error has no reason to complain.
   Mr. Justice Thacheb.

delivered the opinion of the court.

Forbes instituted an action of trover against Brown, founded upon the conversion of a female slave, named Aggy. Under a plea of not guilty, a jury found for the plaintiff below, one hundred and seventy-three dollars and fifty cents damages. Upon a motion for a new trial, the plaintiff below remitted of the damages all but eighty dollars, and the motion was overruled.

By the evidence, it is shown that Forbes bid off the slave at a sheriff’s sale, borrowed the purchase-money of one Towns, at a store, which Stumph & Forbes kept in copartnership, and allowed the slave to remain there. Afterwards, Stumph sold to Forbes all his interest in the store, in which he included an interest in the slave, but the slave continued in the possession of Stumph. The slave was subsequently levied upon, by virtue of an execution against Stumph; but it does not clearly appear that she was in the possession of Stumph at the time of the levy. At this time Forbes laid claim to the slave, but took no steps to interfere with the sale under the execution. Brown became the purchaser under this sale, and afterwards caused the slave to be resold, under an execution of his against Forbes, and again became the purchaser for the sum of two dollars. It is naturally to be inferred that, at the period of the second sale, the slave was in the possession of Brown. The evidence bearing upon the amount of damages proper, in the case, was conflicting ; but the sum of eighty dollars appears to have been most distinctly established.

This case presents one of those questions of right, which is peculiarly a matter for the consideration and determination of a jury; and, while the facts possibly raise some doubt of the propriety of the finding in this instance, they do not show that strong preponderance of evidence against the finding, which would warrant this court in setting aside the verdict.

Judgment affirmed.  