#### ROBERT S. HUNTLY vs. JAMES H. RATLIFF.

When A: in consideration of #200paid to Mm by B. delivered to B, certain slaves to be held in trust for the use of A’s wife, from whom he had separated, and A. afterwards became reconciled to Ms wife and brought an action at law to recover the slaves : Held, that A. could Hot maintain the action, because, by the payment of the consideration and the delivery of the slaves, the legal title had vested in B.

Appeal from the Superior Court of Law of Anson County, at the special term in May 1845, his Honor Judge Battle presiding.

This was an action of detinue for several slaves, which, it was admitted, had been the property of the plaintiff. Some difference having arisen between the plaintiff and his wife, she left him, and instituted legal proceedings to procure a divorce and alimony. Their friends interfered and caused a compromise to be effected, so that the legal proceedings might be abandoned. In pursuance of this compromise, a bond was executed by the defendant and McCall, to the plaintiff, in the penal sum of Three thousand dollars, the condition of which, after reciting the facts above stated, goes on to say that “ the said Robert S. Huntly, has agreed to give to his wife Elizabeth a negro woman by the name of Mary and her two children Lewis and Joe, which negroes he agrees to warrant, &c. to her and her heirs, and that she may forever hereafter use, possess and enjoy the said negroes free from any control or liabilities on his part; and the aforesaid James H. Ratliff agrees in behalf of his sister, the said Elizabeth Huntly, to pay over to the said Robert S. Huntly, two hundred dollars in cash, as a part consideration of .the said negroes, and to pay all such costs and expenses as may have or shall accrue in consequence of any suit or suits commenced by the said Elizabeth against the said Robert S., and that the bond given by Elijah Huntly to the sheriff of Anson, for the delivery of the *543above mentioned negroes, (on a sequestration) shall forever be null and void, and that the said Robert S. shall never hereafter be liable for the debts or contracts of his wife Elizabeth, 1 so long as she may live separate and apart from her husband.” The defendant paid the plaintiff the two hundred dollars mentioned in this agreement, and the plaintiff delivered to him the slaves. The plaintiff’s wife then went to live with the defendant, who was her brother, .and continued to do so, until she became reconciled to her husband, when she returned to him. Afterwards, and before this suit was brought, an agent of the plaintiff in his behalf made a demand of the slaves from the defendant, who refused to deliver them up. At a subsequent time, before this action was brought, the plaintiff sent his wife and another woman to the defendant, giving them the sum of three hundred dollars, to pay him whatever .expenses he had incurred on account of the slaves, and the adr vanees he had made to or for the plaintiff. On arriving at the defendant’s house, the plaintiff’s wife asked her brother what he intended to do, to which he replied that he should do nothing; upon which he and his sister quarrelled, and the money was not tendered nor mentioned.

The defendant’s counsel objected to the plaintiff’s recovery, upon the ground, that from the terms of the written contract, and from what took place between the plaintiff and the defendant, at the time, in relation to the slaves, the defendant was constituted trustee for the plaintiff’s wife upon her separation from her husband; and, having received the slaves from the plaintiff in that capacity, he had a right to retain them, until the money, which he had paid the plaintiff, and all his expenses in relation to the slaves were reimbursed. The Court was of opinion that the defendant received the slaves upon a bailment, which was afterwards terminated; and that he had no such lien at law, as justified him in refusing to deliver up the. slaves to the plaintiff, when demanded by him.

The jury found a verdict for the plaintiff, and, judgment being rendered thereon, the defendant appealed.

Winston for the plaintiff.

*544 Strange for the defendant.

Daniel, J.

It was in evidence that the plaintiff delivered the slaves in controversy, to the defendant, in consideration of $ 200, in hand paid. This evidence shewed, that the legal title to the said slaves passed to the defendant by sale and delivery. The plaintiff then introduced in evidence the bond, stated in the case, executed to him by the defendant as an. admission by the'defendant of the terms, on which he was to hold the said slaves. The condition of the bond states, that the plaintiff “ agreed to give to his wife Elizabeth the said negroes, that she may forever hereafter use, possess, and enjoy.them, free from any control on his part. And the aforesaid James H. Ratliff, agreed on behalf of his sister Elizabeth, (the wife of the plaintiff) to pay over to Robert S. Huntley, (the plaintiff) two hundred dollars in cash, as part consideration of said negroes, and furthermore to pay all such cost and expenses as may have or.shall accrue, in consequence of any suit commenced, &c. by Elizabeth Huntly against Robert S. Huntly.” At the foot of the said deed, and standing independent of the above stipulations, the defendant further covenanted with the plaintiff as follows, “ and the said Robert shall never hereafter be liable for the debts of his wife so long as she may live separate and apart from her husband.” There is no condition or stipulation in the said bond, that the plaintiff should have back the said negroes in case his wife should again become reconciled and return to live with him* It is impossible there could have been such an intention, as the defendant had paid $ 200, and the costs of several suits, besides maintaining the plaintiff’s wife ; and it would be most unreasonable he should lose all security for it, at the will of the plaintiff and his wife. It seems to us that the legal title to the slaves is in the defendant upon certain trusts. Whether a court of equity would permit the husband to c.all for the legal title, and upon what terms, or hold the defendant a trustee of the slaves for the separate use of the wife, is not for us ,to decide, sitting in a Court of Law. We think, however, that *545his Honor erred, in holding, that the defendant was a bailee of the said slaves for the plaintiff, which enabled him to bring this action at law on a demand and refusal. There must, therefore, be a new trial.

Per Curiam, Judgment reversed and venire de novo awarded.