
    *Charles Banks ads. Francis Hatton.
    
    In trover the measure of damages is the value of the property, and interest thereon. If brought for conversion of negroes, their value, and the value of their labor, 
      
    
    Declarations made by a father, when he sent negroes to a child, are admissible to ascertain whether a gift or loan was intended, though made in the absence of the child.
    Trover for three negroes. Tried before Mr. Justice Gantt, at Edgefield, March Term, 1818.
    It appeared that the plaintiff had married the daughter of the defendant; that some time after his marriage, the negroes in dispute had been sent by the defendant to him, and that he had them in possession two or three years; that they were considered by his neighbors as his property. About the expiration of the third year, they were taken away by Mrs. Banks, wife of the defendant. That the plaintiff demanded them, and that the defendant refused to give them up. They were proved to be worth about $1400.
    On the part of the defendant, it was proved that when the negroes were sent by the defendant to the plaintiff, he called on his son and family to witness that he sent them as a loan, and that the plaintiff, while in the possession of the negroes, had said he had been offered a great price for them, and that if they had been his, he would have taken it. It was also proved by a witness who lived with the plaintiff, that he considered the negroes the property of the defendant. The son of the defendant proved that it was the usual practice of' his father to lend negroes to his children; and that he had, in other instances, taken them away. He valued the negroes at $900.
    The jury found a verdict for the plaintiff for $1500. The defendant now moved for a new trial:
    1. Because the verdict is against evidence, and the damages excessive ; the value being fixed by one who best knew the negroes, at $900, and this not being a proper case for vindictive damages.
    *2. Because Bank’s declarations, when he sent the negroes, and the plaintiff’s subsequent declaration, after be had them in possession, prove that it was a loan, and not a gift.
    
      Crenshaw, for the motion. OWeall, contra.
    
      
      
         *Kidd v. Mitchell, post.; Wilson & Gibbs v. Comine, 2 John. Rep. 282, and see note h.
      
    
   The opinion of the Court was delivered by

Colcock, J.

It is stated that the presiding judge instructed the jury, that they were at liberty to give “ smart money” in estimating the damages. In the action of trover, the correct measure of damages is the value of the property, and interest thereon; or if the action be for the conversion of negroes, the value of their labor, in addition to the value of the negroes. It is impossible to determine by what rule the jury have been governed; but from the amount of the verdict, it is highly probable that they were influenced by the charge of the presiding judge ; and I therefore think the defendant entitled to a new trial on this ground: It is further stated by the presiding judge, that he charged the jury that the declarations of the father, at the time he sent the negroes to the plaintiff, should have no weight in their determination, because the plaintiff was not present : and that they should not regard the declarations of the plaintiff, because he might have been ignorant of his right. As the case turned on the question, whether this was a gift or a loan, these circumstances were entitled to consideration,. and were strictly within the rules of law. I do not determine on their effect, but if the jury had not been directed to lay them out of view, it is probable they may have led to a different result. I am, therefore, of opinion that the defendant is entitled to a new trial on this ground also.

The motion is granted.

Grimke and Johnson, JJ., concurred.

Nott and Cheves, JJ., dissented. 
      
       3 Strob. 375; Post. 240.
     
      
       See 11 Rich. 370; 7 Rich. 57; 4 Rich. 175; 5 Strob. 46: Harp. 374; 3 Strob. Eq. 371.
     
      
       Hatton v. Banks.
      Mr. Justice Nott :
      “Damages for the detention maybe given, according to the nature of the thing converted or detained; as for instance, for the use of money, the interest may be made the measure of damages, or the value of their labor, in the case of negroes. Buford v. Fannen, 1 Bay, 270. Sometimes the increased value may be added, as was decided in the case of Kidd and Mitchell, in this Court, (post. 334.) The defendant is not to be benefited by his own wrong. Neither can the rights of the plaintiff be affected by the death or destruction of the property, after demand and refusal.”
      ‘11 would nevertheless observe, that it is, at least, questionable, in my mind, whether these pretended loans ought not always to be construed into absolute gifts, whatever parol condition may be annexed to them.”
      Justices Colcock, Johnson, Richardson and Gantt, concurred.
      Mr. Justice Huger absent, on account of sickness.
      N. B. This case came up on an appeal from the new trial granted in the above case, and was tried May, 1820, Columbia.
     