Newbern,

September Term, 1798.

#### Withrington and Ferguson vs. Ann Williams.

^pRQVER for a negro, and not guilty pleaded; whereupon the jury found a special verdict; the counsel on both sides agreeing thereto, and to be bound by the opinion Judge Haywood should deliver thereon, which verdict was to the effect following. That the defendant had the negro and converted him; that she formerly was the widow of one Ferguson, who was killed in the battle of the Alamance ; that the Legislature by a resolution, ordered one hundred pounds to be deposited in the hands of Richard Caswell, therewith to purchase negroes for the use of the widow and children — there were two children . — the purchase was made of two negroes, one died, and the other being the negro in question, survived. The widow alter the purchase, married one Williams, who died; after which she gave the negro in question to her son, who was the testator of the plaintiffs: and the doubt is, whether the plaintiffs have a right to recover and to what amount; if the testator was entitled to the whole negro, they then assess damages to one hundred and fifty pounds; if to two-thirds, to one hundred pounds } and if to one-third only, then to fifty pounds.

The court took some time to form an opinion, and then delivered it.

Mr. Caswell received the money in trust to purchase negroes therewith for the benefit of the widow and children ; and (his trust was executed, and he no longer a trustee when the purchase was made ; he was not a trustee of the negroes purchased %vith the money. The reason why he was made a trustee, probably was, lest the widow should misapply and waste the money were it given into her care —it is needless, therefore, to consider what the consequences would be had he been a trastee of the negroes. The property in the negroes was vested in the widow and children jointly, and the joint money was severed as to tier by her interman iage with Williams ; as to the children, it was severed by the act of 1784, and each child became eati-*65fled to one-third in severalty: Nothing passed by the gift of the defendant, for her third vested by the marriage in Williams and belonged t© his representatives at the time of the gift; the testator then having been entitled to one-third only, the judgment must be for the fifty pounds.

Judgment accordingly.