#### MARIA C. FEATHERSTON vs. WILLIAM FEATHERSTON.

Where there is a contract for the sale of a slave, and the question was, whether it was the intention of the parties that the contract was td he considered executed or only executory, the Court cannot decide that question, but must leave it to the jury.

The cases of Henry v. Patrick, 1 Dev. & Bat. 358, and Caldwell v. Smithy 4 Dev. 4* Bat. 67, cited and/ipproved.

Appeal from the Superior Court of Law of Henderson County, at the Spring Term 1850, his Honor Judge Cald-wtsub presiding.

*318This is a suit in trover, to recover the value of a negro boy, named John. The plaintiff relied on the deposition of one Hawkins to shew title. It is in the following words: ‘’That in July 1844, he, Robert Hawkins, was in Henderson County, N. C , about dividing the property of Berryman Featherston, deceased, and the said M C. Featherston and William Featherston were both there, and a division of the negroes took place, and, in the said division, a negro boy named John, aged about three years, fell in a lot to William Featherston, after which the said William Featherston traded him to M C. Featherston for two hundred dollars, it being the amount that the said boy was valued at to the said William Featherston. The trade took place on Saturday some time in July 1844,and he saw M. C. Featherston pay William Featherston between fifteen and twenty dollars in silver, and the said M. C. Featherston offered to give her note for the balance due and demanded a bill of sale, and they agreed to draw the writings on the Monday following, and the trade be. ing made and assented to by the parties, William Feather, ston delivered the said negro boy John to M. C. Feather-ston, with that understanding, that they would draw the writings on the Monday following.” The plaintiff lived with her mother and owned other slaves, and her mother owned the mother of John ; and it was a matter of contest on the trial, in whose possession John was, up to the time, when the defendant in some way got possession of him, some two years after the trade. It did not appear that any bill of sale had ever been executed, but there was evidence, "which tended to shew, that a note had been executed by the plaintiff to the defendant for some pur. pose. A witness testified that he knew of no dealings between, the.parties. It was insisted for the defendant, that, supposing Hawkins’ testimony to be true, it was an exec-utory contract, and no title passed. The Court was of opinion, that it was an executed contract, according to the *319said Hawltins’testimony, and that a title to the boy John passed to the plaintiff, and so charged the jury A verdict was rendered for the plaintiff, and from the judgment thereon the defendant appealed.

Gaither, for the plaintiff,

submitted the following an. thorities :

Bateman v Bateman, 2 Dev. 97. Choal v. Wright, 2 Dev. 289. Mush at v. Brevard, 4 Dev. 73. Kppes v.Mc-Lemore, 3 Dev. 345.

N. W. WoocIJin and Baxter, for the defendant.

Nash, J.

When his Honor, the presiding Judge, pronounced his opinion in this case, he entirely overlooked those of Henry and Patrick, 1st Dev. & Bat. 358, and Caldwell and Smith, 4 Dev. & Bat. 67, or drew a distinction in principle,^between them and the present case, which the facts do not warrant. In the first case, the defendant sold to the plaintiff a negro ; the price was agreed upon and the boy delivered. The value was to be paid in a bond, which the plaintiff then held upon the defendant. The bond not being present, it was agreed, that in a few days, the defendant would call at the plaintiff’s house, execute a bill of sale and receive the bond. The plaintiff took the boy home with him. The contest between the parties there, as here, was, whether the contract was an executed, or executor}' one, to be completed by the executing of the bill of sale by the defendant and the delivery of the bond by the plaintiff. The Court decided, that it was a question of fact for the jury, as to the intention of the parties, and notone of law. The Court could not decide upon the intent. This case governs the one before us ; the only (act differing the ¡after is, that, at the time, a small part of the purchase money was paid by the plaintiff. This, vve think, makes no material difference between the cases, in principle. Property in slaves can *320be passed in two ways ; either by sale and 'delivery or by deed. Here the parties, at the time the terms of the con» tract were agreed on, agreed that the note for the balance of the purchase money and the hill of sale were to be executed and delivered at a subsequent day. Was the boy John, then, delivered, at the time, as the property of the plaintiff, under the parol contract, and the bill of sale to be given as further assurance or evidence of title ? If so, the contract was complete. If the boy was put into her possession, but not as her property, until a bill of sale was executed and a bond or note for the residue of the purchase money was delivered, and it waá the understanding of the parties, that the title should not be changed, until those things were done, then the contract was not completed by the delivery of lohn and the payment of a part of the purchase money. Which was the intention of the parties, was a question of fact for the jury to ascertain. We think his Honor erred, not in the conclusion, which he drew from the facts — upon that we have no right to express an opinion — but that he assumed the jurisdiction of the jury, in drawing any conclusion, as a matter of law.

Per Curiam. Judgment reversed and venire de novo.