
    
      William H. Ruff and wife vs. John Thomas.
    
    1. R. S. died in 1819, and at the sale of his property by his executors, several slaves were bid off by one J. T. the defendant, one of which was the woman, with her increase, now in dispute. J. T. said he had bid them off for one J. M. as his agent. J. M. sent his note to the executor, with his father’s name as security, which was not regarded by the executor as sufficient. Afterwards, a letter, purporting to have been written by one D. T. was sent to the executor, ip. which it was stated he would become J. M’s, security, whereupon the negroes were sent to J. M. who was the putative father.of plaintiff’s wife. In a few days after the delivery to J. M. he sent the woman now claimed to N. S. the widow of R. S. and grand-mother of plaintiff’s wife, whose mother, a daughter of N. S. resided with her, The mother said she received the slave sent as a gift from J. M, to his then infant daughter, and held her as such six or seven years. It was in evidence that plaintiff’s wife was born in 1814, The negroes in dispute were seized by the sheriff in 1826, and afterwards sold under legal proceedings against one J. S. a son of R. S. deceased, and purchased by defendant. After the purchase of J, M- the note of J. S, had been taken by the executors for the exact amount of his purchase, and his note delivered up. I. S. removed all the negroes purchased except the woman claimed, and her mother — these he left with his mother, N. S, Plaintiff’s wife claimed under an alleged parol gift from her father, J. M. and by possession under the Statute of Limitations. The mother of plaintiff’s wife was married in 1827, to one J. L. the property'remaining with N. S. till after her marriage. L, after his marriage refused to take the woman claimed, or to permit his wife to do so, who was asked by plaintiff’s counsel to give the reasons why her husband so refused. Held, that the declarations of the husband, as to the reasons of his refusal, were incompetent, as hearsay evidence, and as not forming any part of the res gestee.
    
    2. It would have been competent for the wife to have said all that could have been properly established by his declarations — they were, therefore, objectionable, both as hearsay and as secondary evidence.
    3. As it appeared in evidence, N. S. had actual possession of the slave, her declarations were admissible in evidence, to give character to the act of possession, and this evidence was not to be precluded on the ground that the wife of J. L. first proved possession in herself.
    
      Before Butler, J, Union, Spring Term, 1844.
    Detinue for seven slaves — Haley, and her children. There is no material difference in the general statement of this cáse from what it was on a former trial, as reported by Judge O’Neall. The summary of the case is this: Reuben Sims died some time in the year 1819, and his property was sold in the latter part of that year, by his executor, Benjamin Maybin. Haley, at that time, (and from the time of plaintiff’s birth, in the fall of 1814,) was the nurse of the plaintiff, Mrs. Amanda Ruff, whose mother’s name, at that time, was Cicily Sims, daughter of Reuben Sims, and whose putative father’s name was James Mormon. The plaintiff, an illegitimate child, claims the negro.es in question, under parol gift from the father. When this negro and her mother, Pat, and two fellows, were sold, Eaph and Harry, they were bid off by John Thomas, the defendant, and charged to him in the sale bill. Thomas said he had bid .the negroes off as the agent of James Mormon, who was not at the sale, in consequence of the unfriendly feeling of the Sims’s family towards him. Maybin, the executor, agreed to let Mormon have them, upon his giving security. Mormon sent a note in the first instance, with his father’s name to it as security. The executor did not regard this as sufficient. John Thomas then brought a letter, purporting to have been written by Captain David Thomas, in which he said he would become security, whereupon the negroes were sent to Mormon. In a few days afterwards, Haley was brought by her own father, (a slave) to Mrs. Nancy Sims, the widow of Reuben Sims, and grand-mother of Amanda. The circumstances under which the girl was brought there, were detailed by Mrs. Cicily Lyles, the mother of Amanda. The witness was living with her mother, Nancy Sims, and when Haley was left there, witness received her as a gift from her father, James Mormon, to his daughter Amanda, and held her as such for six or seven years. Some time in 1826, Haley was taken by the deputy sheriff, Moffit, but was returned to finish the crop. Haley worked under overseers employed by Nancy Sims; but witness had her whenever she wanted her to attend on Amanda. The witness was mar-. ried to Lyles in 1827. Haley did not go with her husband, who refused to take her. Here the witness was asked what reasons her husband gave for not taking Haley. His declarations were rejected as incompetent.
    Nathan Sims gave evidence that in 1818, he heard Mormon say he had given Haley to his child, Amanda, and in a boasting way said he would, at a subsequent time, give her a fortune. This witness proved that Amanda was born in 1814, about the time the troops were on their march to Charleston.
    Tarlton Murphy said he had charge of Haley, as overseer of Nancy Sims, and that whenever Amanda wanted her to go to meeting, she was allowed to take her as her servant.
    On one or two occasions, when he was whipping Haley, Amanda and Mrs. Nancy Sims requested him to desist, as Amanda and Cicily kept a fuss, <fec.
    The family bible was offered in evidence. The book itself was not rejected; but the court held that the entries, which the witness said was a transcript from another bible, and not made till some five years since, were not the highest evidence, and were no more than the hearsay declarations of the person who made them. The value of the negroes being proved, the plaintiff closed.
    The first witness examined on the part of defendant, was a Mrs. John Lyles, a daughter of Reuben and Nancy Sims. She said she never heard of this gift from Mormon, till about the time this action was commenced, and never saw the negroes in Cicily Lyles’s possession. After the death of her father, they were in the possession of her mother; and she had heard her mother say that the negroes, Haley and children, belonged to Jack Sims, her son. Heard her* say so more than once. This evidence, which came out under a commission to examine the witness, was objected to as incompetent. The declarations of Mrs. Sims, to give character to her possession, were ruled competent. She being déad“^-having died in 1834, her declarations are the highest evidence of her understanding at the time, of the terms upon which she held possession.
    Some time in 1826, these negroes were taken by the sheriff and sold. Afterwards, both the deputy sheriffs of Newberry and Union were endeavoring to get hold of the negroes about the same time. The sheriff, Moffet, had been to Mrs. Sims’s in search of the negroes, and they were removed in the night to John Thomas’s, with a view to enable him to acquire some advantage in legal proceedings against John Simá¡ Whilst the negroes were at Thomas’s,old Mrs. Nancy Sims, who was in favor of Thomas having a preference over William Sims, who was contending in Newberry that the negroes were liable for a debt due from Jack Sims, said that the negroes belonged to her son, John Sims, and that she had had them moved to enable Thomas to have his attachment levied on them.
    
      The negroes were ultimately sold at Union, and bought by defendant. The attachments were spoken of in the first instance, with a view of fixing the time when old Mrs. Sims made the above declaration, and with no view of fixing the rights of any party under them. Both parties first acquiesced in the propriety of this mode of examination. When Col. Clough Sims was examined, and was speaking of having the negroes levied on under attachment in Newberry, for debt due to his father, an objection was made by plaintiff’s counsel, that the witness should not speak of the attachment, without its being produced. It was ruled that so far as it regarded the rights of the parties under the attachment, or the legal character of such a process, it was incompetent to speak of it, without producing the record.But, as a circumstance to fix a date, there W'as no objection to witness’s reference to the occasion when the officers of court were endeavoring to get hold of the negroes; and Col. Sims then went on and detailed the circumstances under which the negroes were sold. That he had been advised by Maybin that they were liable to attachment, <fec. and that he pointed them out to the sheriff, in the field where they were at work, and had them seized and sold at the court house.
    Wm. W. Glenn detailed a conversation which he had with Mormon, in which Mormon said he intended to give Amanda ten negroes, and send her to Salem; that he had promised Cicily he would do something for her, and that he would,, as he had not done so yet.
    Heard Nancy Sims say, in 1824, that she wished Jack Sims would come and take the negroes away, as Cicily and Amanda were always keeping a fuss with her about them.
    James Dickerson was overseer of Nancy Sims in 1824, and had under his charge Pat and Haley. The old lady then said the negroes were her son Jack’s, and if Jack should call for the negroes, he had a right to take them away at any time. Mrs. Lyles, (Cicily) would sometimes call the negroes Amanda’s.
    Mrs. Eliza Thomas, the widow of another overseer, said she heard Nancy Sims say Haley belonged to Jack Sims, and if Jack should take her away, she’d have to put another in her place. The evidence of Mrs. Truman and D. Caldwell, was to the same point.
    Benjamin Maybin, in reply for plaintiff, detailed the circumstances under which the negroes went into possession of Mormon; and how Jack Sims got possession of them afterwards. He said that J. Sims came on from Mississippi and was dissatisfied that Mormon should have his negroes, and proposed that the purchase of them by Mormon should be rescinded, and that he should become the purchaser in his stead. After some negociation, witness took Jack Sims’s note, with security, for exactly the same amount of Mormon’s, and delivered Mormon his note. When this was done, Pat and Haley were at Nancy Sims’s. When J. Sims returned to the west, he took with him all the other negroes but these two, but left them on his mother’s place.
    Jesse Maybin said that until about the time the attachment was taken out, he always heard Nancy Sims say the negroes belonged to Amanda. When the creditors were 
      getting out attachments, (evidence brought out by plaintiff,) the old lady said the negroes belonged to her son Jack, and that they were liable for his debts.
    Tarlton Murphy and Nathan Sims were re-called, and said that they had heard Nancy Sims say the negroes belonged to Amanda.
    Benjamin Maybin had spoken of receiving a letter from David Thomas, in which he had promised to become the security of Mormon, for the purchase money of the negroes. David Thomas was in court, and said, on the part of defendant, that he had never written such a letter; on the contrary, that he had refused to become the security of Mormon on more occasions than one. And Davis Caldwell swore that he had heard B. Maybin say that Mormon had become the purchaser of negroes, but being unable to give security, that Jack Sims had taken the negroes, on giving the security required.
    The first question made in the charge to the jury was this: Had Mormon ever a good or perfect title to the negroes vested in him by a valid transfer from Maybin ?
    This was, in some measure, a question of fact. In commenting on this part of the case, the court said that if Mormon had procured a letter to be written in the name of David Thomas, without his knowledge and consent, and had thereby got possession of the negroes, it would have been a fraud on Maybin, and such an one as might have rendered the transfer of the negroes void.
    2nd. Supposing Mormon to have had a good title in himself, was it competent for him to have made a gift, whilst he was in debt for a larger amount than he could pay 1 (and it appeared that he became insolvent in consequence of a debt contracted bfefore the purchase of these negroes.) Under such circumstances, as against subsisting creditors, the gift would be void.
    But, the court said, expressly, that as Maybin was now neither complaining ttor subsisting creditor, the true point of view to consider the case in, was, whether Mormon had ever made a valid gift to his daughter. In connection with this question, a gift Was defined, and its legal requisites described. The jury Were told the case mainly depended on this question; for if a valid gift had been made by Mormon, it was irrevocable, and could not be changed by a re-. scision of the contract between himself and Maybin. That it might be he had committed a fraud both upon Maybin and John Sims, by the rescisión, without communicating the fact that in the mean time he had made a gift of part of the negroes to his infant daughter. Her rights were independent, and after they had been regularly vested, could not be affected by the transactions of other parties, to which she was not a legal party. The inquiry of the jury was restricted, as far as possible, to the question, whether there was a gift or no gift. The declarations of Mrs. Nancy Sims were to be regarded as commentaries on the character of her possession, and might become important, in reference to the statute of limitations. For although Amanda had no title by gift,' she might have acquired a right as against John Sims, under the statute, if her possession could have been regarded as adverse.
    From the position taken by counsel, she claimed in both ways. The presiding Judge summed up the evidence, and submitted the case impartially to the jury, giving it as his opinion, entirely authorized by the evidence, that if Amanda was born in the fall of 1814, she had not been barred by the statute, defore the commencement of this action. Upon this point there was no serious question mude.
    The jury returned a verdict for defendant.
    The plaintiffs appealed, and moved the Qourt of Appeals for a new trial, on the following grounds :
    1. Because the court refused to permit the witness, Mrs, C. Lyles, to state the reason she did not take Haley with her from her mother’s when she married, was that her husband would not permit her. The defendant objected, which was sustained by the court.
    2. Because the court permitted the defendant to prove that the negro girl, Haley, was sold under proceedings in attachment in the case of Win. Sims vs, Jno. Sims, without producing the record in that case, nor even the execution, which was indispensable.
    3. Because the court rejected the family record, in a bible which had been kept and used as such for-many years, to fix the age of the plaintiff, Mrs. Ruff.
    
      4. Because the court admitted in evidence the declarations of Mrs. Nancy Sims, who was neither a party nor privy to this suit, which were incompetent, as plaintiffs had not offered any such declarations on their part.
    5. Because the court charged the jury that if it was the intention of B. Maybin and John Sims, to substitute John Sims for Mormon, they might regard John Sims as a purchaser from Col. B. Maybin, when he said he had only accepted John Sims’s note in payment for Mormon’s.
    6. Because his Honor charged the jury that if they believed that the letter signed David Thomas, brought to Col. Maybin by the defendant, was a forgery, the title to Haley could not vest in Mormon, as there was a fraud practiced on Col. Maybin.
    7. Because his Honor said to the jury, that the officers of the court regarded Haley as John Sims’s property.
    8. Because the court charged the jury that if the gift was made by Mormon, with an intent to defraud his creditors, then the gift was void, which was error, as plaintiffs submit, as there is no creditor now complaining.
    9. Because the gift was fully and clearly proved, and that the plaintiff’s wife had had possession of Haley for seven or eight years, which gave her a clear title against the creditors of Mormon and J. Sims; and that the verdict is decidedly contrary to law and evidence.
    
      Thomson & Fair, for the motion. Herndon, contra.
   Caria, per

Butler, J.

There was no objection taken to the pleadings on the circuit; and so far as they might go to affect any of the questions which have been made for a new trial, they should not now be permitted to have any influence on the decision of this court. I can perceive nothing in them, however, which would have deprived the defendant of the right to make the questions which involved the merits of the case, and which were submitted to the j ury; under his plea of not detinet, he had a right to contend that he was not holding the negroes against the title of the plaintiffs, which, in effect, put in issue all their titles, whatever they might be. The defendant could not be disturbed in his prim,a facie right to the property until a legal ti-tie had been established in another, and which the plaintiffs alleged in their declaration was vested in them, either by a gift, or by the operation of the statute of limitations.

For the purpose of considering and deciding on the validity of the gift, it was assumed by the Judge below, that Mormon had legally vested in him a good title to Haley, at the time he sent her to his daughter, the plaintiff. The possession, in the first instance, seems to have been given to the mother of Amanda, for the temporary or permanent benefit of her infant child.

Did Mormon part with his possession for the purpose of making a gift of the girl to his daughter; or, did he part with it temporarily only, and with an understanding that he could reclaim it at any subsequent time, when he might think proper to do so 1

In the first point of view, the title in the plaintiff, Amanda, would have been perfect, and beyond the control of the donor; in the other, his right to resume and dispose of the ownership of the negro would not have been affected.

Two juries, by their verdicts, have found that no valid gift was ever made, and that it was, therefore, legally competent for Mormon to return to Maybin the negroes which he had bought from him, and thereby subject them to the purchase of Jack Sims. If the gift had been established, the minority of Amanda would have protected her rights against the operation of the statute of limitations. That being found against her, necessarily, by the verdict, we must next look at her rights as they may have been affected by the statute of limitations in her favor. For although Sims, and those claiming under him, could not have availed themselves of the statute, it was competent for the plaintiff to have done so; and this brings up for consideration the question of possession, in respect to which, and the evidence connected with it, several of the grounds of appeal have arisen.

Although the first ground is but remotely connected with the question, it is necessary to consider it. The fact being ascertained that Haley remained at Mrs. Nancy Sims, after the marriage of Cicily with James Lyles, the question was asked the witness, (Mrs. Cicily Lyles,) what reason her husband gave why he would not take Haley with him; or to put it in a different form, what reason he gave for refusing to let his wife take the girl. These questions were propounded by the plaintiff's counsel for her benefit, and for the purpose, I suppose, of shewing that there was no intentional abandonment of possession. The witness was not prevented from saying that her husband refused to take the negro, or that he refused to let his wife take her; but the object of the question was, to get out from the witness what her husband said at the time, by way of giving his reasons for not taking the girl, Haley; in other words, to give the reasons of his refusal. As they were not stated, we are left to conjecture as to what the reasons were. I rejected them as hearsay declarations, and not forming, as was contended in argument, any part of the fes gestee. Declarations in the nature of fes gestee, to be admitted as original evidence must be so intimately connected with the main question at issue, as to give it explanation and character, and to be made simultaneously with it, They should be made too, by one who is performing an act, or who has just performed it, which indicates his present purpose and intention in relation to it. It is sometimes the case that acts are unintelligible, without these mingled or cot temporaneous explanations, particularly in matters depending on motive, purpose, or conduct; as professor Greenleaf observes in his Treatise on Evidence, 120, “it is extremely difficult, if not impossible, to bring this class of cases within the limits of a certain and uniform description. Their admissibility must be determined by the Judge, according to their relation to the fact, and in the exercise of his sound discretion.” Where declarations would be merely a narration of past occurrences, or where they consist of mere opinions in relation to any matter connected with the case before the court, they ought not to be given in evidence. The declarations or reasons of Mrs. Lyles's husband were not made in relation to any transaction in which he had been engaged. They may, if they had come out, have been wholly immaterial, or they may have consisted of a narrative of facts; or of suggestions as to the matters that had been brought to his knowledge by the information of others. What they were, I cannot tell; but I was satisfied they were connected with no fact or transaction with which he was personally connected, and it seems to me, now, that it was competent for his wife to have said all that could have been properly established by his declarations; and they were, therefore, objectionable, both as hearsay and secondary evidence.

As the fourth ground presents a question which is somewhat connected with the above subject, I would dispose of that next. In what light should the declarations of Mrs. Nancy Sims be regarded? It was contended that they were the hearsay evidence of one who had no legal connection with the suit, and ought to have been on that account rejected. I admitted them as original evidence, on the ground that they were declarations in disparagement of the title of the declarant, and went to give character to her possession. I did not undertake to decide w'hether the possession was in Mrs. Nancy Sims or in Amanda, nor did I determine whether Mrs. Nancy Sims held for Amanda, or for her son Jack Sims. I could only look to the fact as it was stated by the witnesses. When Mrs. Cicily Lyles said she had the possession, I allowed her to say (and if she had been dead, I would have allowed her declarations to the same effect) that she held the girl Haley for the plaintiff; and when it was proved that Mrs. Nancy Sims had the actual possession, which was prima facie title in herself, I allowed her declarations to be given in evidence, to give character to the act of possession. If such evidence could have been precluded on the grounds that Mrs. Lyle& had first proved possession in herself, then the rights of the parties would depend on the priority of examination, and not on the truth of the fact in relation to possession, to be determined by the jury. The court could look only to the prima, facie position of the parties claiming the actual possession. It may have been at one time in one, and at another time in the other. The character of the possessions could not be well ascertained, but by the verbal explanations of the parties holding them. They would go to shew the present purpose and intention in relation to the possession, and if made in good faith, to be judged of by other rules of evidence, they should be regarded as part of the res gestee. It is upon this principle that professor Green-leaf regards the declarations of a tenant, in disparagement of his own title, as good evidence to go to the jury. In the case of Peaceable vs. Watson, 4 Taunton, 17, Mansfield, C. J. says, possession is prima facie evidence of seizure in fee simple, and the declaration of the possessor, that he is a . tenant of another, it is said, makes most strongly against his own interest, and, therefore, is admissible. See, also, the case of West Cambridge vs. Lexington, 2 Pick. 536. So far as it regards the principle, there can be no kind of difference between real and personal property. In both cases the object would be to ascertain the purpose of the act in holding possession.

As to the second ground, which was insisted on in argument, and which is of a different character from those I have just disposed of, it'may be sufficient to say, that the defendant was not bound to introduce any evidence at all of his title; and whether, therefore, his title, under the proceeding in attachment was valid or not, was immaterial. The plaintiffs were bound to shew title in themselves,and if they had done so, the proceedings in attachment would have availed the defendant nothing, no matter how regular they might have been. The defendant should not, therefore, be prejudiced by their non-production, when the plaintiffs have failed to make an independent title in themselves. If these proceedings were in any wise of importance, they should have been produced by the plaintiffs themselves, either to affect the evidence or for any other purpose.

I regard it as unnecessary to advert to any other of the grounds of appeal, as they were not pressed, and seem to have no merit in them. Motion refused.

O’Neall, Evans, Wardlaw and Frost, JJ. concurred.  