Shortly after the marriage of defendant with Mary, the the daughter of plaintiff's intestate, in the year 1839, the latter placed in the possession of defendant and his wife, several slaves, to wit: Nicey, Orange, Silvey, and Harriet. In 1843, Mary, the wife of the defendant, died, and shortly afterwards, Silvey, after having had seven children, returned to the possession of the plaintiff's intestate, and there remained until his death in 1855: the other three, Nicey, Orange, and Harriet, together with the seven children of Silvey, remaining in the possession of defendant, up to that time.
The plaintiff administered on the estate of the intestate, and made a demand of the defendant for these ten slaves, which being refused, this action was brought. The foregoing facts were agreed upon, as a special case, and submitted to his Honor, with the further agreement, that if he should be of opinion with the plaintiff, he should have judgment for the sum of $7,500, to be discharged by the delivery of the slaves, and judgment for costs. But in case he should decide for the defendant, judgment of nonsuit was to be entered.
His Honor being of opinion with plaintiff, gave judgment for him according to the agreement, and defendant appealed. The case of Hinton v. Hinton, 1 Dev. Bat. Eq. Rep. 587, referred to, and relied on, by the defendant's counsel, is a direct authority in his favor. It was there held, that slaves advanced by parol to a daughter, by her father, upon her marriage, and remaining in the possession of her husband until the death of her father, intestate, were, under the act of 1806, (1 Rev. Stat. ch. 37, sec. 17) an advancement at the time of the marriage, and belonged to the husband, notwithstanding the death of the wife before her father. This being so, with regard to the slaves which were put into the *Page 58 husband's possession, and which remained there until the father's death, their issue, born during that period, must also belong to him. Indeed the plaintiff's counsel has not contended that any distinction can be made between the original stock and the issue, and we are clearly satisfied that none such exists. See Stallings v. Stallings, 1 Dev. Eq. 298.
The judgment in favor of the plaintiff must be reversed, and according to the case agreed, a judgment of nonsuit must be entered.
PER CURIAM. Judgment reversed.