This Court is of opinion that there was error in the Court below; in holding, there was no evidence to support the affirmative of either of the issues.
It may be assumed as a fact, in deciding the matter now before us, that in. the latter part of the fall of 1854, Dugald McDugald was the owner of certain slaves, Nancy and her children. Having acquired them by his marriage he had been in continued possession of them for fourteen or fifteen years, up to that time. The plaintiff’s judgment is obtained against him at October Term, 1854; and in that fall he employs John McNeill, a nephew of his wife and a nephew of defendant McNeill, to conduct these slaves to the house of one Pegues, who was a brother-in-law, residing in the State of South Carolina.
The slaves are taken charge of by John McNeill, at 9 o’clock at night, about half a mile from Neill McNeill’s house, with the knowledge of McNeill, but under instructions from McDugald.
It is further in evidence, that Neill McNeill afterwards took the negroes from the house of Pegues — carried them to Missippi and sold them. At what time the latter occurrence took place, does not certainly appear; but it is in evidence that Neill McNeill went to the house of Pegues, in the winter of 1854-’5, or spring of 1855; and there is no evidence of any other visit.
Taking the evidence, thus detailed, together, it seems to us to afford, to say the least of it, some evidence that the slaves in question were taken off by Neill McNeill, the defendant, to the State of Mississippi, and sold before the Pall Term, 1855, of the county court, when his answer was put in ; and, consequently, between the time of the judgment against McDugald *48and libe answer to tho scire facias, lie, McNeill, had the proceeds of the sale of the slaves in his hands, and in contemplation of law,, these proceeds were the- property of McNiugald, the debtor.
It is not proper for us to say how much this evidence weighs in establishing the affirmative of the issues, or either of them ; but, we think it is of some- weight and ought to have- been submitted to the jury.
We decline discussing the case in, any other aspect or upon any other point of the evidence. The facts now in proof are different from those presented by the pleadings, and which were assumed to be true on a former discussion of it in this Court, ,(6 Jones, 450) and we content ourselves with simply declaring, that, according to the proofs reported, it was erroneous to hold there was no evidence in support of the affirmative of either of these issues. There should be a reversal of the judgment of nonsuit, and a venire de novo..
Judgment reversed.