
    
      William R. Wilburn ads. M. B. Bogan.
    
    1. Trover for two slaves. Plaintiff offered in evidence two bills of sale from I. H., of different dates, and proved possession under them, from their date to the conversion. The defendant set up title in one F., and relied upon a parol gift, made by H. to his illegitimate daughter, whom he acknowledged, and who intermarried with F. The gift, it was alleged, was made more than twenty years before, when F’s. wife was an infant, living with her mother, and at a time when H. was free of debt. An attempt was also made to impeach the sale by H. to plaintiif, for want of consideration, inadequacy of price, and imposition. Plaintiif, in his reply, relied on the continued possession of H., from the date of the alleged gift, separate and apart from that of the donee or her mother. He went into proof of H’s. embarrassed circumstances for several years before the sale— also of the payment of numerous debts for him, advances of money, together with H’s. admissions and settlements made with him, to show that plaintiff was a subsequent purchaser for full consideration. The defendant offered to rejoin, by proof as to a mortgage, to the reply which plaintiff had made to the defendant’s attack upon the bills of sale. This evidence hdd to be cumulative, and properly rejected.
    2. F. had been sued in trover for one of the negroes for which the present action was instituted, and a recovery was had for the price and hire, from the time of the conversion to the verdict, which recovery had not been satisfied; but pending the suit against F., the negro for which he was sued came to the possession of the present defendant, and the present action was commenced. So far as regarded the value of the slave recovered from F., it was held a bar to this action. New trial ordered, unless the plaintiff entered a remitter of the damages as to the slave, the subject of the former recovery.
    3. A verdict in trover without satisfaction, changes the property, and transfers the right to the defendant. See Rice Rep. GO. (1.)
    (1.) See Kent, 386 — 7. Yelverton Rep. 68. Morrell vs. Johnson, 1 Hen. & Murf. 449.
    
      Before Earle, J., Union, Special Term, 1841.
    The following is his Honor’s report:
    Trover for two negroes, Jess and Mingo.
    The plaintiif claimed as purchaser of both negroes, from Isaac Harlan, and produced in evidence, bills of sale from him, first, of Jess, 29th January, 1828 ; second, of Mingo, 28th January, 1830. He likewise proved possession of the negroes under the bills of sale from their date to the conversion about 1833 or ’4. The defendant set up title in one Faucett, and relied upon a parol gift by Harlan, to Nelly, his illegitimate daughter, whom he acknowledged, and who intermarried with Faucett. This gift was alledgecl to have been made more than twenty years ago, when Faucett’s wife was an infant, living with her mother, but at a time when Harlan was free of debt, and a prudent manager. The defendant also attempted to impeach the fairness of the sale by Harlan to the plaintiff, for want of consideration, inadequacy of price, and on the ground of imposition. A good deal of evidence was offered, both to sustain the gift, and to impeach the sale. The plaintiff' replied in evidence, relying on the continued possession of Harlan, from the date of the alleged gift, separate and apart from that of the donee, or her mother, and went into proof of Harlan’s embarrassed circumstances for several years before the sale, and of the payment of numerous debts for Harlan, and of other advances of money, together with admissions of Harlan, and settlements made with him, to' shew that the plaintiff was a subsequent purchaser for full consideration. When the plaintiff had closed his evidence in reply, the defendant offered evidence to impeach the fairness of a mortgage by Harlan to Bogan, of other negroes, and subsequent to the bills of sale, as the mortgage, or the balance due upon it, formed an item in one of the. settlements made between Harlan and the plaintiff, and proposed to go into evidence generally, to rebut the proof of payments made by Bogan for Hanlan. The Court refused to hear further evidence by way of rejoinder from the defendant, on either of the points suggested.
    The plaintiff offered in evidence, without objection, the record of a former recovery against Faucett, whose title was set up and relied on by the defendant, for the slave Mingo. In what exact language the views of the Court were expressed, I can not undertake to say. I meant to instruct the jury that they were at liberty to disregard the former verdict, and find for the defendant, if they considered that he had made out Faueett’s title.
    The counsel for the defendant assumed in argument, the ground that as the defendant was in possession, he was to be favored, rather than the plaintiff. In charging the jury, I remarked that the plaintiff had clearly proved an undisturbed possession under bills of sale, for four or five years, and until the death of Harlan; that the possession of the defendant, subsequently, acquired by stratagem and collusion, was not entitled to be favored in preference to that of the plaintiff, and that their doubts should be resolved in favor of the latter, if the defendant failed to make out a clear title.
    The defendant relied on the former recovery against Faucett, as a bar to this action, so far as regarded the value of Mingo. I overruled the plea, and held that without satisfaction, it was no bar. In connection with this branch of the case, the attention of the Court was called to the proceedings in the case against Faucett. The writ seemed to have been intended to conform to the Act of 1827. The plaintiff made the necessary affidavit, and the order was made, and the defendant did enter into bond. But the plaintiff, on filing his declaration, omitted' to enter into the corresponding bond, required by the Act, by which it was contended that he had forfeited the benefits contemplated by the Act. In the view which I took of the subject it was immaterial whether the action was brought under the Act of 1827, or not.
    The defendant moved to set aside the verdict for the plaintiff, on the annexed grounds:
    1. Because the plea of a former recovery against Faucett, for the negro Mingo, was a good legal bar to the recovery in this case.
    2. Because the Court refused to the defendant permission to shew that the judgements against Harlan, offered in evidence by the plaintiff, in his reply, had been paid by Harlan, or by Harlan’s property.
    3. Because the Court refused to permit the defendant to prove that some of the claims of plaintiff against Harlan, offered to shew Harlan’s indebtedness, were fraudulent and did not exist, in reply to plaintiff.
    4. Because the Court gave greater legal effect to the recovery against Faucett, for Mingo, than it deserved, in saying to the jury that they were “at liberty” to find for the defendant, as to Mingo, provided he had satisfied them clearly, and beyond a reasonable doubt, that the title of Faucett was the better title.
    5. Because the Court erred in laying it down as a legal position, that if it was doubtful whether Bogan’s or Fauqett’s title to the negroes was the better one, they should find for the plaintiff, thereby reversing the legal maxim that “ melior est conditio dcfcndcntisP
    
    6. Because the Court charged the jury that any unfairness in the execution of a mortgage from Harlan to Bogan, had nothing to .do with the case.
    Thomson & Dawkins, for the motion. Herndon, contra.
   Curia, per

Wardlaw, J.

Supposing that the other grounds of appeal have been sufficiently noticed in the report, this court has addressed its consideration mainly to the three first. As to the second and third: if the defence present a new title, the defendant may, as to that, by rejoinder in evidence, meet the answer made by the plaintiff in his reply, in like manner as the plaintiff, with regard to the title shewn by his direct examination, may reply to the answer made in the defence. If, then, as the third ground seems, to contemplate, the defendant’s offer had been to meet the plain tiff’s proof as to the gift by Harlan to his daughter, the evidence would have been admissible ; but the offer was to rejoin, by proof, as to a mortgage, to the reply which the plaintiff had made to the defendant’s attack upon the bills of sale; and in this view, the evidence was cumulative, and properly rejected. Faucett was sued by the plaintiff in trover for Mingo ; pending the suit, Mingo came to the possession of the present defendant, and this suit ’was commenced. A verdict was had against Faocett for fourteen hundred dollars, damages for the conversion of Mingo, being his price and hire from the time of conversion to the verdict: that recovery is pleaded in bar to this suit; and the court is of opinion, that as to Mingo, it is a bar. The case of Rogers & Thompson vs. Moore, Rice, 60, shews that a verdict in trover,', without satisfaction, changes the property, and transfers' the right to the defendant. It is likened to a‘bond or note taken in payment, when a sale is made upon credit. It is an acknowledgment by the plaintiff, in the most solemn form, that his property has become the property of the defendant, by conversion ; and as the plaintiff, by commencing and continuing the action, has shewn his confidence in the personal credit of the defendant, and the verdict gives him damages commensurate with the price of the chattel and its hire, from the conversion to the verdict, the recovery is a discharge of all right of action, touching the use of the chattel subsequent to the conversion complained of. In anticipation of the question now considered, the jury, in the case before us, have drawn their verdict so as to shew that of the $3,840 found for the plantiff, $2,280 were for the conversion of Jess, and $1,560 for the conversion of Mingo. It is therefore ordered, that a new trial be granted, unless the plaintiff will enter a remitter of one thousand five hundred and sixty dollars of the damages found for him.

Richardson, O’Neall, Evans, Earle, and Butler, JJ., concurred.  