#### STEPHEN HENRY *v.*JOHN A. PATRICK.

Where the *intent*with which the delivery of a slave was made, becomes important, in a contest about the sale of the slave, the circumstances evincing that intent, one way or the other, should be loft to the jury; and in such a case, it would be error in the Court to pronounce, that the fact of sale is proved or disproved.

Debt upon a bond. Pleas,' — payment; set-off; accord and satisfaction. Upon the trial at Rockingham, on the last Spring Circuit, before his Honor Judge Martin, the defendant, in support of his pleas, introduced the deposition of one Dodd, which stated, in substance: That the defendant was a negro-trader, and the plaintiff had purchased and received of him a negro boy, named Miles, with liberty to return him and take another, if, upon trial, he should not like him: that some time afterwards, the defendant was on his way to the south, with a parcel of slaves, and encamped on the public road, within two or three miles of the plaintiff’s house: that plaintiff came to the camp, and proposed to return the boy Miles, and take another; to which defendant assented : that plaintiff then selected a boy named Jacob, fixed upon the price, which it was agreed, should be paid by the bond of the defendant, which the plaintiff then held, and the balance in money : that the bond was not then delivered up, nor any money paid, the plaintiff not having the bond with him; *359but it was agreed, that the defendant should call at the plaintiff’s house, in a few days, execute a bill of sale for the boy, and receive the bond, and the balance of the money, in payment for him: that thereupon the plaintiff took the boy Jacob home with him, and returned the other boy, Miles. The defendant relied upon this evidence, as proof of an executed contract of sale, for the slave, which operated as a discharge or payment of the bond. On the other hand, it was contended for the plaintiff, that the slave was only *bailed*to him; that the contract was not complete, nor intended to be complete, until the defendant should execute the bill of sale; and until that was shown to be done, the bond remained undischarged, and in full force. His Honor instructed the jury, “ that the circumstances deposed to by Dodd, if believed, constituted a sale and delivery of the slave, which transferred the title to the plaintiff, and that the defence was fully sustained.” Under this charge, a verdict was rendered for the defendant, and the plaintiff appealed.

*W. A. Graham,*for the plaintiff.

No counsel appeared for the defendant.

Dahiel, Judge,

after stating the case, and the circumstances particularly relied upon by each party, proceeded : —It seems to us, that the Court should have left all these circumstances to the jury, for them to ascertain with what *intent*the delivery of the slave to the plaintiff was made. If the delivery was of the slave, as the property of the plaintiff, under the parol contract of sale, and the bill of sale which was afterwards to be given, was only for further assurance, then the slave passed to the plaintiff, and was at his risk. If the slave was put into the possession of the plaintiff, but not as his property, until a bill of sale should be executed by the defendant, and it was understood and intended by the parties, that the title of the slave should not pass until the bill of sale should be so executed, then the possession of the plaintiff was a *bailment,*and the risk was with the defendant; and it would be no payment of the bond, on which this action is *360founded. The Court decided upon the intent, arising out of these various circumstances, when that intent, as it seems to us, should have been left to the jury. A new trial must be granted.

Per Curiam. Judgment j-eversed.