
    *Slaughter’s Adm’r v. Tutt.
    March, 1841,
    Richmond.
    (Absent Stanaud, J.)
    Parol Gift of Slaves — Evidence—Case at Bar. — In tro-ver against adm’r of plaintiff’s father, plaintiff claims title to slaves under a parol gift from his father, and possession under the alleged gift; there is no direct proof of the gift, but only proof of such a temporary possession held by the plaintiff, as may as well be referred to a loan as to a gift from the father, and, under the circumstances, more probably referrible to a loan than to a gift: Held, this proof is insufficient to maintain the title.
    Bills of Exception — Motion for New Trial — Rule of Decision When Facts Certified. — In a bill of exceptions to a judgment of a court overruling a motion for a new trial, the facts proved at the trial are stated and certified by the court; upon appeal from the judgment, it appears that the verdict is an erroneous inference from the facts stated: therefore, judgment reversed, and a new trial awarded.
    Same — Same—Same.—And where the facts proved at the trial, are stated and certified by the court that tried the cause, and the question is whether the verdict conforms with the facts stated, and there is no question as to the weight or credit of evidence, the appellate court should judge of the correctness of the verdict upon the facts stated, uninfluenced by the opinion of the jury, or of the court that sanctioned the verdict; Tucker, P., paulo dissentiente.
    Trover for six slaves, brought in the circuit superior court of Culpeper, by Tutt against Slaughter, who died pending the action, and it was revived against his administrator. Plea, the general issue. The jury having found a verdict for the plaintiff for 1500 dollars damages, the defendant moved for a new trial; the court overruled the motion; and the defendant filed a bill of exceptions, in which it was stated, and certified by the court, that the following “were all the facts established by the evidence:”
    That the plaintiff claimed the slaves under a parol gift from his father, now deceased, of whom Slaughter the original defendant was the administrator.
    *That in 1816 or 1817, the plaintiff, then a very young man, who had been previously living with his father, removed to a place in Culpeper about fifteen miles from his father’s residence, and there set up a blacksmith’s shop (not being, however, a blacksmith himself); in which a negro man slave, named Moses, worked as a smith, and his wife Mirny, and one little negro girl, then their only child, lived there with him. These slaves had been previously the property of the plaintiff’s father: there was no evidence to show on what terms they went to the plaintiff’s residence: only the fact that they did go thither, appeared. The blacksmith’s shop was continued about a year, and then broken up; upon which the slaves, Moses and his wife and child, were returned to the residence of the plaintiff’s father, who had a large farm, and many slaves upon it: there, Moses worked in a blacksmith’s shop, and his family lived on the farm with the rest of the father’s slaves. The plaintiff went over the Blue Ridge, and lived a short time, but whether this was before or after he opened his blacksmith’s shop, did not distinctly appear: however, he returned to his father’s house, to reside with him, about the same time the slave Moses and his family returned: and, thenceforth, till the father’s death, Moses and his family continued at the father’s residence, and the plaintiff resided there, superintending his father’s business.
    In November 1827, the father executed two bonds for debts of his own, in which the plaintiff joined as his surety; and the fa’■.her, by deed of trust dated the same day, conveyed the slaves Moses and Mimy and all the increase they then had to a trustee, for the purpose of indemnifying the plaintiff against loss by reason of his surety-ship. It was not expressly stated in the bill of exceptions, that the plaintiff had notice of the execution of that deed of trust at the time; but it was stated, that he afterwards told the trustee (a near neigh-bour an intimate acquaintance of the family) that he wished and 'x'boped to borrow money to pay the debts, and then to have the slaves sold tinder the deed of trust, and to buy them himself: he never, during his father’s life, told the trustee that he had any claim to the slaves: and both the trustee and another witness (the father’s next neighbour) always considered Moses and his family, from the time of their return from the plaintiff’s blacksmith’s shop as abovementioned, as constancy in the father’s possession, and his property.; nor did they ever know the plaintiff to claim them during his father’s life, though they heard from others of such a claim, some two or three years before the father’s death.
    In February 1830, the coroner of Cul-peper went to the father’s house, with an execution against him to a large amount, which he intended to levy on slaves; when the plaintiff said, the execution should not be levied on the slaves that belonged to him, but without naming the slaves he claimed as belonging to him; and the father, hearing this, said there was enough of other property to levy it on. The execution was levied on slaves, but not on Moses or his wife or their children.
    Until 1830, all the slaves on the father’s farm, including Moses and his family, had been given in, to the commissioner of the revenue, in the father’s name, sometimes by himself, and sometimes by the plaintiff, to whom he referred the commissioner; but when the commissioner came to take the list of taxable property in 1830, the father told him that all the property had theretofore been listed in his name, but it must now be separated, and 1 ‘the boys” (meaning his sons) must give in their own property in their own names: he did not say what property was his, or what belonged to “the boys,” nor did any one else tell the commissioner: but a change w'as made in the mode of entering the property; and in 1830, which was the first year the plaintiff was charged with taxable property, he was charged with two black tithables (two slaves above the age of sixteen) and “'three slaves between the ages of twelve and sixteen. It was not shewn, that the plaintiff had or claimed any other slaves, but those above mentioned, and a negro girl which had been given him by his wife’s father.
    A witness (a dealer in slaves) proved, that he had frequently, within ten or twelve years before the trial, and down to twelve or eighteen months before the death of Tutt the father, told him, that a negro blacksmith might be sold very well, and either asked him whether he had such a slave to sell, or suggested to him that he might make such a sale; to which he always replied, that he had none such, but that his son, the plaintiff, had a blacksmith, the man Moses, and his family, which he might sell if he pleased; and the witness applied to the plaintiff to purchase these slaves, who declined to sell them.
    Tutt, the father, was a widower. Tutt, the plaintiff, took a wife in 1828, and brought her to his father’s house, where they lived with him till his death, deriving their subsistence from his estate; but they lived there only by the father’s courtesy: the plaintiff attended to his father’s business, who reposed great confidence in him, and his wife officiated as housekeeper.
    Mimy, the wife of Moses, died in the lifetime of Tutt, the father; and Moses and six children of Mimy, being found on the father’s farm at bis death, were inventoried and appraised as part of the father’s estate, and then sold by his administrator Slaughter, the original defendant in this action, though the plaintiff forbade the sale.
    Tutt, the father, though once in affluant circumstances, so that in 1817 the slaves Moses and his wife and child were a reasonable advancement to his son the plaintiff, had become much embarrassed before his death, and died insolvent.
    The slave Moses had been recovered by the plaintiff in an action of detinue against Slaughter in his lifetime; “and the present action was brought to recover the value of Mirny’s six children, which had been sold by Slaughter, as administrator of Tutt the father, in October 1832, for 1200 dollars, which sum with interest was what the plaintiff claimed in this action.
    And “these being the facts and all the facts in the case,” the court overruled the defendant’s motion for a new trial, and gave the plaintiff judgment for the damages found by the jury.
    The defendant applied to this court for a supersedeas to the judgment; which was allowed.
    Beigh, for plaintiff in error,
    said, that upon the facts stated, the verdict was plainly against law. Tutt claimed title to the slaves in question, under a parol gift of his father: and to maintain such a title, there must be proof, in the first place, that the father made such a gift to the son; and then, that the slaves so given came at some time into the actual possession of, and remained with, the donee or some person claiming- under him. 1 Rev. Code, ch. Ill, § 51, p. 432. Now, in this case, there was no proof whatever of any gift made by the father to the son, to which the possession of the son, even if possession had been proved, could be referred; and, allowing the utmost latitude of inference from the proofs of the son’s possession, set out in the bill of exceptions, it was impossible to infer such an actual and abiding possession in the donee, as the statute required to support a parol gift of slaves. To sustain the judgment of the circuit superior court, this court must not only infer the fact of the parol gift of the father from the mere fact of the son’s possession, but it must infer the fact of the son’s possession from facts altogether equivocal and inconclusive. The son, it seemed, rested his claim on an alleged gift of his father made in 1816 or 1817, when he left his father’s house, set up his blacksmith’s' shop fifteen miles off, and carried the slaves Moses and his *wife and child with him; but the slaves remained in his possession only one year, and were then returned, and thenceforth remained in the father’s possession tilltiis death in 1832; and in 1827, the father exercised complete ownership over them, and his right to them was acknowledged by the son; for he mortgaged the slaves to the son, to indemnify him against a suretyship the son had incurred for him, and the son declared his purpose to acquire the slaves under the mortgage. That transaction was a complete refutation of any gift prior to its date. Was any gift made subsequently to that date? Certainly, no direct proof of such gift was adduced. Did the son ever acquire the possession subsequently to 1827? The possession continued without change or interruption in the father till his death. As to the conversations stated to have occurred in 1830, between the coroner, Tutt the son, and Tutt the father, concerning the levying of the execution, between the father and the commissioner of the revenue in the same year, and between the negro-dealer and the father; he said, these proofs were too vague to warrant the inference of an actual gift by the father to the son, even of the slaves Moses and his wife Mimy, much more a gift of their six children. But if the gift could possibly be inferred from the facts, still proof of the actual possession of the donee under the gift, was wanting; and without such possession, the gift was invalid.
    Patton, for the defendant in error,
    contended, that the parol gift under which he claimed, and his possession under the gift, were fairly inferrible from the facts proved at the trial. This was not a controversy between the creditors of the donor and the donee, but between the donee and the administrator of the donor: neither the donor nor his representative could avail himself of any such want of formality in the gift, or the want of such a change in the posssession visible to the world, as might render the transaction void as against the donor’s *creditors. The question was, whether there was a valid gift of the slaves as between the parties? Tutt the father made a simple unqualified delivery to Tutt the son, of the slaves Moses and his wife and child, in 1816 or 1817; and this was a perfectly reasonable advancement from the father to the son: the son removed the slaves to a distance, and employed and held them in his service, till it suited his purposes or his pleasure, to break up his blacksmith’s shop, and to abandon his new residence. This, he argued, was proof enough of the original gift, accompanied by possession in the donee, and therefore complete. It was true, the slaves were afterwards returned, not however to the father, but to the father’s residence, and lived on the father’s farm; but then it was to be considered, that the son returned to the father’s house about the same time, and he also resided there, having the superintendence of all the slaves on the farm, including the slaves in question. His control over the slaves which were the property of his father, was exercised as his father’s agent; but his control over the slaves in question, which were his own property, was referrible to his own rights, and was a continuance of his possession. When a father and son live together on the same farm, and both have slaves on the farm, it was most reasonable, that the possession of each parcel of slaves should be regarded as following the rights of the respective parties. As to the circumstance of the father’s making the deed of trust in 1827, whereby he conveyed these slaves to a trustee for the indemnification of the son against the suretyshio he had incurred for the father’s debt; that could not be regarded as a waiver by the son of his rights under the previous gift of the father, or as an acknowledgment of the father’s right of property in the slaves; for it did not appear that the son was apprised of the execution of the deed of trust at the time; and his subsequent wish to purchase the slaves under the deed of trust, might be *fairly attributed to his wish to avoid an unpleasant controversy with his father. That Tutt, the father, did not, at the time he executed that deed, or even afterwards, claim any right in or control over the slaves in question, that, on the contrary, he acknowledged the absolute right of Tutt the son to them as his own property, was, he said, proved b'eyond question, by his admission in 1830, that these slaves (for there were no others that could have been referred to) were not liable to executions for his debts; by his insisting, that they should be listed on the books of the commissioner of the revenue as the son’s property, so that he should pay the taxes upon them, and the charging of them to the son accordingly; and by the father’s declaration, frequently repeated in the course of several years, that he had no such slaves as these to sell, but that his son had a blacksmith, “the man Moses, and his family,” which he might sell, if he pleased. Royston & wife v. Hankey, 3 Moore & Scott, 381; 30 Eng. C. I/. R. 308. It was a material circumstance, that Tutt, the son, had recovered the slave Moses in an action of detinue against Slaughter in his lifetime, upon the same title, upon which he now claimed the value of the six children of Moses: that recovery ought to conclude the question here. Shelton v. Barbour, 2 Wash. 64.
    But supposing the question of title more doubtful than it was, yet, he said, the verdict of the jury ought not to be disturbed. This was a motion for a new trial on the ground that the verdict was against evidence ; and it was well settled, that, in such a case, a new trial ought to be granted only where the verdict is a plain deviation from right and justice; never in a doubtful case, merely because the court, if of the jury, would have given a different verdict; per Roane, J., in Ross v. Overton, 3 Call 319; Brugh v. Shanks, S Leigh 598; Mays v. Callison, 6 Leigh 230; Brown v. Hund-ley, 7 Leigh 119; Mahon ' v. Johnston, Id. 317.
    'x'Leigh, in the reply,
    insisted, that the verdict here was a -plain deviation from right and justice. But, he said, the question was, whether it was not against law? whether, upon the facts stated in the bill of exceptions, and certified by the court as the facts established by the evidence at the trial, the jury was warranted in inferring a gift, valid in law, by the father to the son, of the slaves in question? He said, it had been well understood, since the case of Bennett v. Hardaway, 6 Munf. 125, that appeals from judgments overruling motions for a new trial, could never present any question of fact) properly so called) to this court; any question as to the weight of evidence, or the credit of witnesses, which the jury, and the court that tried the cause, could judge of better than an appellate court. If the court that tried the cause should overrule the motion for a new trial, its duty was to state and certify the facts, which, in its opinion, were proved at the trial; and then the question in this court, upon an appeal from the judgment, was, whether the jury, in their verdict, drew improper, or failed to draw proper, inferences from the facts proved? And this has been regarded here as a question of law, upon which this court has exactly the same materials for forming a correct judgment as the court below had. He cited Carrington v. Bennett, 1 Leigh 340; Ewing v. Ewing, 2 Leigh 337; Eisher v. Vanmeter, 9 Leigh 18; Rohr v. Davis, Id. 30.
    
      
      He had been counsel in the cause.
    
    
      
      Gifts — Necessity of Delivery. — See foot-notes to Miller v. Jeffress, 4 Gratt. 472; Tutt v. Slaughters Gratt. 364. The principal case is cited in Miller v. Neff, 33 W. Va. 206, 10 S. E. Rep. 381; Thomas v. Lewis, 89 Va. 82, 15 S. E. Rep. 389. See generally, monographic note on “Gifts” appended to Barker v. Barker, 2 Gratt. 344. Tutt v. Slaughter, 5 Gratt. 364, is the sequel to the principal case.
    
    
      
       Bills of Exception — Motion for New Trial — Rule of Decision Where Facts Certified. — where, in a bill of exceptions to the decision of the lower court upon a motion for a new trial, the facts proved at trial are stated and certified, and not the evidence merely, the appellate court, without regarding the opinion of the jury and the inferior court, will proceed to judge for itself originally, and determine whether the proper inferences and conclusions were made and drawn from the facts. In support of this proposition, see the principal case cited in Vaiden v. Com., 12 Gratt. 727; Harrison v. Farmers’ Bank, 6 W. Va. 8; Gillilan v. Ludington, 6 W. Va. 143.
      But in Richmond, Fred. & Pot. R. R. Co. v. Snead, 19 Gratt. 364, the court said: “It is not necessary therefore to say any thing in reference to the case of Slaughter's Adm'r v. Tutt, 12 Leigh 147, which was cited in the argument by the counsel for the railroad company, to show that as the facts proved, and not the evidence merely, has been certified, we ought to draw our own conclusions from them, uninfluenced by the opinion of the jury or of the circuit court. That case, however, admits, that when the facts proved do not establish the fact necessary to a just conclusion, but such further fact is to be inferred from the facts proved, and the facts proved leave it uncertain whether such further fact can or cannot be fairly inferred, respect ought to be paid by the appellate court to the verdict and judgment in the court below.” The principal case is cited in Hilb v. Peyton, 22 Gratt. 568; Vaiden v. Com., 12 Gratt. 728. See footnote to Fisher v. Vanmeter, 9 Leigh 18.
      Same — Rule of Decision When Evidence Certified. — On the other hand, the principal case is cited in State v. Flanagan, 26 W. Va. 120, for the proposition that, where the evidence, and not the facts, is certified, the appellate court will review the opinion of the trial court granting or refusing a new trial on the ground that the verdict is contrary to the evidence, whenever the court by excluding all the conflicting parol evidence of the exceptor, and by giving full faith and credit to all the evidence of the adverse party, can see that the verdict is plainly contrary to the evidence. See foot-note to Vaiden v. Com., 12 Gratt. 717. See monographic note on “Bills of Exception” appended to Stoneman v. Com., 25 Gratt. 887.
      Review on Appeal — Matters of Discretion. — As to when matters of discretion decided by the court below, will be reviewed by an appellate court, see the principal case cited in Welch v. County Court, 29 W. Va. 69, 1 S. E. Rep. 341.
    
   ALLEN, J.

Upon the facts stated in the bill of exceptions, and certified by the court as all the facts proved at the trial, it seems to me, that the court erred in overruling the motion for a new trial. A gift of slaves, to be valid, must either be by deed or will properly proved and recorded, or else the possession must have passed from the donor to the donee, and remained with the donee or some person claiming under him.

*The first fact relied upon to establish the gift is, that in 1816 or 1817, Tutt the son, then a very young man, removed to a place in the same county, about fifteen miles from his father’s house, and opened a blacksmith’s shop, in which the slave Moses worked as a smith; the wife of the negro and one child were with him. They remained about a year, when the shop was broken up, and the negroes returned to the farm of Tutt the father. There was no-evidence to shew the terms on which the son held the negroes during this period; the fact alone appeared, that they were in his possession, as stated. Would this proof, standing alone, justify the inference of a gift, and delivery of possession consummating it? It does not strike me as being sufficient. It was remarked by Judge Tucker in the case of Mahon v. Johnston, that “where the gift is without value received, it is but reasonable, that the party who is to be deprived of his property without an equivalent, should be clearly proved to have actually parted with it. This can never be done, where the evidence to establish the gift is altogether equivocal; and such is always the case with mere evidence of possession in a transaction between a father and a child; such possession being equally consistent with the idea of a loan or gift, and both loans and gifts, under such circumstances, being common, the fact of possession does not prove much.” These remarks seem to me to be sound, and that much mischief might ensue, if it were ever to be established that the mere possession by a child of a slave theretofore belonging to the father, should afford sufficient evidence of a gift. The act is equivocal of itself, and unconnected with other circumstances it proves nothing; it is every day’s practice for the parent to permit the child to hold possession of a slave for his accommodation, without intending to part with the property, or deprive himself of the power to dispose of it according to his own pleasure, when he comes to distribute his estate.

*The circumstances attending the transaction in this case, would rather lead to the inference of a loan than a gift. The son was a very young man, and unmarried. It does not appear, that he returned immediately to his father’s house on the breaking up of his shop; he crossed the mountains, it appeared, and lived some time there, and then returned to his father’s; but whether this was before or after opening the shop did not distinctly appear. But, as it did appear he was very young when he opened the shop, the inference is strong, that it was on abandoning the business that he crossed the mountains. The whole seems to have been an experiment by a young man, in which the father aided him, probably with the intention of giving him the slaves, if it turned out successful; but there is nothing to warrant the inference of a gift at the time.

The slaves returned to the father’s plantation, which was large, and on which there were many slaves. The son also returned, and managed for the father. To-all appearance, the slaves in question were as much the slaves of the father as the other .slaves on the plantation. And in November 1827, the father executed two bonds to a creditor, in which the son joined as a surety ; and on the same day, the father executed a deed of trust of the slaves in question, to indemnify the son against loss as his surety. The son afterwards told the trustee, that he hoped to borrow money to pay the debts, to have the slaves sold, and buy them himself. He did not, to the trustee, a near neighbour and friend, set any claim to the slaves. If the father had executed a deed of trust on the slaves to secure the creditors, the circumstance might not have had much influence: the son, though asserting a claim, might have consented to the slaves being pledged to secure a debt for which he himself had become responsible. But that is not this case. The deed was given for his own indemnification. He could not then have asserted a claim to the negroes by virtue *of any supposed donation in 1816 or 1817; for he would, in that case, have taken a deed of trust of his own property to secure himself. It is not expressly stated, that he knew of the deed; but he was then living with his. father, and the deed is stated to bear date on the same day he became surety in the bonds. And whether apprized of the execution of the deed at the time or not, he knew of it afterwards and before the debt was satisfied, and expressed a hope of being able to borrow the money to pay the debts, and an intention to purchase at the sale under the deed of trust. The execution of the deed of trust, and the conduct of the son in regard to it, are decisive against any right as growing out of the short possession held by him in 1816 or 1817. He must rely exclusively on the subsequent transactions.

Is there any fact certified, which proves, or from which the jury could fairly have inferred, a valid gift? In 1830, an officer went to the house of the father to levy an execution against him to a large amount. The son observed, it should not be levied on the slaves belonging to him, but did not name the slaves. The father, hearing this, said there was enough of other property. Prior to 1830, all the slaves had been given in, to the commissioner of the revenue, in the father’s name, sometimes by the father, sometimes by the son: in that year, the father told the commissioner, that the property had theretofore been listed in his name, but it must now be separated, and “the boys” must give in their own property. He did not, nor did any one else, say what was his, or what belonged to “the boysbut a change was made, and the son was charged with some slaves. A witness had frequently, for the last ten or twelve years before the trial, suggested to the father that a blacksmith would sell well, and asked whether he had such slave to sell, or suggested he might make such a sale; to which the father replied he had none, but that the plaintiff had a blacksmith, a man Moses, and his family, *which he might sell if he pleased. These are all the facts bearing directly on the question of the gift after the deed of trust. And taking them most favourably for the son, it seems to me, we cannot construe them as amounting to a gift, without overturning the well settled principles of law. To the validity of such a gift, possession is essential. This possession should not be colourable, but real. The possession of the donor, in the words of Judge Carr, in Durham v. Dunlsly, 6 Rand. 141, should be broken up. According to the facts of this case, there was, subsequent to the deed of trust, no such actual change of possession. To the world, the slaves continued in the situation they had remained in for years before. There was nothing to distinguish them from the other slaves on the father’s farm. The father still remained the visible owner. The possession remained unchanged. It is then unnecessary to enquire, whether, if there had been proof of a subsequent change of possession, the facts would establish a gift. Ror unless the donee has obtained possession, no proof of an intention to give, or of declarations that a gift had been made, would suffice.

It was argued, that as the jury and court below have, upon these facts, decided in favor of the plaintiff below, the deviation should be gross and palpable, before this court should interfere with the verdict: and Ross v. Overton, Brugh v. Shanks, and Mays v. Callison, are cited. Ross v. Overton, the leading case on this subject, and referred to in all the subsequent cases as giving the rule, was decided before the case of Bennett v. Hardaway, in which this court established the rule, since rigidl3r adhered to, except in one or two instances not affecting the principle, that a bill of exceptions to a judgment overruling a motion for a new trial, ought not to state the evidence, but the facts appearing to the court to have been proved. The grounds upon which this rule was established are familiar. “The appellate *'court (it is said), sees the evidence on record only; and on paper the credit of every witness, not positively impeached, is the same.” The inferior court, “while it can faithfully transmit to this the actual words spoken by the witness, can give it in no fac simile of the manner” of the witnesses. It is further stated to be an important principle, that the revising court should have the same lights, and act on the same data, as the court below; and that where this advantage is wanting in the appellate court, the judgment of the court below will preponderate. These remarks of Judge Roane in Bennett v. Hardaway, are unanswerable, when confined to the subject to which he applied them. He was discussing the. propriety of the appellate court’s reviewing the verdict and judgment of the trying court, upon the evidence as given before the jurjr. But I do not perceive their force, or the application of the principle laid down in Ross v. Overton, when the facts, and not the evidence, are certified. Amd I incline to think they were relied on in the case of Brugh v. Shanks, and other cases since the case of Bennett v. Hardaway, without sufficiently adverting to the change which that case has made. Thus, Judge Carr, ,in Brugh v. Shanks, after quoting the decision in Ross v. Overton, observes, “These remarks are applied to the court which presides at the trial, and has all the advantages (possessed by the jury) of seeing and hearing the witnesses: how much more strongly do they apply to the appellate court, deprived of these all important aids in eviscerating truth?” But when the facts are certified, this court has nothing to do with the credit of the witnesses. The truth has been eviscerated for it. The appellate court acts upon an admitted state of facts; it takes them as the conceded facts, upon which the court and jury have proceeded; and so taking them, what is to prevent it from arriving at a correct conclusion? Having all the facts, the question is, whether the court and jury drew a correct conclusion from them? *And what better opportunity is possessed by the court and jury, than the revising court? Their opportunities of deciding whether facts are or are not established by the evidence, are certainly far superior. But having advanced that far, and arrived at the facts, the conclusion of law upon the facts may as well be drawn by the revising as the inferior court. This, it seems to me, is the fair construction of the case of Bennett v. Hardaway. The important principle is, that the revising court should have the same lights, and act upon the same data, as the inferior court. And therefore Judge Roane held it improper to set out the evidence in the bill of exceptions. But when the facts are stated, he observes, “the appellate court does not in that case depart from or overrule the decision of the trying court, as to the weight of testimony, or the credit due to any witness. It only acts upon his own certificate and acknowledgment of his opinion upon the subject.” A bill of exceptions setting out the facts, he observes, “briefly states them, as they appeared to the judge, and are admitted by him to have been proved; and, in consequence of such his admission, the appellate court founds its decision upon the same facts as those which governed the court below.” If the appellate court has the same lights and proceeds upon the same data, as the jury and the trying court, there would seem to be no sufficient reason why it should not draw its own conclusions, uninfluenced by the judgment and verdict.

A different practice is calculated to do injustice. The exceptor is compelled to take the certificate of facts from the tribunal which has pronounced against him. With every disposition to do equal justice, it is the natural tendency of the human mind to give prominence, and sometimes imperceptibly to attach undue importance, to evidence which has influenced its own decision. And if, upon the facts so certified, the party is to be met in the appellate court with every presumption against him, *the right to appeal from the decision overruling the motion for a new trial, becomes but a mockery.

This view is supported by the decision of this court in Carrington v. Bennett. That was an action on a bond, to which the de-fence of gaming was set up. A doubt arose whether the bill of exceptions set out the evidence, or the facts proved; a majority of the court considered it as setting out the facts proved. There was no direct proof that the bond was given on a gaming consideration. And Judge Carr, after citing Bennett v. Hardaway, said, “that the appellate court must act on the facts stated, as upon a special verdict, and is to infer or imply nothing:” that the evidence went strongly to shew that the bond was for a gaming debt; but that the jury had said otherwise, and the court agreed with them; that they both heard the witness, and their decision must have been governed by the credit given to him. The other judges differed. Judge Green observed, that “in a case where there was no direct evidence to prove the fact in issue, but only proof of other facts from which the matter in issue might or might not be inferred; if the court, instead of stating the proved facts, from which such an inference might arise, were required to state its own inference, this would be, not to state the fact or facts proved, but the judgment of the court as to their effect; and there would be nothing for the appellate court to decide upon. Yet the jury and the court below may err as essentially, and as fatally to the rights of the parties, in their inferences of other facts from the admitted facts, as in respect to the law arising from the facts proved.” The opinion of Judge Coalter was to the same effect. And the court in that case, from the proved facts, inferred the fact that the bond was given for the gaming debt, contrary to the finding of the jury and the judgment of the trying court: thereby, in effect, determining, that with the facts before it, it must pronounce its own judgment *upon them; that having the same lights it must deduce its own inferences. If the facts proved did not establish the fact necessary to a just conclusion, but such further fact was to be inferred from the facts proved, and those facts left it entirely uncertain whether the further fact could fairly be inferred; there, I think, respect should be paid to the verdict and judgment of the trying court, because a fair presumption might arise, that the fact necessary to warrant or repel the inference, had been omitted in the certificate of facts ; and because that should be held as rightly determined which the facts did not shew to be wrong.

I am of opinion, that upon the facts stated, we have all the power and authority of the jury and court below, and that the facts stated do not warrant the verdict in this case. I think the judgment should be reversed and a new trial awarded.

CABELL and BROOKE, J., concurred.

TUCKER, P.

Concurring as I do in the opinion just delivered by my brother Allen, that the verdict in this case is unsupported by the facts certified by the court, and that the ‘judgment should be reversed and a new trial awarded, I think it proper to say, that I cannot altogether acquiesce in his views as to the principles which should govern this appellate tribunal on questions of new trial, where the jury and the inferior court have concurred in their opinions against the party asking it. There is, perhaps, after all, but a shade of difference; but I deem it right, until we can have a full court to settle the question, to prevent the conclusion which might be drawn from my silence, that I yield entire concurrence in the opinions which have been expressed.

Where the facts certified to this court under the rule established in Bennett v. Hardaway, present but a naked question of law, there seems to be no difference of opinion. *In such a case, this court would not be influenced by the opinion of the jury or inferior court as to the law of the case, and would grant a new trial or not, according to its own opinion of the law arising upon the facts stated. Fisher v. Vanmeter, cited at the bar, rests on this principle. But it sometimes happens, that from the fact^ stated, some other fact must be inferred, in order to make out the case of thepartj'. As in trover, though the conversion may not in terms be proved, yet facts may be proved from which the jury may have inferred a conversion. So, in Carrington v. Bennett, gaming was not distinctly proved to be the consideration of the contract, yet from the facts stated, the jury might have inferred it. And so in this case of a gift. Racts are here proved, from which the jury doubtless inferred a gift; and the only question is as to the correctness of this inference. Indeed, in all these cases, the question presents itself, not whether the verdict is right in point of law, but whether the jury have fairly inferred the issue, or main fact in the cause, from the facts which have been actually proved with a view to establish it. Where such a case presents itself, my brethren seem to think, that little weight is to be attributed to the opinions of the court and jury, though they admit that they would lean in favor of the verdict, if they felt doubts, upon their own minds in relation to the propriety of the inference to be drawn. On the other hand, it seems to me, that although the decision in Bennett v. Hardaway removes one great difficulty, by substituting a certificate of the facts, for a certificate of the -evidence, it is still reasonable to presume, that the jury and the trying court may often have superior means of arriving at a correct inference from the facts found, arising out of incidents at the trial which may be omitted, or could not easily be committed to the court’s certificate. The prevarication of an unwilling witness might lead the jury, who heard him, to *draw stronger inferences from the facts extorted from him, than this court might be disposed to draw from the naked fact appearing upon the record. I therefore think, that the true rule still is, that where the jury and the court below concur, this court should not grant a new trial upon the ground that false inferences have been drawn from the facts found, “unless in a cáse of plain deviation, and not in a doubtful one, merely because the court, if of the jury, would have given a different verdict.”

Judgment reversed, and cause sent back for a new trial.  