The petitioner, Burkett, is the survivor of two trustees named in the marriage contract made between Charles Levistone and Melanie De Mestre, his wife, in which certain settlements were made on her, and provision made for the trustees holding property for her separate use. The contract is shown to have been made in the State of Georgia, and according to the laws of that State. Levistone and his wife are also parties to the suit, and, with the aforesaid trustees, claim a slave named Diana, in the possession of defendants. They cited Madame Lalaurie, their vendor, in warranty, and she cited Hardy, her vendor, who appeared and prayed that his vendor might be cited, but it does not appear that he ever was, or that he appeared. The defendants deny that the plaintiffs have any right or claim to the slave, and plead prescription.

The evidence shows, that the slave was purchased in.1829, in the city of Savannah, by Thomasson, one of the trustees, for the use of Mrs. Levistone. Her possession for several years is proved, and the slave is identified by a witness who knew her well in Savannah, and has seen her in possession of the defendants. On the part of the latter it is shown, that this slave was sold in New Orleans, in the year 1S32, to Hardy, but in what way his vendor divested the plaintiffs of their title is not satisfactorily shown. There was a judgment in favor of the plaintiffs, decreeing that the defendants Layton & Co. should deliver up the slave, and pay the plaintiffs hire for her, at the rate of $15 per month, from the 18th day of December, 1837, until so delivered and costs* *458These defendants had a judgment against Madame Lalaurie for the sum of $1000, the price they paid her for said slave, and tor hire at the aforesaid rate from the same date ; and she, in turn, had a judgment against Hardy for #400, the price she paid, and for hire at the said rate. From this judgment the defendants Layton & Co. and Madame Lalaurie have appealed.

The case has been submitted without argument or points filed. We have examined the record and find no error as between the plaintiffs and Layton & Co.; but as between them and Madame Lalaurie, we think there is error. She is condemned to pay hire for the slave since her vendors have been cited, whilst they have all the time had the use and possession of the slave, who is proved to be a valuable one. This is wrong, and must be corrected. She is only liable for the price she received and interest; the defendants Layton & Co. having, it is to be presumed, been benefitted by the use of the slave to the extent of her hire.

As the judgment of Madame Lalaurie against Hardy has not been appealed from, we cannot correct it directly; but it is so clearly unjust that she should recover of him hire for the slave when she does not have to pay it herself, that we will attach a condition to the relief we propose to extend to her. In seeking equity she ought to do it herself. If we do not impose some restriction on Madame Lalaurie, she would receive hire for a slave she had sold and received money for, and had the use of during the whole time.

It is, therefore, ordered and decreed, that the judgment as between the plaintiffs and the defendants Layton & Co. be affirmed, but as between the latter and Delphine McCarty, (Madame Lalaurie,) it is ordered and decreed, that said judgment be annulled and reversed ; and this court, proceeding to give such judgment as in its opinion ought to have been given by the court below, orders and decrees, that the said Layton & Co. recover of the aforesaid Delphine McCarty (Madame Lalaurie,) the sum of one thousand dollars, with interest thereon at the rate of five per cent per annum from the 18th day of December in the year 1837, until paid, and costs in the court below ; it being well understood that this relief is granted to said Madame Lalaurie, upon the express condition that she shall not take or receive on her judgment *459against Joseph Hardy, f. m. c., her warrantor, more than the sum of four hundred dollars, with interest at five per cent per annum, from the 18th day of December in the year 1837, until paid, and the costs in the court below. The costs of this appeal to be paid by the appellants Layton <fc Co.