
    THOMAS BAILEY, Trustee, v. JOHN C. MOORE, et al.
    
    Where a parol agreement was made between A and B for the exchange of slaves, and A’s slave immediately went into the possession of B, but the-latter’s slave being runaway, it was agreed! that A should take him into possession whenever he could do so, (at his risk) it was held that on A’a afterwards taking possession of the runaway slave, the title to him passed.
    And it was further held, that such a contract made with the attorney of B-under a parol authority, (followed’ by delivery) was valid to pass the title.
    AgtioN of detinue for a slave, tried before Bailey, J., at the last Term of Johnson Superior Court.
    On the 8th of November,. 1854:, Henry R Nelson made to the plaintiff,, as trustee, a deed for six slaves, valued at about $4:000, to secure debts amounting to about $190, among which' slaves-was-the man Hinton, now in controversy. In November following, the plaintiff, as trustee, put up the slaves to auction, and they were bid off by divers persons. The slave, Iiinton, was then- runaway, and he- was cried off to a bidder,, on the condition, that if the purchaser did not get him, he was to pay no money. The slave not coming in, this sale was,. after$i month elapsed, rescinded by the parties. Afterwards, 19th, February, 1854:, Nelson executed to the- defendant,. Moore, the following instrument: “Received- of John 0. Moore his negro man, Cager, in place of my boy, Hinton, to wdiich I warrant the right and, title to be good against the claims of all persons- whatsoever,, but do- not warrant the delivery of the said Hinton, as he is now in the woods or runaway';. therefore, the said Moo-re takes the-said Hinton as h.e runs.” Signed and sealed'- by the said Nelson. Cager went into the possession of Nelson, and continued to work for him until his death, in July, 1855. After this trade, Hinton was captm-ed and went into Moore’s possession. After the sale of the slaves, under the deed of trust,, several of them continued in possession of Nelson.
    The defendant, among other defenses, contended that the exchange was made-by the consent of the plaintiff;, that ha-authorised it before it was made and assented' tout afterwards; that the slave, Cager, after the exchange, was under the control of the plaintiff, or of Nelson, as his agent, and the defendant offered evidence of this defense-, both by the conduct and declarations of the plaintiff, but produced nc writing showing such assent or authority.
    The Court was of opinion, and charged the-jury,, that although they should believe the exchange was- made by Moore and Nelson in the manner alleged, and by the parol consent and authority of the-plaintiff, or of Nelson, as- his agent,.still the plaintiff was entitled to recover.
    Defendant’s counsel excepted, Yerdiet and judgment for plaintiff. Appeal by defendant..
    
      Phillips, for the plaintiff.
    
      Wmsion, Sr., and Moore, for the defendant.
   PuaRsoet, G. J.

Assuming the facts to be that Nelson, having a verbal authority from Bailey to exchange Hinton-for Cager — "made the exchange, received Cager from Moore, and told Moore to take possession of Hinton, as his property, whenever he could do so — that Hinton was a runaway, but was afterwards apprehended and taken into possession • by Moore as his property, in pursuance of the agreement, his-Honor was of opinion that the plaintiff was entitled to recover ; we do not concur.

The statute provides that “ all sales of slaves accompanied with actual delivery of the slave to the purchaser shall be* valid.” Eev. Code, ch. 50, sec. 13.

It was insisted by Mr. Phillips, that the sale or exchange (which is the same thing) must be accompanied with delivery ; that is, that the sale and delivery must be at the same time; and that the delivery must be actual, that is, although it need pot be a delivery from hand to hand, still the slave must be present and the possession be changed at the time. Eor illustration, he referred to the old doctrine of “ livery of seizin in deed,” where the parties went upon the land and made livery, and livery in law, when the parties did not go ■on the land.

We think neither branch of this proposition can be maintained, and the counsel has fallen into error by not distinguishing between .a contract ©f sale” and a sale or contract executed, by which the title passes.

At common law the title to personal property passes by a sale without delivery. For instance, A sells B a horse and receives the price ©ma note for it; the horse, although ten miles distant instantly 'becomes the property ©f B. This principle of the common law was confined to sales, for delivery was necessary to pass title by a gift, and by the civil law delivery was necessary to pass title either by sale or gift. In respect to slaves, (the most valuable species of personal property,) it was seen that this rule of the common law opened the door to •fraud and perjury. To remedy this evil, the statute provides that all sales of slaves shall be in writing, attested by a credible witness, unless the sale be accompanied with the actual deliv-tery of the slave to the purchaser, so as to give notoriety to the transaction by a change of possession, a fact about which there can be no mistake, and consequently, no room for perjury. The object of the statute is to change the common law in respect to the sale of slaves,, and to proyide that the title shall not pass as soon as “ the bargain is struck,” but shall remain in the vendor until there is an actual delivery, which is fully accomplished by treating the bargain or agreement to sell as merely inchoate and of no effect until the sale is consummated by a change of possession; when that is done, there is a sale, and not before, so that literally, the sale is accompanied with an actual delivery. For instance, A sells B a slave and receives the price; at common law the title would pass instanter; but under the statute it does not pass. If, however A, on the next day, carries the slave to B and delivers him, the sale is consummated, and the title passes. So, if after the agreement to sell, A says to B, “ the slave is at my plantation, go and take possession of him as your property, ¡and, accordingly, B, on the next day, or the next week, goes •■•and tabes the negro into possession and carries him home with ■him, there is then a sale, and the title passes by the change ■of possession.

The allusion ■of the counsel to the doctrine of “livery of ■seisin,” furnishes an apt illustration, and when followed out, •supports the correctness of our conclusion. If the parties go >on the land and the feoffor makes livery to the feoffee, the ■title passes instanter.; but if the parties do not go on the land, the livery of seisin is simply livery in law, and the title does not pass, unless the transfer is afterwards consummated by the entry of the feoffee in the life-time of the parties. So the liv•ery in law is inchoate merely, but still is a foundation for the feoffment to rest on, so that it may be consummated and pass the title by the fact of the feoffee’s afterwards taking possession, and thereby giving notoriety to the transaction, so that every one may see that the feoffor has ceased to be the ■fee-holder and the feoffee has taken his, place.

To the suggestion that livery in law cannot be made by attorney, the reply is, livery in law was only allowed when the feoffor could not go on the land for fear of bodily harm. This ■is personal to him, so he cannot in such a case act by attorney. This reason has no application to a sale or contract to sell a slave, which, under a general rule of law, may as we'll be ■done by attorney as in person $ faeit per alittm, faeitper se. There is error. Venire de novo.

Per CueiáM, Judgment reversed.  