#### Rebecca Rhame *v.*James Ferguson and John R. Dangerfield.

Action of trover for fourteen slaves. One Broad, by his last will and testament, bequeathed certain slaves, with their future issue and increase, to John R. Dangerfield, “ *in trust nevertheless,*and for this purpose only, that the said D., his executors and assigns, should *permit*and *suffer*the said slaves, &e., to *apply*and *appropriate their*time and labor to their.own proper use and *behoof without the intermeddling or interference of any person or persons whomsoever,*further than might be necessary for their protection under the laws of this State, &c. The testator in his said will further says, “ Then I give and bequeath all the rest, residue and remainder, of my estate, both real and personal, to my said friend D. and his heirs and, assigns forever; upon trust, nevertheless, and for this purpose only, that the said slaves above mentioned, &c., be permitted and suffered to use and enjoy the said estate, whether real or personal, *for ever,*without the interference or meddling of the said D., or any person or persons whomsoever, further than may be necessary to secure to the said slaves the full use and enjoyment of the estate above mentioned.”

B. died, and the slaves above mentioned came into and continued in the possession of Dangerfield, when the plaintiff through and with her agent S., undertook to seize the slaves, as being liable to seizure *under the act of*1800 — and were about to carry them off. The defendant, D., under the advice and with the countenance, and perhaps the co-operation of the other defendant, F., resisted the seizure of the slaves, and the plaintiff desisted and went off without them; upon which she brought this action of trover.

On the trial below, the Judge gave the following instructions to the jury : 1. “ That the effect of Broad’s will was clearly to vest in his executor, Dangerfield, the *legal*title to his estate. That at the testator’s death, the executor had a right to take possession of the property and use it for the ■ purpose of paying the debts of the estate, and then to do with it as he pleased ; whether he would have acted in good faith in appropriating it to himself, instead of obeying strictly the directions of the will, was a question upon which a *court of law*would not undertake to decide. 2. That if the executor gave up the *practical dominion*and control of the negroes, and left them to their own government, they were liable to seizure under the act of 1800. Assuming that the negroes were liable to seizure, upon the question whether the plaintiff acquired a legal title to the negroes by seizure, the Judge stated to the jury that the question presented itself in three points of view: 1. Did the plaintiff have an actual tangible possession of the negroes *1*2. Did she so far subjugate them to her power and control, as to make them virtually her prisoners ? 3. Had *197the negroes voluntarily surrendered themselves as captives to be taken to Charleston, under S’s. proclamation that they must go ? The jury were instructed if they should come to an affirmative conclusion on either of these propositions, to find for the plaintiff. The jury found for the defendants, and a motion for a new trial was refused.

*Before BUTLER, J., at Charleston, January Term,*1839.

The report of his Honor, the-presiding Judge, is as follows: “ This was an action of trover for fourteen negroes, (Daphne, and her children and grand children.) The title of plaintiff to the negroes was founded on an alleged seizure of them, under the act of 1800, as having been emancipated contrary to the laws of the State. The negroes had belonged to G. Broad, who left the following will:

*‘State of South-Carolina:*

In the name of God — Amen! I, George Broad, of the parish of St. John’s, Berkley, in the said State, farmer, being of sound mind, memory and understanding, do make, publish and direct, my last will and testament, in manner and form following, that is to say: I will and direct that my just debts and funeral expenses be paid as soon after my death as possible; then I give and bequeath to my friend John R. Dangerfield, of Barnaretta, in said parish of St. John’s, Berkley, to him and his executors and assigns forever, my slaves Daphne and her children, Nicholas, Mary, Jacob, Betsey, Sammy, William, Sarah, Frederick, James, George and Simon, and her grand children, John and Betsey, together with the future issue and increase of such as are females: *in trust, nevertheless,*and for this purpose only, that the said John R. Dangerfield, his executors and assigns, do *permit*and *suffer*the slaves above mentioned, and each and every, of them and their future issue and increase, *to apply*and *appropriate their time and labor to their own proper use and behoof, without the intermeddling or interference of any person or persons whomsoever,*further than may be necessary for their protection under the laws of this State, which now exist, or may be passed hereafter; then I give and bequeath all the rest, residue and remainder of my estate, both real and personal, to my said friend, John R. Dangerfield, above mentioned, his heirs and *198assigns forever; upon trust, nevertheless, and for this purpose only, that the said slaves above mentioned, and each and every of them, and their future issue and increase, be permitted and suffered to use and enjoy the said estate, whether real or personal, *forever,*without the interference or meddling of the said John R. Dangerfield, or any person or persons whomsoever, further than may be necessary to secure to the said slaves the full use and enjoyment of the estate above mentioned.

Lastly, revoking all former or other wills and testaments, I do hereby declare this to be my last will and testament; and do hereby constitute John R. Dangerfield sole executor to the same.

In witness whereof I have hereunto set my hand and seal, this 5th day of April, in the year of our Lord 1836.

GEORGE BROAD, [L. S.]

Signed and sealed in the presence of—

Sanford W. Barker,

Josiah Dangerfield,

Press M. Smith.

Proved before Thomas Lehre, O. C. D., on the 7th day of May, 1836. At the same time qualified John R. Dangerfield, executor.’

The plaintiff offered the following testimony: John J. Singletary says that he was employed by plaintiff, under a power of attorney, to seize the negroes enumerated in the will; and that he, in company with plaintiff herself, and Mrs. Dehay, her son and servant, went to the plantation of Broad, about 8 o’clock, on the 31st December, 1837; Mrs. Dehay and her son having, however, nothing to do with the transaction. They found no white person on the place, but found some negroes in the dwelling house that had been occupied by Broad in his life time. The witness ordered the negroes out of the house into the yard, and told them that he seized them in the name of the plaintiff, and that they must go with him to Charleston. Dangerfield came and asked witness by what authority he had taken the negroes; the witness replied, he had seized them for plaintiff, shewed his power of attorney, and read the acts of the legislature under which he was proceeding. Dangerfield replied, it was a pity to drag them through the mud; and said sooner than they should go that way he would let them have *199his wagon ; and ordered a boy *to*bring the *wagon. It*seemed that Dangerfield had been informed by a boy of what was going on, and had dispatched a messenger to colonel Ferguson, who galloped up about an hour after witness and his party had got there: he ashed witness for his authority; witness handed him the power of attorney; Ferguson looked at it and said, it is all a cheattold Dangerfield to order him off, and if he would not go, give him the whip; and that if that would not do, and more should come than Mrs. Rhame and witness, to shoot; after giving this advice, which he did apparently under great excitement, Ferguson rode off, leaving the others at the place. Witness said in Ferguson’s presence that he could *go*away peaceably, that he had not come to lose or take life. Whilst they were talking, a boy, (one in dispute,) came up with a duck and a gun; he put the gun in the house, where there were two or three others. The boy was insolent and. witness told him to hold his tongue or he would tie him; witness and Rhame finally left the place about 11 o’clock, in consequence of threatened violence, leaving Dangerfield with the negroes. Witness said that he had frequently passed the place since Broad’s death, and that he had not seen any white person on it; that the negroes were there, and that he never saw them at work ; saw no signs of cultivation about the house ; there might have been fields at a distance off. That he knew of Dangerfield renting a mill about 15 miles from the place, when he served a writ on him some time before this ; that Dangerfield had a residence said to have been about a mile from the place ; but that he did not think he lived at it when he called to serve the writ. Broad left no blood relations. Broad had married Mr. Huff’s sister, and Huff had married Broad’s sister; on the death of Huff’s wife, he married Miss Nettles, the present Mrs. Rhame. On the cross-examination of this witness, he said he was at the place about an hour before Dangerfield came and two hours before Ferguson’s arrival; that he was waiting to get off. The witness said he never had the actual possession of any of the negroes ; all he did was to tell them they must go to town with him, or he would tie them. The negroes did not say whether they would goor not. Jane Dehay sworn: is sister of Mrs, Rhame, who staid at her house the night before *200she went to Broad’s place ; but had nothing to do with the business, but had her little wagon and was on her way to the city.— She was invited to come in the house by the old wench. She concurred with Singletary as to what occurred ; and said that Ferguson went off before any of the rest. She does not live far from the place ; has seen two of the negroes hunting with guns and dogs; the dogs run down a wounded deer in her yard; has seen the negroes passing without a white person with them, and never saw them at work; witness hurried the party to go on, and she could not tell the reason why they staid. Saw her sister take hold of one little negro and said she’d keep it. Peter Taylor and James B. Taylor, said they had seen two of the negroes, Nicholas and Jacob, hunting cows; once Dangerfield’s little son was along. — ■ Has seen them driving bays for deer. (See my notes if necessary.) Dr. Theodore Gaillard lives near Broad’s place, and sometimes attends the negroes who stay there as physician. Knows that the negroes are under the control of Dangerfield; who makes them work ; some make provisions and others work out as carpenters. Dangerfield pays their taxes and medical bills; knows that some corn has been sold that was made on the place. The negroes are very orderly and well behaved : he has taken them with Dangerfield to drive for him. Dangerfield lives about half a mile from the negroes, and sees them frequently. The case was argued very elaborately and at great length to the jury. I charged the jury, that by the will of Broad, Dangerfield had a legal title *to*the negroes; that a court of law could not take notice of the trust; that a court of equity might, and perhaps would regard Dangerfield as holding as trustee, and if so, that the negroes might, according to the case of Fable and Brown, (2 Hill. Ch. Rep. 378,) be escheatable. That a court of law could not take notice of the trusts and characterize the title by them. Whether Dangerfield had assented to the freedom of the negroes, and had *in fact',*carried into effect the declarations of the will of Broad, was a question of fact to be determined by the testimony ; that *if de-facto,*the negroes were enjoying the privileges of free people,t without the control or interference of a white person, they were liable to seizure, under the act of 1800. This question I submitted fairly to the jury, saying *201to them that Broad’s will was a palpable attempt to defeat and evade the laws of the State against the emancipation of slaves; and that if it had been carried into effect, the slaves were liable to seizure. Whether there had been a seizure, was also, in some measure, a question of fact. I said that merely going on a place, and proclaiming ownership, was not sufficient; that the most palpable form of seizure was *manucaption;*but that was not actually necessary ; that the possession of and dominion over *negroes,*who were capable of assent, and the influence of motive, could otherwise be acquired and consummated; as by the consent of the negroes themselves, or a removal of them, &c. That such a question must necessarily depend on the circumstances of each case. In the case under consideration, it was by no means certain that the negroes would at any time have gone with the captors by their consent; and whether the captors had the power to force them, was also uncertain. With regard to the conversion by defendants, I charged that Dangerfield had retained the possession of the negroes, and might be held responsible for their value, if the plaintiff’s title was perfect; and that Ferguson might also be held responsible for the consequences, although he derived no benefit; provided the negroes were given up in consequence of any violence actually used by him, or by his co-operating with the other; but if Singletary yielded to the moral influence of his opinion, and dread to Dangerfield, who was left alone; he should not be held liable. The distinction between the defendants is of little importance, as the jury found a verdict for both of them, upon other grounds than the one of conversion.”

The plaintiff now moved the court for a new trial, on the following grounds: 1. That the will of Broad was an attempt to evade the law of the State; and as the executor qualified, and actually permitted the negroes to live just as the will prescribed,-only so far interfering as to protect them against the law, the law was violated, and the slaves emancipated contrary to law, and were liable to seizure. 2. That the judge was mistaken in supposing that the negroes must be actually estrays and derelict, in order to render them liable to seizure; but the very evil example intended to be prevented by the act, was to permit slaves to enjoy all the benefits *202of freedom, under a mere nominal control of white persons. The abandonment meant by law, was the relinquishment of the right usually exercised over slaves, and putting them in a better condition than the rest of the slave population. And in this case, there was not one single instance of any act of ownership, but what was intended for the protection and benefit of the slaves. 3. That in stating to the jury that Dr. Gaillard proved any act of hiring, or paying taxes, &c., was erroneous; as the witness expressly stated that he did not know, of his own knowledge, any of the facts he volunteered to state, and was not present at any hiring, or paying of taxes. 4. Because the court erred on what constituted a legal seizure, and that the judge ought to have charged, that the calling the negroes out and ordering them to be ready-to go with plaintiff, was a sufficient seizure of negroes; as without any interference afterwards, they would have been carried off. And the charge' that the negroes should be removed away was erroneous, as the congregating them in the yard was sufficient. 5. Because the court erred in charging that Ferguson was not guilty of dispossessing the plaintiff, unless he used actual physical violence. Whereas it is submitted, that his threats of violence was such aiding and abetting Dangerfield,as to constitute him a principal in the trespass. And in fact, the plaintiff was driven away from the negroes and compelled to abandon them. 6. Because the facts proved, brought the negroes fully within the provisions of the act of 1800. The seizure was complete, and the rescue by defendants fully proved, and so the judge, it is submitted should have charged.

Curia, per Butler, J.

The effect of Brpad’s will, was clearly to vest in his executor, Dangerfield, the legal title to his estate. At the testator’s death the executor had a right to take possession of the property and use it for the purpose of paying the debts of the estate, and then to do with it as he pleased. Whether he would have acted in good faith in appropriating it to himself, instead of obeying strictly the directions of the will, is a question upon which a court of law would not undertake to decide. If he gave up the practical dominion and control of the negroes, and left them to their own self-government, I was of opinion they were liable to seizure *203under the act of 1800. This was a question of fact that belonged to, and was fairly submitted to the jury. Assuming that the negroes were liable to seizure, the next question was, did the plaintiff acquire a legal title to the negroes by seizure. My charge analysed, was that the question presented itself in three points of view: 1. Did the plaintiff have an actual tangible possession of the negroes ? This is the most obvious- and general form of seizure. 2. Did she so far subjugate them to her power and control as to make them virtually her prisoners ? This might have been effected without a voluntary *surrender*on the part of the negroes, and depended on the power of Singletary to enforce his authority and secure his captives. 3. Had the negroes voluntarily surrendered themselves as captives to be taken to Charleston, under Singletary’s proclamation that they must go? They were capable of doing so. If the jury should come to an affirmative conclusion on either of these propositions, I instructed them to find for the plaintiff. All the questions in the case were submitted under proper instructions— and the verdict of the jury cannot be disturbed.

O. *M. Smith*& *Hunt,*for the motion.

*Petigru*& *Lesesne,*contra.

The motion is dismissed.

Gantt, O’Neael, Evans and Earle, Justices, concurred.