
    M. B. Bogan vs. Wm. White, alias Wm. Faucett.
    In trover for a negro, the defendant relied on a gift. The £ury found' for the plaintiff. Pending an appeal, a different jury in the same district sustained the gift, in an action for other property embraced in it. A new trial was granted in the former case, although the Court might not otherwise have disturbed the verdict.
    Until a defendant can show a title to the possession of the property in dispute, he cannot disturb the possession, or question the title of the plaintiff.
    In reply to the cross-examination of a witness called to impeach another, he may be asked what persons he has heard say that they would not believe the witness.
    BEFORE O’NEALL, J., AT UNION, OCTOBER TERM, 1836.
    This was an action of trover for the recovery of the value of a negro man named Mingoe. The defendant relied on a parol gift from the former owner of the slave, Isaac Harlan, to his natural daughter, Nelly Johnson, afterwards the wife of the defendant. The plaintiff proved possession of the slave for four or five years before the defendant obtained possession. He also proved the re-execution of a bill of sale from Isaac Harlan to the plaintiff, in May, 1832, which had been previously executed, but the attestation cut off because he did not like the witness Geoffrey Palmer. He proved the conversion, and the value of the slave and his hire to be one thousand one hundred and fifty dollars. The defendant proved by a witness, that about ten years ago, the witness was at Isaac Harlan’s, in company with -the mother 'of the defendant’s wife, for the purpose of making some clothesthe negro woman of Harlan was sick, and he wished the mother of defendant’s wife to stay with him and take care of the negro. The child Nelly (Mrs. Eaucett), began to cry: upon which Harlan told her if “ she would go along, and let her mother stay, she might take the two negroes Mingoe and Jesse, whom he had given to her, home with herand he called up the negroes and sent them with her. The mother of Nelly Johnson, made clothes for.these negroes. Harlan was an unmarried man; he had by the same woman, Sally Johnson, two children, Nelly and another, whom he always acknowledged : at the time of this gift he had five negroes : these two boys, Mingoe and Jesse, and two others, Bill and Luke, (whom he gave to his other daughter Sally,) and a woman. In corroboration of this account of the gift by the witness, it was proved by another that the negro boy Mingoe was backwards and forwards at Nelly Johnson’s mother’s: and also by Dr. Nance, that he attended on Jesse, when sick at Harlan’s; that subsequently getting better he went to Sally Johnson’s, the mother of Mrs. Eaucett, when he relapsed, and he attended him there: Harlan was there while the negro was sick: that he had heard the plaintiff say he “ did not want Harlan to squander his property, he wished to prevent Mm from so doing: he wished him to keep it for his children:” and also by another witness, that the plaintiff told him "he knew 'that Harlan had given the negroes to his children that after he bought Jesse, the witness said to him if he had bought the negroes he would run them off: the plaintiff asked why? the witness replied that there would be law about them; upon which the plaintiff said, “ they (meaning the defendant’s wife and her sister,) will never be able to law with meand also by another witness, that between ’25 and ’30, he had heard the plaintiff say, that “Mingoe belonged to Nelly Johnson,” he', the plaintiff, also said that he "had the negroes, Mingoe and Jesse, in possession, and he intended, to keep them, if he had to law them; the girls, he said were not able to law for them ;” and also by another witness, that in ’26 or ’27 he heard the plaintiff say he “was sorry for Isaac’s children, that they should lose the property; he was trying to save it for them.”
    It was contended by the plaintiff that, admitting the gift, still it could not prevail against him on account of Harlan’s present or subsequent indebtedness. The proof was very clear that from 1826, when the gift was first proved, to his death,'Harlan had been much in debt. To this the defendant replied, that conceding this to- be so, still that the plaintiff acted as Harlan’s agent through all this time, in selling his crops and paying his debts, and that independent of the slave Mingoe, he had abundant funds in his hands to pay all his debts. This the presiding Judge thought was fully made out; and that comparing the debts, proved to have existed, and which were paid by Bogan, with the funds in his hands arising from the land' bought of Harlan, crops sold by him, and a note of five hundred dollars, given by him to Harlan, when he took a mortgage from him, the balance of which is included in the estimate of debts, that they were so nearly equal that the gift ought not to be affected for either existing or subsequent indebtedness.
    It was also contended by the plaintiff that he was a purchaser for valuable consideration without notice of the gift. The defendant denied that he was a purchaser for valuable consideration; and if that was so, then he contended that he had notice. The proof of purchase for valuable consideration on the part of the plaintiff, depended upon the bill of sale, and the acknowledgment made by Harlan in the presence of the witness Taylor, (who proved the re-execution of the bill of sale,) that he was paid for the negro except one hundred and twenty dollars, which the plaintiff was to pay, by giving up some evidence of indebtedness for that amount which he had, which was done in a subsequent settlement, proved by ¥m, M. Thomson. His Honor reported that it seemed from the proof that the whole consideration for Mingoe arose from payments made, or to be made, by the plaintiff, for Harlan, and hence if he had abundant other funds of Harlan’s, to reimburse him for past, and to enable him to make future payments, which he did, independently of the price of Mingoe, that the conveyance or bill of sale' was without consideration. This was his conclusion from the evidence. It appeared that the plaintiff did exercise great influence over Harlan; that when tbe bill of sale was at first executed no money was paid: and that when re-executed, tbe same thing occurred: that tbe plaintiff obtained from Harlan tbe.execution of a mortgage of two other negroes, Luke and Bill, by suffering him to drink, without any consideration of past or present indebtedness; for subsequent to its execution, and on the same day, he gave Harlan his note for five hundred dollars. To procure the execution of this, he sent for whiskey to induce Harlan to execute it; and when executed, he refused to let him have more, saying “he had got what he wanted.” These facts were proved by Geoffrey Palmer and William Hays: the character of the latter was-assailed, but the result of the attack showed he was entitled to credit. The question of notice depended upon the. facts, which have already been detailed in corroboration of the gift: it seemed if the witnesses were believed, that the plaintiff had notice. The character of Aaron Pruett, one of the witnesses, was attacked ; John Grist and Will Sumner gave him a good character and said he was entitled to belief. In the course of the ifivestigation and in the examination of Charles Bogan, a witness introduced to impeach Pruett, in reply to the cross-examination, he was allowed to say that he had heard one Wilburn (the friend of the defendant, his bail and agent, in defence of this case,) and Geofffy Palmer say, they would not believe Pruett. The defendant’s attorney objected to this answer — his Honor at the time of the trial thought it of little moment, made no note about it, and did not remember the distinct ground upon which it was put: but supposed it was to enable the witness to show, that his opinion of his character was well founded.
    He was of opinion that the case depended upon the gift: if that was satisfactorily made out, the defendant was entitled to a verdict; otherwise the plaintiff should recover. He remarked to the jury, that if the gift failed, the plaintiff was entitled to recover, no matter how fraudulent his title might be. Until the defendant could show a title to the possession of the slave, he had no right to disturb the possession of the plaintiff or question his title. He thought the gift made out by unimpeached and uncontradicted testimony; and that the defendant ought to have had a verdict. The jury found for the plaintiff. His Honor farther stated in his report of the case, that be should not have been disposed to disturb their verdict, had it not been that at the Extra Court at Union, then just over, he tried a case between these parties for a slave Jesse, depending on the same gift, and where the plaintiff relied on Harlan’s indebtedness and a purchase; and in that case the jury would have most correctly found for the defendant, had not the plaintiff, when they were about to deliver their verdict, submitted to a nonsuit. He, therefore, thought the Court of Appeals ought to order a new trial in this case.
    The defendant appealed, and moved for a new trial, on the following grounds:
    1st. Because the Court instructed the jury, that if they should find against the gift relied on by the defendant, made by Harlan to'his daughter, then it mattered not how much soever the plaintiff’s title might be infected with fraud, still the plaintiff was entitled to recover as against the defendant, he not being the rightful owner of the negro in dispute.
    2d. Because the gift was clearly and fully proved; the testimony being uncontradicted and unimpeached; and it should have been sustained.
    3d. Because the Court permitted the plaintiff’s counsel to ask the witnesses called to impeach the character of Aaron Pruett, what persons they had heard say they would not believe him on his oath.
    4th. Because the verdict was contrary to law and the weight of evidence, and to the opinion of. the presiding Judge.
    
      Thompson and Dawkins, for the motion.
    
      Herndon and Young, contra.
   Curia, per O’Neall, J.

The gift, in my judgment, was fully and clearly proved, and nothing was shown on the part of the plaintiff to avoid it. But as the jury found against my opinion, as they had the right to do, I should not have been disposed to disturb their conclusion, had not a second case, for another slave, between the same parties, on the same .gift, been tried before- me, and another jury of the same district, at the succeeding extra Court. In that case the jury would have found for the defendant, had not the plaintiff, to avoid it, submitted to a- nonsuit. One or the other conclusion upon the facts must be erroneous. Which is right? That may be difficult to say, but still, when the opinion of the Judge below 'is fortified by the opinion of the last jury, it certainly creates such a weight of authority against the verdict in this case, that it ought not to stand.

The motion is granted..

Butler, J., dissented.  