M. CHANDLER v. WILLIAM HOLLAND and another.
Where the owner of a slave hired her out for the year 1865 for a share of the crop, and such share was delivered to him, Held, that no question as the rights of the slave to the product of her labor after emancipation, could be raised in defence to an action of Trover brought by the owner against persons who, claiming under a sale from the slave, converted the share so set apart.
Trover, for forty-one bushels of corn, tried before Gilliam J. at Fall Term 1867 of the Superior Court of Cleaveland.
The defendant pleaded, General Issue, and “Two military orders issued by officers of the Freedmen’s Bureau at Morgan ton”, but the orders were not set out nor their contents stated, in the record which was transmitted to the Supreme Court.
The evidence for the plaintiff showed that in 1864 he had hired to one Jenkins a female slave for the year 1865, and was to receive as consideration for her labor one fourth part of the corn made by Jenkins. The woman remained with Jenkins up to the time of getting the crop in the Fall of 1865. At that time the plaintiff claimed the corn of Jenkins, not only because of the contract, but because during 1865 he had supported two children of the woman that were too young to support themselves. There was also evidence to show that Jenkins measured out one-fourth of the corn and placed it in a crib on the premises, and delivered it to the plaintiff, and that the defendants hauled off about one half of it, converting it to their own use.
Evidence for the defendants showed that they had bought the corn of the negro woman, who claimed that she, and not the plaintiff, was entitled to it; also that Jenkins did not de*599liver the corn to the plaintiff, but placed it in the crib that he and the woman might settle the claim to it between themselves. . Two military orders were also offered, and admitted in evidence. JenMns died shortly before the alleged conversion.
The court instructed the jury that the woman was emancipated by the military proclamation in April 1865, and was therefore entitled to be paid for her labor from that period; but that neither she nor the plaintiff acquired any property in the corn in dispute until a particular portion of it had been separated from the bulk of the crop, and had been set ajcart to one of them; that if the evidence satisfied them that Jenkins had chosen to set the corn in question apart for the plaintiff, and had delivered it to him, and that the defendants afterwards had converted it to their own use, the plaintiff wa¿ entitled to recover, otherwise not.* Also, that the military orders in evidence were no bar to that right.
Yerdict lor the plaintiff; Rule for a New Trial discharged; Judgment, and appeal.
jBynum, for the appellants.
Merrimon, contra.
Reade J.
His Honor’s charge, that the plaintiff must show a right of property and a right of possession in himself, and a conversion by the defendants, was all that the defendants could ask for upon that part of the case.
The defence, that the woman whose services for the year .1865 were the consideration for the contract between the plaintiff and Jenkins, was emancipated during the year, might have been a proper subject for consideration if Jenkins were insisting uponjt. But he made no such objection, but on the contrary set apart one-fourth of the corn as he had agreed, and delivered it to the plaintiff — and the defendants *600thereupon took it out of his possession. It is true that they say that they bought it of the negro woman, and that she, having been emancipated during the year, was entitled to the product of her own labor. Suppose this to be true, still his Honor gave them all the benefit of it, by stating in his charge that she was entitled to be paid for her services after her emancipation. The question, From whom was she so entitled to receive pay, remains to be answered! Not from the plaintiff, because she had not served him; but from Jenkins, whom she had served. If she was entitled to a part of the crop, her claim was upon Jenkins; and she had no claim upon that one-fourth part which had been allotted to the plaintiff. Therefore if the defendants had any claim upon the crop on account of her share, it was upon Jenkins, and not .upon the plaintiff.
And so the military orders, if they had any operation at all, (of which we know nothing as they are not set out; supposing them however as was suggested,' to have been orders to Jenkins to pay to the woman a part of the crop) do not vary the case. If the plaintiff had taken all of the crop, there might have been some show of right in the defendants. But three-fourths of the crop were left; and the plaintiff, to show that he was not acting unconscientiously, offered’evidence that he had supported two of the woman’s children, after her emancipation.
There is no error.
Per Curiam. Judgment affirmed.