#### *J. R. M. Young vs. J. Burton.*

1. The seventh section of the Act of 1836, re-organising the several Courts of this State, amongst other things, says, “ that an appeal shall also lie to all the Judges, upon all questions upon which either of the Courts of Appeals shall be divided.” It is the question and not the case that gives jurisdiction to this Court.

2. This was a single isolated question of law, growing out of the case between the same parties, to the preceding case; and will be fully understood by the opinion of the Court in this case. Reporter.

*In the Court of Errors,*

*May*Term, *1841.*

*Curia,per*Johnson, Chancellor.

The bill in this case, prayed amongst other things, that the defendant might be decreed to deliver up to him a certain female slave, and on an appeal from the Circuit Court decree, dismissing the bill for want of jurisdiction, to the Equity Court of Appeals, that Court were equally divided on the question, whether in general, that Court would entertain a bill for the specific delivery of slaves, and therefore referred that question to this Court, which has decided that question in favor of the complainant. The other questions in the cause, remaining unheard and undecided; and it is now moved, on the part of the complainant, that the cause be reinstated on the docket of this Court; and that he have leave to move for further orders in the case.

*269The real question is, whether this Court will entertain a particular question, arising in a cause, without having the whole case before them. The act of 1836, which gave to this Court its, present organization, answers this question. The seventh section provides, amongst other things, “ that an appeal shall also lie to all the Judges, upon all questions, upon which, either of the Courts of Appeals shall be divided.” It is the *question*and not' the case, upon which either of the Courts of Appeals may be divided, that gives jurisdiction to this'Court.

A contrary interpretation would lead to great inconvenience and embarrassment. I remember a case in Equity, for the marshalling the assets of an insolvent estate, in which, at least thirty distinct issues of law, or of fact, were involved, all of which might have been made the subject of appeal, and it might well have happened, that the Court of Appeals might have concurred with the Circuit Court, in all except one; and it would be unreasonable to suppose, that the Legislature could have intended, that this Court should have travelled through the whole of that voluminous case, to get at. the only question, about which there was any doubt.

I suppose, that a different rule would apply to cases referred to this Court, by the law Court of Appeals. In that jurisdiction, by a regular course of pleading, every case is resolved'into a single question of law or fact, to get at which it is necessary to go through the whole case ; there may be exceptions, but none occur to me at present.

The case is therefore referred back to the Equity Court of Appeals, for the determination of the other matters involved in' it.

DAVID JOHNSON.

We concur.

J. Johnston, B. F. Donkin, J. S. Richardson, J. B. O’Neall, J. J. Evans, A. P. Butler, Richard Gantt.

Dunkin, Chancellor,

*dissenting.*Having been unable to concur in the conclusion of the Court, on the question submitted, it is, perhaps, proper that I should briefly relate the difficulties, which have suggested themselves.

*270There are certain propositions, which', it seems to me, cannot he, at this day, questioned. In England, it is the settled law of this Court, that a bill will not lie for the specific delivery of a chattel, or for the performance of a contract in relation to chattels. The very few exceptions only confirm the rule. In the State of South Carolina, from the organization of the Court of chancery, until the year 1834, it is believed that not only has the English rule been uniformly recognized, without reference to the Act of Assembly, restricting the jurisdiction of the Court, but that in regard to this particular chattel, (slaves,) the principle by which this Court has concurred, was not left to speculation, or doubtful interpretation. It is believed, that anterior to the recent period mentioned, no decision can be found sanctioning ‘the doctrine now established ; and on the contrary, in the two cases, cited in the circuit decree, *Rees*vs. *Parish*and *Farley*vs. Farley, such doctrine was solemnly negatived, on demurrer, by the highest tribunals in the country. In *Sartor*vs. Gordon, and *Horry*vs. Glover, the Chancellor intimated his own opinion, clearly, that slaves, as a class, should constitute an exception to the rule. The decrees were affirmed, but it did appear to the Circuit Court, in this case, that those decrees might well be affirmed, without recognizing the broad principle, announced by the Chancellor. There were circumstances in those cases, which gave a peculiar value to the slaves claimed, in the estimation of the complainant; and the necessity of setting forth those circumstances evinced, at least, what was the general understanding of the profession, on this subject. These decisions did notprofess to over-rule *Rees*vs. Parish, and *Farley*vs. Farley, and it seems to the Circuit Court, that a doctrine so long and well settled, should not be abrogated by inference.

Heretofore, the rule had been, that to entitle the complainant to come into this Court, for the recovery of slaves, he must shew that there were circumstances which rendered it impracticable to measure their value to him in money. Having shewn this, the bill would lie. The rule now adopted is, that the bill will lie without showing any such circumstances. The necessity or expediency of so *271enlarging the rule, I am unable to perceive. In ordinary cases, trover or detinue would afford an adequate remedy. If, in detinue, the plaintiff apprehends that the defendant would remove the property, this Court is open to his relief, to prevent such mischief. In the very well considered case of *Robertson,*vs. *Bingley,*2 McCord, Ch. 333, Judge Nott, citing Lord Redesdale, says, “Courts of Equity will, in many cases, act as ancilliary to the administration of justice, in other Courts, by removing impediments to the fair decision of a question. And in illustration of the rule, that, pending a litigation, the property in dispute is often in danger of being lost or injured, and in such cases a Court of Equity will interpose to preserve it, if the powers of the Court, in which the litigation is, are insufficient for that purposeand he clearly shows that this principle is peculiarly applicable to actions of detinue in this country, for *the*delivery of negro property. But he also shews (what indeed is not questioned,) that the.authority of the Court is, in such cases, Merely ancilliary, and that the question of right must be determined in the ordinary tribunals. But the sufficiency of the remedy, in general cases, is best established by the long practice of the Courts, and the acquiescence of the community.

The great objection to giving the Court of Equity general jurisdiction, in questions of negro property, is that, in my mind, it is substantially an abrogation of the trial by jury, in all such controversies, where the complainant so desires. I say substantially, for although the Court of Equity may, in complex cases, direct an issue, the delay and expenses of such proceedings, render both the Court and the parties very reluctant to adopt them. The inestimable value of the trial by jury is one of those propositions to the correctness of which we are in the habit of assenting before we have understood their full force; but experience and reflection establish our faith and confirm our correctness. It is perhaps quite as important, that justice should be satisfactorily, as that it should be wisely or rightly administered. This mode of deciding controversies has always commended itself to the heads and the hearts of the community. A very acute observer of the habits and feelings of our country, Mr. DeTorquesville, regards the trial *272by jury, as not only the most satisfactory mode of administering the laws, according to the genius of the people, but, as an important element in our political institutions. My apprehension is, that the practical effect of the judgment now pronounced will lie to withdraw, from the appropriate tribunals, a large class of cases, on which they are peculiarly qualified to decide, and which cannot be as satisfactorily investigated or determined in any other tribunal.

BENJ. F. DUNKIN.

I concur.

J. Johnston.

Johnson, Ch.

By an order of this Court, the question here raised, whether a bill would lie in Chancery for the specific delivery of a slave was referred to the Court of Errors, and that Court have decided, that such a bill may be maintained; it only remains to notice the other grounds, which have been urged here in support of the Circuit Court decree.

The first is, that Robert Young ought to have been a party to this bill.

. That was the precise question, on the appeal from the judgment of the Circuit Court, of June Term, 1839, and it was ruled, that it was not necessary to make him a party; and right or wrong, that is the law of the case.

Conceding the correctness of the rule laid down by the Court of Errors, that generally, a bill lies for the specific delivery of slaves, yet it is insisted that there may be exceptions according to the principles of the rule. As where, .(as might well happen,) the slave might have a special and peculiar value to the party in possession, and not to the rightful owner, and the case of *Geiger*vs. Brown, is referred to as. an example. There the defendant had purchased a femqle slave from one whom he supposed had the right to sell. He had possession of her for some fifty years, in the mean time she had numerous children and grand children, who had been raised and identified, with his family, and yet upon the termination of a life estate, after so long aperiod, it was held, that the plaintiff-was entitled to recover. It has been suggested too, that a party might desire the possession of a slave for immoral or improper *273purposes, and it is asked, whether the Court, under these circumstances, would decree a specific delivery.

I am not prepared to say, that exceptions, in these cases, and perhaps others, ought not to be allowed, but do not feel called on to decide it here. The claims of the complainant to the right of possession, are, at least, on a footing of equality with those of the defendant, and the general rule must take its course. The merits of the case, arising out of the rights of the parties, have also been the subject of discussion; with regard to these, the Court, after a careful examination of the evidence, concur in the opinion expressed in the Circuit Court decree, that a partition of the slaves, mentioned in the bill, was made between the parties, and that the slaves in controversy, were allotted to the complainant, as stated in the bill, and that complainant is entitled to recover them.

It is, *therefore,*ordered and decreed, that the defendant do deliver up the slave Joice, (mentioned in the pleadings) to the complainant or his agent, on notice of this decree, and that he account for her hire, as also the hire of Harry, and one half the hire of Frank, (other slaves also mentioned in the bill,) during the time they were in his possession, she and her increase ; and that the commissioner adjust the inequality in value, stated in the bill to have existed in the partition make of the slaves.

DAVID JOHNSON.

I concur.

J. Johnston.