
    *Mahon v. Johnston.
    March, 1836,
    Richmond.
    (Absent Brooke, J.)
    Verdict — Contrary to Evidence — When Set Aside. — A verdict should not be set aside as contrary to evidence, unless it be plainly so.
    New Trials — Refusal—Case at Bar. — A. residing- in Tennessee, delivers a female slave to his son in law B. who is about to remove to Virginia, and takes from him a deed, specifying that the slave was lent to B. who was to take good care of her, and deliver her to A. when he should demand her: A. tells the subscribing witness, that the deed is taken to shew that the slave is his property, in case she should be taken by B.’a creditors while she remained in Tennessee, but that “he intended to give her to B. any how;” B. removes with the slave to Virginia — In detinue by A. against B.'s mortgagee of the slave, who has possession, the jury iind a verdict for plaintiff, and the court refuses to grant a new trial: Head, the new trial was properly refused.
    Detinue for a female slave, brought by Johnston against Mahon, in the circuit court of Greenbrier.- Plea, non detinet. The jury having found a verdict for the plaintiff, the defendant moved the court to set it aside and direct a new trial, on the ground that it was contrary to evidence. The court overruled the motion, and the defendant filed a bill of exceptions, from which it appeared, that the facts proved in the cause were as follows:
    One Grattan married a daughter of the plaintiff Johnston, in the state of Tennessee, where Johnston resided; and he contracted debts in Tennessee while there. Very shortly before Grattan and his wife left her father’s house, for Greenbrier in Virginia, which was the place of Grattan’s residence, Johnston got another son in law to draw a deed of loan of the slave in question (then about six years old) to Grattan and his wife, specifying that the girl was lent to them, and that they were to take "good care of her, and deliver her to Johnston when he should demand her; and this deed was signed by Grattan and his wife. (The deed was lost, but the execution of it, and its contents, were admitted by the defendant.) A few minutes after the deed was executed, Johnston, having left the room with the subscribing witness thereto, and holding the deed in his hand, told the witness, that Grattan was largely indebted in Tennessee, and that he had taken this deed of loan, in order to shew that the girl was his property, should she be taken by Grattan’s creditors while she remained in Tennessee, but that “he intended to give the girl to Grattan any how.” A few hours after the deed was executed, Grattan and his wife, to whom the girl was delivered, set out to Virginia with the girl in their possession, and arrived in Greenbrier in June 1827. The deed was never recorded in Virginia or in Tennessee. Grattan, soon after-wards, having contracted a debt of ISO dollars to Mahon, the defendant, mortgaged the slave in question to him, to secure that debt, by deed dated the 30th June 1827. It was under this mortgage that the defendant claimed; Grattan having removed from Virginia, and before his removal delivered the slave to him. A.nd such being the state of facts proved at the trial, the court overruled the motion for a new trial; being of opinion, that it belonged exclusively to the jury to say, whether the deed of loan was bona fide or fraudulent, or whether the delivery of the slave by the plaintiff Johnston to Grattan was in fact a gift not a loan, and the deed of loan only a pretext to secure the property from Grattan’s creditors, while he was passing out of Tennessee into Virginia.
    The court then gave the plaintiff judgment upon the verdict; and the defendant appealed to this court.
    Johnson, for the appellant.
    No counsel for the appellee.
    
      
      New Trials — Verdict Contrary to Evidence. — On this question the principal case is cited in foot-note to Brown v. Handley, 7 Leigh 119; foot-note to Slaughter v. Com.. 11 Leigh 681; Slaughter v. Tutt, 12 Leigh 154 (see note): Vaiden v. Com., 12 Gratt. 728 (see note); foot-note to Bell v. Alexander, 21 Gratt. 1: Read v. Com., 22 Gratt. 942 (see note). See foot-note to Brugh v. Shanks. 5 Leigh 598; monographic note on “New Trials.”
      Parol Oitt of Slaves — Proof—Possession of Donee. — In Scott v. Jones, 76 Va. 235, it is said: “In Mahon v. Johnston. 7 Leigh 319, Judge Tucker said: ‘In Brown v. Handley (7 Leigh 119), delivered at this term, it was observed that though parol gifts oí slaves, accompanied by possession, were valid, yet the evidence of such gift should be clear and entirely satisfactory before it could be established, for as 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 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 his child.”’ See also, citing the principal case on this question, foot-note to Cross v. Cross. 9 Leigh 245: foot-note to Miller v. Jeffress, 4 Gratt. 472; foot-note to Brown v. Handley, 7 Leigh 119; Miller v. Neff, 33 W. Va. 206. 10 S. E. Rep. 381.
      Andin Collins v. Lofftus, 10 Leigh 10, itis said: “As to the merits, T am satisiied that the weight of the evidence is decidedly against the allegation that any of the slaves were given to Mrs. Collins. I have in other cases declared that T deemed it necessary, in order to sustain an alleged parol gift by a father to his daughter on her marriage, that the evidence of such gift should be clear and cogent; and in that opinion 1 understood my brethren to concur. Brown v. Handley, 7 Leigh 119; Mahon v. Johnston. 7 Leigh 317. In this case, to say the least, the testimony is very meagre. 1 think it altogether insufficient.” See monographic note on “Gifts” appended to Barker v. Barker, 2 Gratt. 344.
    
   *CARR, J.

I am of opinion, that upon the facts of this case we cannot disturb the verdict of the jury. There is no proof of a gift; on the contrary, the plaintiff took the precaution of a written acknowledgment from his son in law, that he received the girl as a loan; and though he declared, afterwards, that he took the writing to protect the slave from Grattan’s creditors while in Tennessee, that did not change it from a loan to a gift. Neither did the further declaration made by the plaintiff, that “he intended to give the negro to Grattan any how,” work such a change: since an intention to give is a very different thing from an actual gift. The judge spoke too broadly, when he said it belonged exclusively to the jury to decide, whether the deed pf loan was bona fide or fraudulent. Yet we ought not to reverse the judgment for that cause, if he was right on the whole in refusing the new trial; and I think he was; for'the jury are certainly the appropriate triers of facts, and it is only in case of “plain deviation,” that a court ought to grant a new trial, on the ground of a verdict being contrary to the evidence. I am for affirming the judgment.

BROCKENBROUGH and CABELE, J., concurred.

TUCKER, P.

In Brown v. Handley, decided this term, it was observed, that though parol gifts of slaves accompanied by possession yvere valid, yet that the evidence of such gift should be clear and entirely satisfactory, before it should be established. Eor, as 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 his child. Such possession *being equally consistent with the idea of a loan or a gift, and both loans and gifts under such circumstances, being common, the fact of possession does not seem to me to prove much. Had the facts stated in the bill of exceptions been submitted for my own decision, I think I should have said with the jury, — “this gift is not satisfactorily proved.” But be this as it may, that tribunal, to which it most properly belonged to decide this question, having so found, the court properly refused to disturb a verdict which, at most, cannot be said to be clearly against the evidence. The judgment must be affirmed.

Judgment affirmed. 
      
      Reported ante, p. 119.
     