
    
      Patrick O’Neall vs. Michael McBride.
    
    Plaintiff brought trover for negroes against P., and obtained an order that he give security, under the Act of 1827; but, instead of taking such security, the sheriff took a bail bond, with the defendant as bail. P. placed the negroes in the possession of defendant, who sold them for $925, and the money was left with him as a depositin place of the negroes. Plaintiff recovered judgment for $800 in the action of trover, and the defendant, still having the money in hand, admitted to plaintiff’s attorney that he held it as a deposit to stand in place of the negroes if the suit went against P. This was an action of assumpsit to recover the amount of the judgment in trover out of the $925 which defendant held: a short time before the trial defendant paid the money to a creditor of P., who claimed it. The jury found for the plaintiff, and the Court refused to dfstutb the verdict — holding that, from the facts proved, a special promise to pay the amount of the judgment out of the money in defendant’s hands, might fairly be presumed.
    
      Before O’Neall, J., at Charleston, May Term, 1850.
    The report of his Honor, the presiding Judge, is as follows :
    
      “ This was an action of assumpsit. The facts upon which I thought the plaintiff might be entitled to recover, mainly appeared from the testimony of Patrick McBride, a witness for the defendant.
    
      K The facts, as I understood them from his testimony, and that of A. G. Magrath, Esq., connected with a former recovery in trover, in which this plaintiff and Patrick McBride were parties, were about as follows :
    “ Patrick O’Neill had the legal title to two slaves, in the possession of Patrick McBride. He demanded them, and Patrick McBride refused to give them up, supposing that he had the right to apply them,, as the property of one Malian, in exoneration of his liability for him as his indorser. O’Neill brought trover, and made affidavit under the trover Act to compel McBride to give security for the forthcoming of the slaves; but, instead of that, McBride merely gave bail, his brother, the defendant; and having sold the slaves for $925, he deposited the proceeds with his brother, the defendant, to stand in the •place of the slaves, and to be paid over on the determination of the action of trover. The plaintiff in that case recovered $800, and after the case was decided, to the surprise of all, it was found that there was no surety under the trover Act, but that the defendant was merely bail.
    “After various attempts to settle the matter, this suit was brought, and a short time before the trial of this case the money was paid by the defendant to Jas M. Walker, Esq., who claimed it in some right against Patrick McBride. The jury were told if, from the evidence, they believed that the money was the proceeds of the slaves belonging to the plaintiff, wrongfully converted by Patrick McBride, and that he had deposited it with the defendant in place of the slaves, and to be by him paid to the plaintiff, if he succeeded in the action at law, then the plaintiff might recover ; otherwise, not. The jury found for the plaintiff.”
    The defendant appealed, and now moved for a new trial.
    
      Northrop, for the motion.
    
      Campbell, contra.
   Curia, per

O’Neall, J.

In this case, the facts having gone to the jury, with no improper instructions from the Court, ordinarily, it would not have been necessary to have said a word more. But as there is some division of opinion in the Court, and as I have been given to understand that the reasons of the minority will be expressed by a dissent, I must also, in justice to myself and my brethren who concur with me, assign our reasons. It must be remembered that the plaintiff relies on a special as-sumpsit, and this has been found by the jury on proof which may very well admit the construction put on it by them. How can this Court say they are wrong 7 For every one knows how differently evidence appears from the lips of a witness, from what it does when reported in the most accurate manner. In this case a mere outline of the testimony was preserved on my notes, and sketched very briefly in my report. To have taken down all of Messrs. Magrath’s and McBride’s testimony, would have required the skill of a stenographer.

But the facts which we have will abundantly vindicate the verdict. The slaves were the property of the plaintiff: they were in the possession of Patrick McBride: as soon as they were demanded from him, and a suit brought, he placed them in the hands of this defendant, by whom they were sold and the money received. He did not pay the proceeds to his brother, but, as he was bail, the money was left with him as a deposite in place of -the slaves. On these facts, what would have hindered the owner from dropping his action against Patrick, waiving the tort, and sueing Michael in assumpsit for the proceeds? That such an action could be maintained, is clear: so says Mr. Chitty (1 Ch. PI. 68 — 100,) and Buller, J. in his N. P. 131. But he did not; he went on; recovered against Patrick: and the defendant, still having the money in hand, in a conversation with Mr. Magrath, when the latter told him his brother Patrick had informed him that he had deposited with him the proceeds of the slaves sold, to stand in their place if the suit went against him, admitted that he had some things for that purpose. This the grounds of appeal admit was the money. How can this be otherwise understood than as a promise to pay the money to the plaintiff, if he recovered? What was the amount of the money thus deposited, or how it arose, did not appear, till Patrick McBride was sworn. He, however, supplied what was so material to the plaintiff’s case, and hence, therefore, I stated in the report that it was mainly from his testimony that the plaintiff was entitled to recover. Without it, I still think the plaintiff could not have recovered. With it, the plaintiff was plainly entitled to have a verdict. The money was the proceeds of his (the plaintiff’s) own slaves, as appeared from Patrick’s evidence. Ex equo et bono the plaintiff was entitled to have it. The only obstacle to an action for money had and received was the technical one of the verdict against Patrick in the action of trover. Still the equitable right of the plaintiff to the money remained, and that was consideration enough to support the special promise which was fairly to he presumed from the conversation between Michael and Mr. Magrath.

I think, therefore, the verdict was well warranted.

It is no objection to say the defendant paid the money to another. He paid it a few days before the trial. It was at his peril he thus acted, and if he has to pay it twice, it is no more than he richly deserves.

The motion is dismissed.

Evans, Withers and Whitner, JJ., concurred.

Frost, J.,

dissenting. A minority of the Court are in favor of a new trial, because there is not sufficient evidence that the money was deposited by Patrick McBride with the defendant for the use of the plaintiff, and to be paid to the plaintiff if he recovered in the action of trover. The evidence rather shews that the money was deposited with the defendant for his own indemnity, against his liability in the trover bond. This is the more probable inference from the transaction. Even if the money had been deposited with the defendant, under instructions to pay it to the plaintiff, if he should recover in the trover suit, Patrick McBride might revoke that application at any time before the defendant had paid it to the plaintiff, or had, by a promise or otherwise, incurred a liability to the plaintiff to pay the money to him. There is no evidence of such promise or liability. Patrick McBride and Malian sanctioned, if they did not direct, the payment of the money to the South Carolina Bank, in payment of their joint debt. Michael McBride was not liable to pay the plaintiff’s verdict in trover. The money was discharged of any claim for indemnity on his account; and the owner had a right to apply it most advantageously to himself in the discharge of a suretyship debt. The evidence of Patrick’s countermand of the alleged application of the money to pay the plaintiff was not adverted to, nor the law applicable to that evidence brought to the attention of the jury, in the instructions of the Circuit Judge.

Wardlaw, J., concurred.

Motion dismissed.  