
    James Berry, adm’r. John Quinn, dec’d. vs. Saunder Glover and John Vinyard.
    
    
      Complainant’s intestate being indebted to defendants on a judge tnent, executed to defendants a bill of sale for a slave. Defendants at the same time executed an instrument promising to “account for the amount in three years, without being accountable for wages;” if the slave should die in the mean time, the intestate to be the loser. Held that the transaction was in the nature of a mortgage; the slave ordered to be sold for satisfaction of the judgment, and defendants to account for his hire.
    
    The bill in this case stated that some time in 1817, the complainant’s intestate, having confessed a judgment to the defendants, to the amount of four hundred and twenty-eight dollars,'’ < xecuted to them a bill of sale, absolute in its terms, for a very valuable slave, a carpenter, whose hire was worth one dollar per day: That at the time of executing the bill of sale, the defendants executed an instrument of writing, in the following words: — “We have this day received from John Quinn a bill of sale for his negro fellow, Simon: We promise to account to him for the amotint thereof in three years from this date, or return the fellow, without being accountable for wages, and if the fellow should die in the mean time, Quinn is to be the loser by the said death, and this obligation to be. void. 15th April. 3817:’’ The bill stated circumstances of the intemperance of intestate, of his having been in the employment of defendants, and of his feeing embarrassed by their judgment^ apparently intended to set up a charge of fraud; and prays that the agreement may be cancelled, the negro delivered up, and defendants compelled to account for his hire.
    The defendants in their answer denied the charges mentioned, tending to shew fraud. They stated that Quinn, being desirous of making some provision for his family, proposed to sell the negro in question to defendants, at the price of eight hundred dollars; part of which should be laid out in payment of his said debt, and the remainder be laid out in the purchase of cattle for the benefit of his children; on condition however that Quinn should have the right, at any time within three years* to rescind the contract, by paying the amount of the said judgment, interest and costs. The defendant, Vinyard, stated that he agreed to this proposition and tiie bill of sale and instrument above set forth were executed; that the contract was a contract of purchase, though the intestate had a right to repurchase within three years. The answer further stated circumstances to shew that Quinn considered the negro as the property of defendants; that eight hundred dollars was a high price for him, and that they had generally employed him as a common laborer.
    The cause, was heard on bill and answer.
   'Chancellor Thompson.

The bill in this case states, that John Quinn executed a bill of sale to the defendants for a valuable negro fellow named Simon; that, afterwards, to wit, on the 15th April, 1815, they entered into an instrument in writing in the following words, “We have this day received from John ■Quinn, a bill of sale for his negro fellow Simon; we promise to account to him for the amount thereof in three years from this date or return the fellow, without being accountable for any wages, and if .the fellow should die in this time, Mr. Quinn is to be the loser by the said death, and this obligation to be void” The counsel for complainant contends that this instrument is in the nature of a mortgage, and the negro subject to be.redeemed, and the court is of the same opinion.

It is therefore ordered and decreed that the commissioner do sell the said negro at public sale, at Orangeburgh court house, at some suitable and convenient time, and out of the proceeds pay to Vinyard and Glover whatever may be due to then? on their judgment at law, after deducting therefrom the hire of the negro, and should the hire of the negro exceed- the -amount of the judgment and interest, then the defendants to pay to the complainant the surplus.

Starve, for appellant,

argued that the transaction was a sale; that the property was defendants, who could not consequently be liable tor hire. There was not the slightest evidence of fraud, the cause was heard on bill and answer and the answer denies fraud. The consideration, 850, was an adequate one. But at all events the contract was plain that defendants should not pay hire. The only hardship on the intestate was that he gave credit three years for part of the purchase money; and the contract was a benefit to him, for he would probably have been compelled to make a greater sacrifice if the judgment had been enforced at once.

Felder, contra.

This transaction is in the nature of a mortgage. 2 Equ. Rep. 570,- 1 Johns, ch. re. 128. Though, the defendants have denied fraud in general, yet the court may see plainly that an unconscieritious advantage has been taken. The defendants may be satisfied with what we propose — to receive the amount of the judgment and interest, and give up the 6lave and pay the hire.

It is further ordered, that all matters and things be referred to the commissioner to report on.

The defendants appealed on the grounds:

1st. That the contract of the parties should not have been set aside, without some evidence of fraud in the procurement of it; and there was no such .evidence.

2d. Because, whether considered as a mortgage or other* wise, the contract was express, that no hire should be paid.

Decree afiirmed;

Chancellors Desaussure, Thompson, and James* concurring.  