
    Dooley v. McEwing.
    Writing is non necessary to convey title to a slave by contract executed; parol proof is therefore admissible to establish title to a slave. (Note 0:5.)
    The declaration of a deceased person that he hail sold a slave and given a bill of sale of him is admissible, without accounting for the absence of the bill of sale in a controversy between the administrator of the deceased and the grantee.
    Appeal from Rusk. This suit was brought by the appellee to recover from the appellant a negro and his hire. The defendant claimed the negro as the administrator of Thomas IV. Bell, deceased. On the trial .the plaintiff introduced a witness, Dr. Lee, the physician who attended the deceased in his last sickness, who testified that a few days before his death tiie deceased, speaking of the disposition of his property in view of his approaching death, stated to the witness and si Mr. Waller, who had been the traveling- companion of the deceased, that the negro Jim, now in controversy, belonged to McEwing, the plaintiff, who resided in Mississippi. He stated that he liad sold the negro to McEwing, and had given him a bill of sale, which he, McEwing, then had. To this testimony the defendant objected, but the court overruled the objection.
    The deceased sit the same time further stated that McEwing, who was his ' brother-in-law, and with whom he, being in declining health, had resided in Mississippi, liad let him have the negro to’ retain during his life, and he requested Waller to take the negro back to Mississippi to McEwing. There was other evidence conducing to show title in the plaintiff.
    The court instructed the jury that the admission by a party that he had sold a slave and given a bill of sale of him was evidence of the fact, although the bill of sale was not produced or its absence accounted for.
    The defendant, among other matters, asked the court to instruct the jury, “ 1st, That if the contract of sale from Bell to the plaintiff was in writing, then the plaintiff must produce that written contract or account for its loss before lie can give evidence of its contents; and, 2d, That a parol sale of a slave is void under the statute of frauds.” These instructions the court refused. There was a verdict and judgment for the plaintiff, and the defendant appealed.
    Note 63. — Clifton v. Lilley, 12 T., 130.
    
      Turner and Armstrong, for appellant.
   Wiibelbr, J.

We have heretofore decided that writing is not necessary to convey tillo to a slave, and that tiro ownership of this species of property may be established by parol evidence. (Davis v. Loftin, 6 Tex. R., 489.)

The only question to be determined in this case, therefore, is whether the oral declaration or admission of a party of his having sold a slave, when that sale was evidenced by writing, is admissible as primary evidence of the fact.

It is the well-settled general rule that ‘‘oral proof cannot be substituted for the written evidence of any contract which the parties have put in writing.” (1 Greenl. Ev., sec. 87.)

There are cases, however, in which the verbal admission of the contents of a writing by the party himself will supersede the necessity to produce or account for the non-production of the writing; that is, may bo used as primary evidence of the contents of the writing against the party making the admission and those claiming under him.

A distinction is to be observed (says Greenleaf) “between a confessio jurie and a confessio facti. If the confession is of the former nature, it falls within the rule already considered, and is not received, for the party may not know the legal effect of the instrument, and his admission of its legal effect may be exceedingly erroneous; but where the existence and not the formal execution of the instrument is the subject of inquiry, or where the writing is collateral to the principal parts, and it is on these facts that the claim is founded, the better opinion seems to be that the confession of the party precisely identified is admissible as primary evidence of the facts recited in the writing.” (1 Greenl. Ev., sec. 96.)

The admission of the party in the present case was evidently of the latter character, and as such was admissible in evidence.

Where the terms of a written contract are in controversy the writing must be produced. But that was not the case in this instance. The writing was collateral to the principal fact, which was the sale, and which it was competent to prove bv the oral admission of the party as primary evidence of the fact. (Id., secs. 07, 203.)

The defendant, claiming under the party who made the admissions, is bound by it.

We are of opinion that the court did not err in the admission of the evidence or in the instructions to the jury, and that the judgment be affirmed.

Judgment affirmed.  