
    Richmond.
    Tutt v. Slaughter’s adm’r.
    
    (Absent Cabell, P.)
    1. On a demurrer to evidence, the demurrant admits all that can be reasonably inferred by a jury from the evidence given by the other party; and waives all the evidence on his part which contradicts that offered by the other party, or tends to establish a case inconsistent with the case proved by the evidence of the other party.
    2. What is sufficient proof of a parol gift of slaves, and of their delivery, and continued possession by the donee ?
    This case was before this Court in 1841, and the decision then made is reported 12 Leigh 147. It was an action of trover, by Archibald Tutt against Martin Slaughter, and revived against Slaughter’s adm’r, for the conversion of six slaves. Slaughter, as the administrator of the plaintiff’s father, Archibald Tutt, sr., had taken possession of the slaves and sold them; and the only question was, whether Moses and Mimy, who were the parents of the slaves in question, and Eliza, their child, had been given to the plaintiff by his father in his lifetime.
    When the cause went back, there was a trial and a verdict for the plaintiff, which was set aside by the Court. There was then a second trial, when the jury could not agree. On the third trial, the defendant demurred to the evidence, and the jury found a verdict for the plaintiff for 2012 dollars 13 cents, subject to the opinion of the Court upon the demurrer; and upon that demurrer, the Court gave a judgment for the defendant. The plaintiff then applied to this Court for a supersedeas, which was awarded. The evidence of the plaintiff, without specifying the different witnesses, was as follows:
    
      About the year 1816 the plaintiff, who was then a very young man, left his father’s house, where he had theretofore lived, and went to a place called Rock Mill, in the same county, where he opened a small store and a blacksmith’s shop. About the same time a negro man named Moses, who had been theretofore the property of the plaintiff’s father, and was a blacksmith by trade, went to the same place, and worked in the blacksmith’s shop as long as it was kept by the plaintiff. At the same time a negro woman named Mimy, the wife of Moses, and who had also been the property of the plaintiff’s father, went with him; both of them going from the house of the father. The plaintiff continued the business at the Rock Mill for a year or two, and then broke it up, and he and the slaves returned to his father’s house about the same time, probably together. Prom that time the plaintiff lived with his father until the father’s death; and the said negroes and all their children lived upon the father’s plantation, where both father and son resided. Some time after the plaintiff returned to his father’s house, but so long since that the witness could not say whether it was before or after August 1819, the father told the witness that he had given the negro man Moses and his family to the plaintiff, but said nothing about having given the wife and child of Moses. The witness knew both Moses and his wife well, and knew that they had a child, and regarded the same as a part of the family. This conversation was a short time after the return of the plaintiff and the negroes to the father’s house, and long prior to 1827, or the commencement of the father’s difficulties and embarrassments, so far as they had been heard of by the witness.
    When the plaintiff opened the store and blacksmith’s shop, his father was in possession of a large visible estate, real and personal; and was not indebted so far as witness knew. He was an affectionate father; had made gifts of slaves by way of advancement, to others of his children; and Moses and his family would not have been more than a reasonable advancement to the plaintiff from his father at that time.
    In 1827 or 1828, William G. Allen applied to the plaintiff’s father to purchase of him Moses and his wife and children, but the father told him they belonged to the plaintiff, who alone had power to sell them. Allen afterwards applied to the plaintiff, who demanded what Allen thought a double price for them.
    Prior to the year 1829, the father of the plaintiff, and with whom the plaintiff, an unmarried man, lived, was in the habit of giving in, in his own name, all the taxable property on the farm, and all the county levies, including his sons, who resided with him. But in 1829, when the commissioner of the revenue applied to him for his list of taxable property, he stated he had been in the habit of including with his that of his two sons, but that thereafter they must give in their own property ; and he called to his sons, the plaintiff and Richard, to come in and give in their property. They did so, and the plaintiff gave in then three slaves, one between twelve and sixteen, and two over sixteen years of age; and he continued to give in these slaves until they were sold in 1833.
    When Marlin Slaughter, the administrator of plaintiff’s father, was making an inventory and appraisement of the father’s estate, the plaintiff claimed Moses and the slaves involved in this suit, and objected to their being put into the inventory, or being appraised as a part of the estate; and at the sale, which was afterwards made by Slaughter, the plaintiff renewed his claim to the slaves, and forbade the sale of them; which was nevertheless made. At this sale, Moses was purchased by Richard H. Field, then, and ever since, the Judge of the Circuit Court of Culpeper; and after the sale, Slaughter told the plaintiff’ to bring a suit for Moses in the County Court of Culpeper, and that if it was decided against him, he would abide that decision as settling the right to the slaves in question in this suit, and would pay the plaintiff what they had sold for, to which the plaintiff agreed. Such a suit was brought in the County Court of Culpeper for Moses; and was decided in favour of the plaintiff.
    In 1830, the coroner of the county went to the house of the plaintiff’s father with an execution against the father of a very considerable amount, to levy the same, and with an intention to levy on slaves. The plaintiff said it should not be levied on the negroes that belonged to him, but did not say what negroes he claimed as his; and the father, who was present and heard him, replied, “never mind, there is plenty of other property to levy upon.” The coroner then made his levy upon sundry negro men, of whom Moses was not one, and some other property, but upon no negro women or children.
    On cross examination, a witness said, that he had lived from a period antecedent to 1817, a neighbour to the plaintiff’s father, until his death, and had been intimate in the family, visiting at the father’s house as often as five or six times a year; and that he was intimate with the plaintiff himself; and that he had never heard either say that the father had given to the plaintiff the slaves in question in this suit, or their progenitors, the aforesaid Moses and Mimy; nor had he ever heard the plaintiff lay claim to any of them prior to the sale by Slaughter, except Moses. He had frequently heard him speak of Moses, who worked in a blacksmith’s shop at the farm of the father, as his blacksmith, and of the shop as his shop.
    The plaintiff introduced as evidence the books of the commissioner of the revenue, and shewed that in 1817 and 1818, he was charged thereon with two slaves over sixteen years, and with one between the ages of twelve and sixteen ; and that in the years 1830, ’31 and ’32, he was charged with slaves, over the age of sixteen years, and with , between twelve and sixteen. He also introduced in evidence, the record of his recovery of the slave Moses. This is the record of an action of detinue brought by the present plaintiff against Martin Slaughter, in the County Court of Culpeper, for the slave Moses, in which there was a verdict and judgment for the plaintiff.
    The foregoing being all the evidence adduced by the plaintiff, the defendant introduced a deed, bearing date the 8th day of November 1827, and duly admitted to record, by which Archibald Tutt, the father of the plaintiff, conveyed to Leíais Y". Field five negroes, tWo of whom were Moses and Mimy, and the other three bore the same name with three of the slaves in question in this suit, in trust to indemnify the plaintiff as his surety in two bonds executed to a Mrs. Williams. The defendant also introduced the books of the commissioner of the revenue, and shewed that from the year 1819 to the year 1829, both inclusive, the plaintiff, who was all the time residing with his father, was not charged with any slaves, nor with himself as a tithable; the whole being charged to his father. The defendant also introduced the record of an action brought by the plaintiff against Martin Slaughter, as administrator of the plaintiff’s father. This was an action of assumpsit to recover the amount of an account, one item of which was for the plaintiff’s services, from the 1st of January 1819, till the 1st of May 1832, at 150 dollars a year, 2000 dollars; and another item was for the hire of blacksmith Moses, for the same time, at 75 dollars a year, 1000 dollars. And the account contained no charge on account of any other of the slaves in controversy in this suit. The defendant pleaded non assumpsit by his intestate, non assumpsit within five years, fully administered, and debts of superior dignity. Issues were made up on these pleas, and the jury found a verdict for the plaintiff for 1250 dollars ; and found for the defendant upon the two last pleas: and there , was a judgment when assets.
    The defendant also introduced the inventory and appraisement of the estate of the plaintiff’s father, in which Moses and the slaves in controversy in this case are included; and a memorandum thereon- made, as it says, at the request of Martin Slaughter, the administrator. This memorandum names several slaves included in the appraisement as claimed by the different children of the intestate, under gifts from their father; and among others “ Moses, the blacksmith, is claimed by Archibald Tutt,jr. by title derived from his father.”
    The defendant also introduced a witness, Lewis Y. Field, who said: That he_ was one of the appraisers who made and signed the appraisement aforesaid. That the memorandum thereon was wholly written at the time of the said appraisement, and in pursuance of the claims set up to portions of the property included in the said inventory. That the plaintiff was present at the time, and claimed only the man Moses, mentioned in the said note or memorandum. That the said Martin Slaughter desired the said note or memorandum to be inserted for his own safety, (as the estate of his intestate was known to be very much involved, if not insolvent,) that he called upon the children present, (of whom the plaintiff was one,) to mention what part of the property was claimed by them; and the note or memorandum was made in pursuance of the claims thereupon asserted. That the witness was a near neighbour of the plaintiff’s father from the year 1814 till the death of the latter, which happened in the spring of the year 1832. That the plaintiff left his father’s house, and went to the Rock Mill about the year 1816 or 1817, where he opeued a store and blacksmith’s shop. That the plaintiff’s father was the owner of a negro man named Moses, who was a blacksmith, and of his wife Mimy, who went from his residence to the said Rock Mill about the same time the plaintiff went; and with them went a girl named Eliza, at the time their only child. That after a year or two, the store and blacksmith’s shop were broken up, and the plaintiff and the negroes returned about the same time to the residence of the plaintiff’s father; but whether they returned together, the witness could not say. That thenceforward the plaintiff and the said three slaves, and the increase of both the females, lived at the plantation of the plaintiff’s father, on which the plaintiff’s father resided and kept house. That from that time till the death of the plaintiff’s father, all the said slaves were in the visible possession of the plaintiff’s father, in like manner as the other slaves on the said plantation, of which there were many. That Mimy, the wife of Moses, and Eliza their daughter, were house servants, and waited, as such, in the house, w’hile Moses himself was a blacksmith, and worked in a blacksmith’s shop that was kept at the mill of the plaintiff’s father. That the witness had his work done for many years at that blacksmith’s shop, and always regarded it as the shop of the plaintiff’s father; that it was so considered in the neighbourhood, and the witness always settled his blacksmith’s account with the plaintiff’s father, and paid him. That the plaintiff himself never called upon the witness for payment, nor set up any claim against him on that account. That at the death of plaintiff’s father, the witness was indebted to the said blacksmith’s shop, and paid the amount to Martin Slaughter, as administrator of the plaintiff’s father; the propriety of which the plaintiff never disputed. That the witness was the trustee in the deed of trust from the plaintiff’s father to indemnify the plaintiff as his surety, before mentioned, though he was not apprised before the execution of it, that such a thing was designed; and he did not know that the plaintiff was aware of the execution of it at the time ; but after-wards, more than once, the plaintiff told him that if he could succeed in raising money enough, he, the plaintiff, would get him, the trustee, to sell the slaves under the deed of trust, and the plaintiff would buy them. That the plaintiff’s father, though possessed of a large property, was always embarrassed with debt since the witness knew him, which was from the year 1814, as before mentioned, and longer; and about the year 1827, and afterwards, he was in difficulties on that account. That in these conversations the plaintiff never advanced any claim to the said slaves, or any of them ; nor complained of his father’s having included them in the deed of trust. That the slaves so included in the deed of trust, were the same Moses, the blacksmith, who had gone to the establishment at the Rock Mill, and returned there as before stated, and who was afterwards sold by Martin Slaughter, as administrator as aforesaid, and claimed and recovered by the plaintiff, as has been stated; and Mimy, his wife, who afterwards died in the lifetime of the father of the plaintiff; and Eliza, the daughter of the said Moses and Mimy, who went with them to the said establishment at the Rock Mill, and returned as aforesaid; and Dick and Milly, other children of the said Moses and Mimy, who were afterwards sold by Martin Slaughter, as administrator as aforesaid ; and are part of the slaves now in question in this suit. The other slaves in question in this suit, namely, Charlotte, Mimy and Moses, (the younger,) were children of the said woman Eliza, bom after the date of the said deed of trust. That the witness never knew the plaintiff at any time to claim any of the said slaves in the lifetime of his father, unless he intended to claim them, or some of them, in a conversation which took place while the plaintiff’s father was in his last illness, and in fact on his death bed. That it was then proposed by some one that the plaintiff’s father should make a will, but it was the opinion of several that he was too far gone to be able to make one, upon which the plaintiff remarked that it made no difference to him, he was provided for; from which the witness supposed that he alluded to the family of slaves now in question, because he knew not what else he could allude to; and he had heard that the plaintiff had that day asserted to another person a claim to them. On cross examination, the witness said : That at the time of the gift alleged by the plaintiff to have been made to him by his father in 1816 or 1817, the slaves Moses and family were but a reasonable advancement from one in his condition to a son, there being then only one child of the said Moses and his wife. That from the time of the plaintiff’s return to his father’s residence from the Rock Mill, he not only lived with his father, but also aided him in the management of his father’s affairs, and seemed to be the principal manager; though during part of the same time, the plaintiff’s father had three different overseers, one for two years, another for one or two years, and another for part of a year. That the plaintiff was much confided in by his father, and was active and attentive to his business; that he was a special favourite of his father. That in 1828 the plaintiff married, and his wife lived in the family of his father, and was the female head of the family, the father of the plaintiff having at that time no white family of his own. That taken as a whole, apart from Moses, from the time of the plaintiff’s return to his father’s until the death of the latter, the slaves claimed by the plaintiff were worth no hire; though for a part of the five years immediately preceding his death, they were worth something, but in the latter part of that time nothing. That the plaintiff’s father gave to his daughter who married Mr. Thomas, three negroes on that occasion, which happened some time in 1821, 1822 or 1823 ; and that he considered the slaves Moses, Mirny, and their descendants, as being in the visible possession of the plaintiff’s father, because they were in his employment, and worked for him in like manner as the other slaves in his possession. It further appeared, that of the subscribing witnesses to the deed of trust before mentioned, the first named and draftsman thereof, was the now defendant in this suit; the second was alive, and a resident of the neighbourhood, but not produced as a witness; and the third was dead. That the girl Eliza, the child aforesaid of Moses and Mimy, was born in or about the year 1815, and subsequently thereto the said Mimy had two other children, the aforesaid Dick and Milly.
    
    
      Patton, for the appellant.
    
      Leigh, for the appellee.
   Allen, J.

delivered the opinion of the Court.

The Court is of opinion, that as by the demurrer to evidence the demurrant has admitted all that could be reasonably inferred by a jury from the evidence given by the other party, and waived all the evidence on his part which contradicts that offered by the other party, or tends to establish a case inconsistent with the case proved by the evidence of the other party, the evidence of the plaintiff in error in this case, taken by itself, and as unimpeached and unaffected by contradictory evidence, would have justified a jury in reasonably inferring a gift of the slaves in question, by his father, the said A. Tutt, deceased, to the plaintiff in error, and that possession passed from the donor to the donee, and remained with the donee under such gift; and as the evidence of the defendant in error, tending to prove a loan, seeks to establish a case inconsistent with, and so contradictory to the case proved by the evidence of the plaintiff in error, the same, according to the principles established in the case of Green v. Judith, 5 Rand. 1, must be disregarded.

Judgment reversed, and judgment on the demurrer to evidence for the plaintiff.  