The instrument offered in evidence, must be considered in connection with the defeasance, and so considered, it is a conditional sale of the slave mentioned in the bill of sale, by .Bogan to the Martins. The right to the slave vested immediately in them, subject to be divested by the re-payment of the purchase money in four months. Upon proof of the death of the slave, within the four months, or upon proof that Bogan retained the possession, and afterwards sold the slave to a third person, the plaintiffs could recover from him the amount specified as his purchase money, but the instrument does not, on its face, import an indebtedness from the defendant to the plaintiffs. The legal intendment-is, that the possession, and the title of the slave, passed to them, subject to be divested by the re-payment of the purchase money, within the time limited. The Court therefore erred *810in the first charge to the jury, and this error is not relieved by the fact, that the Court charged correctly upon the parol proof in the cause, as it is impossible for this Court to say, upon what the jury decided.
There can be no doubt that the action of assumpsit was proper ; the plaintiffs have the right to waive the tori, and sue for money had and received to their use;
It is equally clear, that having become re-possessed of the paper they had transferred, they could strike out the assignment. For the error of the Court in the first charge, the judgment must be reversed, and the cause remanded.