By the Court.
Nisbet, J.delivering the opinion.
[1.] We cannot doubt but that the presiding Judge put the true construction upon the agreement between Whitaker and Wood and Foster. It is not possible to give it any other. Foster agrees with Whitaker and Wood, in consideration that they will become his securities on a bond for the forthcoming of the negroes, to respond to a recovery in the action of trover against him, that “ they shall have and hold the said negroes, and shall have the full power, control and profits of the said negroes, until the termination of the action of trover.” To make them cafe on their guarantee for the forthcoming of these negroes, the control over them until the suit is determined, is given to the securities ; and as an inducement to their becoming security, and as a compensation for keeping the negroes, it is also stipulated, that they shall have their profits, until the suit is terminated. They must have so understood the agreement. They intended to be paid, and Foster intended to pay them for standing security for *60him. They occupy the position of purchasers of the use of the negroes for a limited time.
[2.] The construction of this agreement, is the point upon which the case -was determined below, and no other error is charged upon the Court, but in its decision on this ground. We, thinking with the Court, affirm the judgment, but at the same time we feel it our duty to declare our opinion upon the right of the plaintiff to maintain this action. We are very clear that Foster cannot maintain it. He has no title whatever to the hire of these negroes, nor has he any interest in it, which can enable him to sue. If he cannot sue in his own name for his own use, he cannot sue for the use of Tompkins. Our opinion is, that the right of action is in Tompkins, and that although Whitaker and Wood, had the suit been determined in Foster's favor, would have acquired a title to the hire good against him, yet in the actual condition of the case, got no title to it, good against Tompkins. The judgment in the trovér action passed against Foster and against Tompkins, his security on the appeal, for the negroes and for their hire, to the amount of $3500. By this judgment, the title t'o the negroes is demonstrated to be in the plaintiff in the action, and also it demonstrates that Foster had no title; not only that he had no title to them at the time of the rendition of the judgment, but that he never did have a title, good against the plaintiff. With the title to the negroes, the plaintiff also had the title to the hire; for with the corpus goes its rents, issues and profits. Equally, if Foster had no title to the property, he had none to its hire. These things being so, as affirmed by the judgment, Foster could make no sale of the hire good against the plaintiff. He could convey no title to Whitaker and Wood, simply because he had none to convey. Further, the plaintiffs in the judgment recovered the hire specifically for the very time it was conveyed to them. By our Statute, where there is a recovery in trover, the property is vested in the defendant, first for the purposes of the plaintiff’s satisfaction, and in the defendant generally, when he pays the damage. (Cobb's JV. Big. 499.) Nothing can be claimed by Foster under this Statute, for he never paid the damages, the negroes being specifically delivered, in pursu*61anee of the judgment. This may suffice to show that the title to this hire was in the plaintiff in the action of trover. He could not collect it by virtue of his judgment out of Whitaker and Wood, but he had a legal right to it, and could have enforced it against them by suit. Now Tompkins being security on the appeal for Foster, and the judgment having passed against him as well as Foster, and he having paid the hire to the plaintiff in the action, and Foster being insolvent, he not only acquired, under our Statute, the control of the judgment against his principia], but became subrogated to all the rights of the plaintiff in the judgment. See Baily and others vs. Merrill, 4 Geo. R. 123. Cobb’s N. Dig. 498, 593. One of these rights, as we have seen, was the right to sue for and recover the hire of the negroes in the hands of Whitaker and Wood. The hire in their hands was money had and received for the use of Tompkins. Ex equo bono, they could not retain it; the more especially, as they bought with notice of the suit for the negroes pending on the appeal, and of the fact that Tompkins was security on the appeal.