#### *Austin Paslay and others*vs. *Robert Martin.*

On a bill for tbe specific delivery of slaves, the Court is not bound to refer the question of title, where it is disputed, to the Law Court: It can determine the question of title itself.

*Before*Johnston, Ch., *at*Charleston, February, 1852.

This cause came up for a hearing on the bill, answer and report of Master Tupper, with the testimony, as taken by him.

The following is a statement of the facts:

On December 2, 1837, Dani-el Cook conveyed, by bill of sale, five negro slaves, to wit: Randall, Joe, Jerry, Ellen and Elsey, to Jesse R. Gary, in consideration of the sum of $4,237. At the same time an agreement in writing was made between Cook and Gary, by which the negroes were hired to Cook at the rate of fifty dollars per month.

Gary afterwards, to wit, in February, 1838, conveyed the *352negroes to Austin Paslay, for the sum of $4,200. For the said amount, Austin Paslay gave his note. On this note there were two credits, one on May 10,1838, for $1,200, and one on August 22, 1839, for $332 34. Subsequently the note passed into the possession of Paslay, and was exhibited by him in evidence.

On February 7, 1838, Austin Paslay, in consideration of five dollars, and his love and affection for his sister, Hannah H. Cook, and her children, sold and delivered the said negroes to Elizabeth Bird, her executors, administrators and assigns, to have and to hold the said negroes upon the following trusts, to wit: “ to and for the use of Hannah H. Cook, the wife of Daniel Cook, of Charleston, and the heirs of her body now living; not to be liable for the present or future debts of the said Daniel Cook, or any other person, during the minority of the said children of Daniel and Hannah H. Cook; and further in trust, to permit and allow the said Hannah H. Cook and her children to enjoy the use and services of the said slaves, subject, however, to the aforesaid trusts during the minority of each and every of the said children.”

In an *ex parte*case in the Court of Equity for Charleston district, wherein the said Hannah H. Cook and her children were petitioners, the original deed of trust was filed on September 8, 1843, as an exhibit; and it still remained there, according to the certificate of the Register. Neither of the aforesaid bills, of sale were recorded in the Secretary of State’s office, and the trust deed was not recorded there till September, 1851.

The negroes were received by Mrs. Cook and her children, according to the limitations of the trust deed, and were hired out for their benefit. The man Randall was generally used as a cook at the Yictoria Hotel, of which Cook was the keeper, and where Cook, and his wife and children, lived together.

Daniel Cook died before Hannah, his wife; and the negro, Randall, continued to be employed at the hotel. Mrs. Cook died some time in 1850, and the negroes continued to pay their wages to the complainants.

On September 20, 1851, Robert Martin, the defendant, caused *353the negroes to be levied on, and lodged in the jail of Charleston district, claiming the property in them by virtue of a bill of sale, executed by Daniel Cook, on the 27th of October, 1848, to John C. Simons, for $ 1,000. This bill of sale was recorded in the office of the Secretary of State at Charleston, October 27, 1848, and by the said Simons assigned to the defendant, September 17, 1851. The defendant admitted that he paid less than the market value, and alleged that he was induced to make the purchase with a view to secure an old debt due him by Daniel Cook, in his life time.

Two days after the defendant levied on the negroes, to wit: on September 23, 1851, the complainants filed their bill, having in the meantime, as admitted by the defendant’s answer, demanded the negroes, praying a specific- delivery of the negroes, and an account of hire and expenses.

On January 15,1852, on motion of the complainants’ solicitor, and with the consent of the defendant, Chancellor Wardlaw granted an order for the sale of these negroes, of which the following is the last clause: *“*This order to be without prejudice

to the rights of the parties, and upon the express understanding that all further litigation shall proceed, and be determined, as if the matter in litigation (precisely) were the negroes in *specie,*and not money.”

JohNston, Ch. The defendant urges that the Court has lost jurisdiction of the cause, by reason of the order of sale. The rule is too well settled, to be now denied, that where the Court has original jurisdiction, no subsequent change in the nature of the property will take it away. The vexations of a tedious suit may alienate the affections of the master from his slave; humanity to the slave, who has been unjustly imprisoned, may free the master to consent to his sale, in order to relieve the slave.

The defendant insists, that the title to the negroes should be tried at law. Where this Court has jurisdiction in cases of this nature, it has plenary jurisdiction, and can decide every question, including that of title. In no case for the specific delivery of slaves *354that I know of, has the Court considered itself under the necessity of throwing the trial of title upon the Court of Law ; nor is there a precedent for such a proceeding in the analogous cases of practice.

Issues are ordered on matters of fact, at the discretion of the Chancellor, and to relieve his mind ; no party, in general, has a right to demand them. In this case, I have no doubts, which would induce me to refer the facts to a jury.

It is therefore ordered, that the Master do pay over to the heirs of the bo.dy of Hannah H. Cook, living at the time of the deed from Austin Paslay to Elizabeth Bird, trustee, the funds arising from the sale of the said negroes, under the order of Chancellor Wardlaw, dated 15th January, 1852, share and share alike, in the following manner, to wit :

1. To James Robert Cook, one-fifth ;

2. To Mrs. Eliza Wood, one-fifth ;

3. To the children of Nubilia Blewer, late Cook, share and share alike, one-fifth;

4. To Dorothy Frances Nopie, one-fifth ;

5. To Elizabeth A. Avery, late Cook, one-fifth.

The complainant, Hannah H. Cook, was born after the 7th of February, 1838, and is not entitled under the deed.

And is further ordered, that the defendant do account upon reference before the said Master, for the hire of the said slaves, Randall, Jerry and Joe, from the time that he had them levied on and confined in the jail of this district to *the date*of this decree, and for their board and expenses while in jail, which have been paid by Master Tupper, and which should be made good to him by defendant. And it is further ordered, that the said defendant do pay *the costs.*

The defendant appealed, on the grounds:

1. Because the defendant was entitled to a trial at law to settle the question of title to the negroes in dispute, and the Chancellor should have so decreed.

2. Because, the Court having refused a trial at law, and de*355cided the issue raised by the pleadings upon that point, the defendant was then entitled to an order of reference to take testimony as to the title, and should not have been forced to trial upon the complainants’ testimony alone, taken by the Master before hearing upon bill and answer.

3. Because the evidence was insufficient to set aside the defendant’s title, and establish the complainants’, and there is error in the decree, ordering the defendant to account for wages after the Master took possession of the negroes by order of Court, and on motion of complainants.

*Campbell,*for appellant.

*William Whaley,*contra.

The judgment of the Court was announced by

Dunkin, Ch.

This appeal was submitted on the brief. So far as the Court can j udge from the statement of facts appearing in the Chancellor’s decree, and the brief furnished to the Court, his judgment is well sustained by the reasons which he has presented. The decree is therefore affirmed, and the appeal dismissed.

DargaN and Wardlaw, CC., concurred.

JohNstoN, Ch., absent at the hearing.

*Decree affirmed.*