
    *Hansbrough’s Ex’ors v. Thom.
    November, 1831.
    Demurrer to Evidence — Setting Out Evidence — Joinder —Admissions on Record. — It is the settled practice in Virginia, on demurrers to evidence, that the demurrant shall set out the whole evidence, and that the court may compel the other party to join in the demurrer, without requiring the de-murrant to'make a formal admission on the record, of all the inferences of fact which the court may think fairly deducible from the evidence demurred to.
    Same — Effect—Inferences. — By demurring to evidence the demurrant waives all evidence on his own part that conflicts with that of the other party, admits the credit of the evidence demurred to, admits all inferences of fact that maybe fairly deduced from the evidence, but only such facts as are fairly deducible, and refers it to the court to deduce the fair inferences from the evidence.
    Same — English and Virginia Practice — Compared.—The english practice, and that which prevails in Virginia, in respect to demurrers to evidence, compared.
    Slaves — Sale—Evidence of. — In detinue for slaves, the question being whether a contract between plaintiff and defendant’s testator, was a gift or a sale of the slaves by the latter to the former, the defendant demurs to the plaintiff’s evidence: Held, the evidence states facts, from which it may fairly be inferred, that the contract was a sale, though there was no express proof of any valuable consideration paid or stipulated, and that therefore it was a sale.
    This was an action of detinue, brought in the circuit court of Culpeper, by George I. Thom against James and Peter Hans-brough executors of Peter Hansbrough the elder, late of Culpeper, for slaves. The declaration stated, that the slaves had been delivered by the plaintiff to the defendants’ testator in his lifetime, on the 16th September 1822, to be by him re-delivered to the plaintiff when thereto requested, and the failure and refusal of the testator, in his lifetime, and of the defendants, his executors, since his death, to re-deliver them to the plaintiff. The defendants pleaded the general issue.
    At the trial, the defendants’ counsel, after the argument before the jury had been begun and was nearly concluded, offered a demurrer to the evidence, and the plaintiff’s counsel objected that, in that stage of the trial, it was too late to demur; but the court overruled the, objection. Then the defendants’ counsel demurred to the evidence, and the plaintiff’s joined in the demurrer.
    *It appeared from the demurrer, that the plaintiff adduced four witnesses, Massie, Mallory, Nalle and Willis; whose testimony was, in substance, as follows :
    1. Massie testified, that on the third sun-day of September 1822, Peter Hansbrough deceased, called on the witness, and requested him to go with him to the plaintiff Thom’s house, saying he had made an arrangement with Thom to let him have some negroes; the number was mentioned, but that the witness did not remember; the witness Mallory was present, and he probably remembered it. That Hansbrough further said, he was going to Thom’s house to complete the arrangement; and, at the same time, told the witness, that Thom had purchased a tract of land at an unfortunate time, and (as he, Hansbrough, thought at the time the purchase was made) had given too much for it; that he had already assisted Thom, and intended to do more for him, if necessary; that it gave him pleasure to do so, as Thom had been very kind and attentive to him, and had rendered him services; that he had given Thom 3000 dollars; that he had given him a claim upon one Carneal of Kentucky (but the witness did not understand, that that claim was part of the 3000 dollars, nor did he remember that the amount of the claim was mentioned) ; that the 3000 dollars he had given Thom, was to enable him to comply with his unfortunate purchase of land, before alluded to, from one Armistead. The witness went with Hansbrough to Thom’s house, according to his request, but returned without alighting from his horse.
    2. Mallory testified, that, in September 1822, he fell in company with Peter Hans-brough deceased, who, in the course of conversation, informed him, that he was on his way to Fredericksburg, and below. That the witness invited Hansbrough to go home with him, as he lived immediately in his route; which Hansbrough declined, stating as his reason for taking another route, that he Had made arrangements with 'Thom to let him have some slaves, and that there was to be a final close of the arrangement the next *'morning; he mentioned the number of slaves, seventeen. That, in the same conversation, Hansbrough said, that he had great confidence in Thom; that Thom appeared from his habits and management likely to do well; that Thom had rendered him considerable services, for which he had fully compensated him; that he had let Thom have some money that was due him in Kentucky, and had more than compensated his services. That, some two or three weeks after this conversation, as Hansbrough was returning home from the lower country, the witness fell in with him again, and he went home with the witness to breakfast; he then told the witness, he should have come to his house the evening before, but for some business he had with Dr. Waugh, relative to the slaves he had let Thom have, as Dr. W. had hired one of them. That Hansbrough’s residence was some twelve or fourteen miles from Thom’s. That Hansbrough was a man of strong mind, and particular in matters of business ; and both he and Thom were well acquainted with the mode and forms of doing business.
    3. Nalle testified, that, in the spring of 1822, there having been some motions made in the circuit court of Culpeper against Thom as the surety in some forthcoming bonds, Peter Hansbrough deceased observed to the witness, that he had a great regard for Thom, and wished him to do well; he thought him too liberal in becoming surety: upon which the witness observed to Hans-brough, that if Thom should have the money to pay to any of them, he Hans-brough was so wealthy he would not let him lose it: Hansbrough answered, he would like to aid Thom. That, about a month before Hansbrough’s death, in another conversation between him and the witness concerning Thom, Hansbrough said that he had done a good deal for Thom; that Thom had purchased land at an unfortunate time, and that he had aided him in paying for the land. And the witness was induced to believe, from what Hans-brough said in this conversation, though he did not expressly say so, that he intended to pay for the land.
    ⅜4. Willis testified, that, in September 1822, a day or two before Peter Hansbrough deceased set off on his journey below (to the county of King George) the witness had a conversation with Hans-brough, in which Hansbrough observed he had some women and children that rendered him but little service; that, on his way down he should call at Thom’s house, and expected to let him have some of his negroes. That, some time previous to this conversation (it might be two, three, or six montas before), Hansbrough told the witness, he intended selling a parcel of his negroes to Thom; that Thom might pass them off to Armistead, for a debt he owed him; and that he Hansbrough could wait with Thom for the purchase money. That Hansbrough lived twelve or fourteen miles from Thom’s residence. That when Hans-brough went down the country in September 1822, he was absent from home about two weeks; and he was taken sick about three days after his return home, arid died the ISth October 1822. That, in November 1822, Thom shewed the order herein after mentioned to the defendants, and demanded ol them the slaves in the declaration claimed, which they refused to deliver to him. That Hansbrough had four children, Peter (the father of Mrs. Thom) James and William Hansbrough, and Amelia the wife of James Bell; and he had had another son, John, who was dead leaving five children. This witness also proved the values of the slaves claimed in the declaration.
    5. It was admitted by the parties, that the whole number of the deceased Peter Hansbrough’s grand children, was thirty-five; and that he was a very wealthy man, not much in debt; his estate disposed of by his will, was worth from 100,000 to 150,000 dollars.
    6. The plaintiff also gave in evidence the order mentioned by Willis; which was in these words: “Mr. John Henderson will shew and deliver to Col. George Thom, the following negroes, viz: Pompey (he has seen), Moses, Harry, Sarah and her three children with her, Patt, (about the house,) Caroline and her two boys, Sally and her three ’’'children, Linda and her child. And oblige P. Hansbrough. 16th September 1822. ” And it was admitted by the defendants, that this order and the signature thereto, was in the hand writing of Peter Hansbrough deceased; and that John Henderson, to whom the order was addressed, was at its date, and at Hans-brough’s death, his overseer, and had in his custody the slaves in the order mentioned.
    The slaves mentioned in the above order, were the slaves claimed in the declaration. And this was all the evidence in the cause.
    The jury found a verdict for the plaintiff, for the slaves in the declaration claimed, ascertaining the value of them respectively, subject to the opinion of the court upon the demurrer to evidence. The court held that the law upon the demurrer was for the plaintiff, and gave him judgment upon the verdict. And the defendants appealed to this court.
    Leigh for the appellants,
    said, that upon the evidence stated in the demurrer, Thom certainly could not sustain his claim to the slaves in question, upon the ground of a gift made to him by Hansbrough. The statute, 1 Rev. Code, ch. Ill, § 51, p. 432, annulled every gift of slaves, unless the same be made by deed or will, duly proved and recorded, or unless the subject at some time come into the actual possession of, and remain with, the donee or some person claiming under him. Yet, he had little doubt, the judgment of the circuit court proceeded upon the opinion, that here was proof of a gift of slaves to be delivered at a future day, and that the provision of the statute applied not to gifts of that kind, but only to gifts of slaves which, by the terms of the gift, are to be presently delivered to the donee. But this distinction had been exploded by a decision of this court, of which the circuit court, when it decided this cause, was not apprised. Durham v. Dunkly, 6 Rand. 135. Then, the only question was, whether a sale of these slaves by Hansbrough to Thom, could fairly be ^Inferred from the evidence set out in the demurrer? For though, upon a demurrer to evidence, the court may and must presume every fact, which the jury might have inferred from the evidence; yet those conclusions of fact must be such as a jury might from a just and reasonable construction, have made, and not arbitrary inferences or such as might be drawn from a part only of the whole evidence; per Roane, J., in Stephens v. White, 2 Wash. 210, 11. The’ demurrant waives all evidence on his part, that directly or by inference conflicts with the evidence adduced by the other party, and admits all that can reasonably be inferred from his adversary’s evidence; per Green, J., in Whittington v. Christian, 2 Rand. 357. Now, he said, the definition of a sale was, a transmutation of property from one man to another, in consideration of some price or recompense in value; for there is no sale without a recompense; there must be a quid pro quo. And though there be a contract to sell goods for a stipulated price, yet if neither the money or'some part of it be paid, nor the goods or some portion thereof delivered, nor tender made, nor any subsequent agreement entered into, it is no contract, and the owner may dispose of the goods as he pleases. 2 Black. Comm. 446, 8. In the case at bar, there was no evidence of any price or recompense stipulated to be paid or given by Thom to Hansbrough ; not even a pretence of the kind; much less, that any money was actually paid; -and it was certain, that there was no delivery of the slaves, or any of them. Bearing these principles in mind, it would not be a reasonable inference from the evidence, it would be a very strained inference indeed, that here was a sale of these slaves by Hansbrough to Thom.
    Johnson and Stanard for the appellee,
    premised, that a party cannot by demurrer to evidence, withdraw a contested question of fact from the jury, and submit it to the court; that would be to abrogate pro tanto, the trial by jury; the ’ demurrant admits every fact which the jury could find from *the evidence; Green v. Judith, 5 Rand. 1. And then, they said, it was apparent, that Thom claimed these slaves, upon the ground of a sale, not a gift, thereof by Hansbrough to him; that was the question of fact contested between the parties; that the point to which Thqm’s evidence was adduced. And the sale might be fairly inferred from the evidence; or rather nothing but a sale could be inferred from it. Hansbrough, in the first conversation with Willis, told him he intended selling some of his negroes to Thom, and that he could wait with him for the purchase money; and, in the second conversation with that witness, just before the transaction, he told him he intended to let Thom have some of his slaves. He told Massie, he had made an arrangement with Thom, to let him have some negroes, and that he was going to Thom’s to complete the arrangement. He told Mallory, he had made arrangements with Thom, to let him have seventeen slaves, and that there was to be a final close of the arrangement the next morning; and afterwards, that he had been to Dr. Waugh’s on business relative to the slaves he had let Thom have, as Dr. W. had hired one of them. This language was wholly incompatible with the idea of •a,gift, and only to be accounted for upon the supposition that a sale was intended and made. The order of the 16th September 1822 sufficed of itself to shew that a sale had been made: Why else was the property to be shewn to Thom? As to the want of evidence of the price to be paid, that was evidence which would naturally be placed in Hansbrough’s own hands, and (it might fairly be presumed) was in the hands of the defendants, his executors. And Johnson said, he had laboured in Whittington v. Christian, to induce the court to bring back our practice, in relation to demurrers to evidence, to the true, convenient and just practice of the english courts, that of compelling the demurrant to make a distinct admission upon the record, of the facts which the evidence demurred to conduces to prove: it conformed best with the right of jury trial; it was due to the party whose evidence was demurred *to; it was safest for the demurrant himself. If the Virginia practice was to be persisted in, he said, the court upon the argument of the law on a demurrer to evidence, must take the demurrant as admitting all that the evidence conduced to prove; otherwise, these demurrers will be only a device to give the trial of questions of fact to the court.
    
      
       Demurrer to the Evidence — Effect—Inferences.—On this Question., the principal case is cited in Clopton v. Morris, 6 Leigh 290; Rohr v. Davis, 9 Leigh 34; foot-note to Ware v. Stephenson, 10 Leigh 155; Pat-teson v. Ford, 2 Gratt. 28; foot-note to Boyd v. City Savings Bank, 15 Gratt. 501; Union Steamship Co. v. Nottinghams. 17 Gratt. 120; Trout v. Va. & Tenn. R. Co . 23 Gratt. 637, and note', foot-note to R. & D. R. Co. v. Anderson, 31 Gratt. 8)2; R. & D. R. Co. v. Moore. 78 Va. 97; Clark v. R. & D. R. Co., 78 Va. 712; R. & D. R. Co. v. williams. 86 Va. 167, 9 S. E. Rep. 990; N. &W. R. Co. v. Thomas, 90 Va. 206, 17 S. E. Rep. 884; Miller v. Ins. Co.. 12 W. Va. 123; Allen v. Bartlett. 20 W. Va. 52; Hefflebower v. Detrick, 27 W. Va. 21; Peabody Ins. Co. v. wilson, 29 W. Va. 535. 2 S. E. Rep. 892; Mapel v. John, 42 W. Va. 35, 24 S. E. Rep. 610. See monographic note on “Demurrer to the Evidence” appended to Tutt v. Slaughter, 5 Gratt. 364.
    
    
      
       Sales and Gifts — Proof.—The principal case is cited in Miller v. Neff. 33 W. Va. 206. 10 S. E. Rep. 381, to the point that sales and gifts need not be positively proved. They may be inferred from the circumstances. See monographic note on “Gifts” appended to Barker v. Barker, 2 Gratt. 344.
    
   CARR, J.

This case comes before us upon a demurrer to evidence. My general view of the practice with respect to such demurrers, has been given in the case of Green v. Judith, to which I refer. In the case before us, the evidence is all on the side of the plaintiff, and we are to say whether it makes such a case as would authorize a jury, by tfair inference, to say that the slaves for which this action was brought, are the property of the plaintiff? (Here the judge stated the substance of the evidence, and then proceeded.) In my mind the natural, fair, and, I might "say, necessary inference from the evidence is, that Han&brough'sold these slaves to Thom ; and the order to the overseer was such a transfer and delivery, as passed the property, and enabled him to maintain detinue for them. That it was a sale, the whole course of the transaction seems to shew: Hansbrough said nothing about giving Thom the slaves: and if it had not been for the relative situation of the parties, and the wealth of Hansbrough, such an idea could never have arisen. He told one witness, that he meant to sell slaves to Thom; and to others he said, he had made or was making arrangements for letting him have slaves &c. What arrangements could be necessary if he meant to give them? Finally, the order itself imports a sale: “you will show and . deliver &c. ” Why shew them, if Thom was a donee merely? That such an order upon a sale is a transfer of the property, was decided by this court in Pleasants v. Pendleton, 6 Rand. 473, and many cases there cited to shew that it is settled law. I am well satisfied, therefore, that upon this record the plaintiff has a good title to the slaves, and that the judgment must be affirmed.

*CABEEE, J.

I cannot perceive that any inconvenience arises, from the practice in this country, of compelling a joinder in demurrer, without a formal admission on the record, on the part of the demurrant, of all the inferences of fact which the court may conceive to be fairly deducible from the evidence demurred to. On the contrary, I think our practice is. better calculated to effect the purposes of justice, than the practice, said to prevail in England, of compelling the demurrant to make the admissions, before the opposite party is compelled to join in the demurrer. It is the court, according to both practices, that is to determine on the inferences which are fairly deducible from the evidence, and the court can, certainly, perform this function much more correctly, on grave consideration, on the final argument of the demurrer, than in the hurry and bustle of a jury trial. Nor is it any objection to a demurrer to evidence, that the evidence is circumstantial, and even complicated; as will clearly appear from the case of Stephens v. White. In the case before us, the evidence, circumstantial in its nature, was all offered by the plaintiff, and was free from contradiction. If the defendant chose to risk a demurrer I can perceive nothing in the case, to deprive him of the right to do so. Sales and gifts need not be positively proved. They may be inferred from circumstances. And the defendants here, in admitting by their demurrer, the truth of all the facts positively proved by the plaintiff’s witnesses, necessarily left with the court the right to infer from those facts, whatever the jury might have fairly and reasonably inferred from them.

The real question before us is, whether we are to infer a sale or a gift? It seems to be admitted, that the one or the other may be fairly inferred. And I will here take occasion to say, that a demurrer admits only those things which may be fairly inferred. — I am decidedly of opinion, that the just and fair inference from the testimony, is that Hansbrough sold the slaves to Thom, and that he did not give them. It is true, that he regarded Thom with eyes of *favour, and that his object was to aid him in paying for the land which he had bought. But a gift was not the only mode by which that object could be accomplished. Aid might be extended by a sale of slaves, which Thom could readily apply towards discharging his debt; the vendor Hansbrough consenting to take a very low price, or even a full price, on long time of payment. It is in express proof that Hansbrough said, two, three, or six months before the transaction took place, that he intended to sell Thom a parcel of his negroes, and wait with him for the purchase money; and that Thom might apply them to the discharge of his debt. And the testimony exhibits him to the last moment, as engaged in negotiations and arrangements, in relation to these negroes, to which he regarded the concurrence of Thom as necessary. All this is intirely consistent with the idea of a sale, but is utterly incompatible with the idea of a loan or gift. The order, therefore, given to Thom for the slaves, proves, when taken in connexion with the other testimony, a sale and not a gift. I think the judgment should be affirmed.

BROOKE, J., concurred.

TUCKER, P.

Upon the trial of this cause in the circuit court, the defendants by their counsel tendered a demurrer to evidence, which was joined by the counsel for the plaintiff. He objected, it is true, to the court’s permitting the defendants to demur ; but this seems to have been because it was allowed after some progress had been made in the cause before the jury; an objection which according to the case of Hoyle v. Young, 1 Wash. 150, was not tenable. It is not distinctly asserted, that he was compelled to join in the demurrer, and may therefore be considered as having voluntarily done so.

Upon this demurrer to evidence, nothing-appears but the evidence produced by the plaintiff to support the issue joined on his part; and the case is, therefore, freed from *the embarrassment which has arisen, and may often arise, where a variety of testimony is introduced on both sides, and all inserted in the demurrer, in jrarsuance of ohr settled practice in Virginia. But, though the case is disembar-rassed in this regard, it is not without its difficulties, arising out of the exceedingly remote inferences, which it is proposed to draw from the matters set forth in the demurrer. The discussion has given rise to-renewed remarks upon the difference between the english practice and ours, on demurrers to evidence; a subject fully discussed in Green v. Judith, Whittington v. Christian, and other cases. The practice with us is assailed, both as inconvenient, and as trenching upon the unquestioned privileges of the party, to have the facts of his case determined by the jury, instead of their being submitted to the decision of the court. Without meaning to bring these matters into serious discussion, or to compare the relative conveniences of the two modes of proceeding, I shall avail myself of the occasion to make one or two observations.

In the first place, I will remark, that I perceive no essential difference between the english practice and ours, as to the privilege of jury trial. By the former, it is required that the demurrant shall admit every fact, which the evidence of his adversary conduces to prove; Gibson v. Hunter, 2 H. Black. 207. Who is to decide what facts the evidence thus conduces to prove? Not the jury, assuredly, but the court. Id. 209. So with us : the demurrant being held to admit all that the jury could reasonably infer against him from the evidence, and to waive all his own testimony which contradicts that offered against him, and all objections to the credit of the testimony demurred to, the court no more passes upon the credit or the weight of evidence here, than in the english courts. The only difference is, that in England, according to what is said in the cases, the facts which the evidence conduces to prove, are ascertained by the court at the time of the demurrer, and spread upon the record, and thus distinctly admitted by the de-murrant; whereas, in*Virginia, those facts are ascertained by the court at the time of the argument of the demurrer, as fairly inferrible from the testimony of the party, the verity of which his adversary is not permitted to question. Whether the one or the other course is most convenient, seems to be a subject of difference between the most able judges: Compare the opinion of Green, J., in Whittington v. Christian, 2 Rand. 357, with that of Carr, J., in Green v. Judith, 5 Rand. 4. But, I confess that I am upon reflection strongly inclined to think with judge Green, that with the limitations prevailing in our courts, “the party whose evidence is demurred to, has all the benefit of the ancient practice, without subjecting the other party to its inconveniences; and no disputed fact is taken from the jury and referred to the court.” There are, it is true, some difficulties, where there is a variety of facts on both sides, the practice in reference to which yet remains to be settled. With those I shall not meddle here.

I remark, next, that, notwithstanding the position that the demurrant must admit upon the record, the facts which the evidence conduces to prove; and notwithstanding the observation of lord chief justice Eyre in Gibson v. Hunter, that the court is to regulate the admissions which are to be made upon the record; yet the demurrer to evidence in that case, set forth, as we do, the evidence at length, and not the facts it was supposed to prove. And though it is true the court decided “that the examination of witnesses had been conducted so loosely, or the demurrer been so irregularly framed, that there was no manner of certainty in the state of facts, upon which judgment could be founded,” and moreover declared that the defendant could not compel the plaintiff to join in demurrer, “unless he distinctly admitted upon the record, every fact and every conclusion which the evidence given for the plaintiff conduced to prove;” yet this rule does not appear to have been rigorously followed in other cases, even in England. Por, in Cocksedge v. Fanshaw, Doug. 119, long anteriour to Gibson v. Hunter, the demurrer was framed precisely like our own; as *will appear from the note to Gibson v. Hunter, 2 H. Black. See too, 2 Plow. 1, and Tidd’s prac. forms 325. I doubt not, our practice has been taken from that case, decided in the court of king’s bench by Mansfield and Buller. Be this as it may,- our reports, from Pendleton’s time to the present day, bear recorded evidence of the uniformity of the practice in Virginia, of inserting the evidence in the demurrer, putting no admissions upon the record, and leaving the inferences from the evidence, to the court, as is now customary in our tribunals. In all our courts (and there are more than two hundred of them) this is the received practice. It would be pregnant with mischief to attempt to change it judicially. On the faith of the decisions of this court, parties litigant have acted, and are perhaps at this moment acting. It is one of those matters of practice which goes to the very right of the parties, and not to form merely; and he who has rested his case upon a demurrer drawn according to the established practice of our courts, may lose his estate through faith in our adjudications, if we should now unexpectedly alter the course of them.

Eastly, I will observe, before I proceed to pronounce on the particular case before us, that I think the expression, “that the de-murrant must admit, or is considered as admitting, every fact which the evidence may conduce to prove,” must not be understood too broadly. The language of this court is more appropriate; “that the de-murrant must be considered as admitting all that could reasonably be inferred by a jury from the evidence given against him.” Eor evidence may conduce, that is, tend or contribute towards the proof of a fact, which it is very far from establishing, and which could not be fairly inferred from it. Thus, in the present case: the order from Hansbrough to his overseer to shew and deliver the slaves to Thom, is one link, and a very important one, in the chain of proof to establish the fact of a sale by the former to the latter; and, in this sense, it may very truly be said to conduce to prove a sale. But, surely, from that fact alone, no jury or court could be justified *in inferring a sale, which is a transaction complicated of various facts, such as the transfer of the property by the vendor, and the actual delivery of the possession to, and the payment of a consideration by, the vendee.

What then, is the case under consideration? It is a case in which, according to my conception, nothing can be inferred in favour of the plaintiff, except that Hans-brough had made him a present of the slaves from motives of regard. So strong, indeed, is this evidence — -evidence too introduced by the plaintiff himself — -that I have not the slightest doubt he went for a gift upon the trial of the cause, and that the judgment of the court proceeded upon the sufficiency of the evidence to establish such gift. On no other principle, can we account for his introducing this sort of evidence, instead of that of agreed price. The circuit court was not apprised of the decision in Durham v. Dunkly, 6 Rand. 135, and it is very possible, that very decision has induced the appellee to shift his battery, and go for a sale, as he now finds he cannot sustain his title as a gift. Be this as it may, there is nothing which, to my mind, can justify the inference that there was a sale. A sale implies a contract, for a valuable consideration. The case, as it is presented, affords no foundation, on which to rest even a violent presumption, that there was a consideration paid, contracted to be paid, or contemplated by the parties. Had there been such a consideration, the evidence would lead us very fairly to infer that we should have heard of it, through the witnesses, from the communicative old man. But his design was to aid his grandson, not to traffic with him. He meant to relieve him by paying his debt, not by shifting his burden. The only instance of his speaking of selling the slaves, occurred -some months before; while all his recent conversations pointed to an act of benevolence from a rich old man to a favourite kinsman. The whole testimony, indeed, conduces, that is, leads or tends, to prove that a gift was intended and not a sale. X am, therefore, of opinion, that the judgment ought to be reversed. But the opinion of the court is that it be affirmed.  