The plaintiff claimed title under one Gard Thompson, who was called as a witness, and testified that, on ___ day of _____, A. D. ___, one Tilghman Gardner and his wife joined in a conveyance to him of certain monies, then in the clerk's office, the proceeds of the wife's real estate: one of the stipulations of this conveyance was, that the witness, in consideration of $125 of the said monies, should convey the slave in question to the plaintiff, in trust, for the separate use of said Gardner's wife; that, soon after the execution of this deed, but before the actual receipt of the money from the clerk's office, he, the witness, who was the owner of the slave, placed it in the possession of the plaintiff, that it might be with its mother. Soon after this, he went to plaintiff's house, where the slave was, and told him to keep it for the use of the said Tilghman's wife, according to the terms of the said deed; that he told the plaintiff he then delivered to him the slave for this purpose; that the plaintiff agreed thus to receive and hold the slave; that it was his, (witness's,) intention thereby to convey the negro for the purpose above stated, and thus to confer upon him the legal title, and that it was so understood by them both at the time; that the slave was not present at this time, but was on the plaintiff's plantation, subject to the control and direction of him, (the witness); that he never took back the said slave, but left him with the plaintiff.
Upon a cross — examination, the witness said, that after the occurrence above narrated, he had executed a bill of sale, in writing, to the plaintiff, declaring the trust theretofore stipulated, which bill of sale, he was advised, was void, for the want of a subscribing witness. This bill of sale was then offered in evidence. The same witness further stated, that, at a still later period, he had executed another bill of sale for the same slave, with the requisite legal formalities, which it was admitted conveyed nothing, as the slave had then been levied on, and was at *Page 342 the time, in the adverse possession of a constable. This bill of sale was also read in evidence.
The defendant claimed as a purchaser, under an execution against Tilghman Gardner, and showed judgment, execution, a sale and purchase, in due form.
It was contended by the defendant, that the plaintiff could not recover, because there never had been any sale of the negro by Gard Thompson to the plaintiff; that there was no evidence of an actual delivery, as required by the statute, and that the subsequent attempt to convey by deed, was evidence that the parties never intended any other mode of conveyance.
The Court left the evidence to the jury to determine, as a question of fact, whether there had been a sale and delivery of the slave by Gard Thompson to the plaintiff, with instructions, that there must have been a sale and an actual delivery, to pass the title; that a manual delivery was not essential, but that an actual delivery was; that if it was the intention of Thompson, at the time relied on, to sell and deliver the slave to the plaintiff, and then to invest him with the absolute title and possession, he having control of the slave at that time, and the plaintiff thus received him; that this understanding would be sufficient in law to pass the title, though the slave was not actually present at the time, but in possession of the plaintiff.
There was a verdict for the plaintiff. Rule for a new trial; rule discharged; judgment and appeal to the Supreme Court. There is no doubt of the plaintiff's right to retain his verdict and judgment. The only difficulty is, as to the true ground upon which that right should be placed. The case of EPPES v. McELMORE, 3 Dev. Rep. 345 is a strong authority in favor of the Judge's charge as to the sale and delivery of the slave from Gard Thompson to the plaintiff, independently *Page 343 of the bill of sale. But that case is supposed to be weakened by the decision of the Court on the subsequent one, of ADAMS v. HAYS, 2d Ired. Rep., 361, in which it was held, that to a parol gift of slaves, an actual delivery was necessary, and that the circumstance that the slaves were in the possession of the donee was not sufficient, if they were not present at the time of gift.
The unattested bill of sale would have been undoubtedly good between the parties prior to the revision of the statutes in 1836. CUTLER v. SPILLER, 2 Hay. Rep. 61. Whether that had not been altered by the omission of the preamble in the Revised Statutes, (1 Rev. Stat. ch. 37, Sec. 19) has been made a question in STATE v. FULLER, 5 Ired. Rep. 26, and BENTON v. SAUNDERS, Bus. Rep. 360.
But however these questions may be settled, whenever it shall become necessary to decide them, it is clear that the plaintiff, as the bailee of Gard Thompson, had a right to recover in this action, his possession of the slave from the defendant. 1 Roll's Abr. Title Detinue C., page 636; 1 Chit. Plead. 139; 4 Bing. Rep. 111; 1 Saund., P. and E. 435. The defendant's intestate claimed as a purchaser under an execution against Tilghman Gardner, who, it is evident, never had any title to the slave in question, and the intestate who purchased his interest, and stands in his place, is therefore to be regarded as a mere wrongdoer. The only pretence of title which the debtor could set up was derived from the conveyance to his wife's trustee, and that the defendant contends, passed nothing. The plaintiff then, as bailee, has no obstacle in his way to prevent a recovery.
The judgment is affirmed. *Page 344