
    *Hunter v. Jones.
    October, 1828.
    Dettnuet — Evidence. — In an action of Detinue for a slave, between the child, who is sole distributee of an intestate father, and a purchaser from the widow’s second husband, an order oi Court appointing Commissioners to assign the widow her dower, although made ex parte, and on motion, without regular proceedings in Chancery, and the report of the Commissioners, are proper evidence. to show the slave was allotted to the widow for life only; especially, where the widow and her second husband were present, and consenting- to the allotment.
    Evidence--Apswer in Equity.-The Answer of a Defendant in Equity, is competent evidence against the same Defendant, in a suit at Daw against him, although the Plaintiff at Law was not a party to the suit In Equity.
    Same — Declarations of Vendor.-- The declarations of a vendor of a slave, made after the sale, are good evidence against the vendee, if they accord with the acknowledgments of the vendee himself, previously made.
    Dower — Case at Bar. — If a widow, who is also Admin-istratrix of an estate, appropriates the profits to the purchase of slaves, or other personal property, and afterwards she and her second husband agree to consider the property so purchased as part of the intestate’s estate, (in lieu of accounting for the estate,) and to take the property so purchased as part of her dower, or distributable share for life, such arrangement is binding on them, and on purchasers from them, so as to vest the title, after the death of the widow, in the dis-tributee of the first husband, in like manner as if that particular property had belonged to the intestate in his life-time.
    Parol (iift — Slave-—'Validity, —A parol gift oí a slave by a father to an infant child living with him, by a declaration that the gift is made, without delivery of possession, is not good against a subsequent purchaser of that slave, although such purchaser knew at the time of his purchase, that the father had so made the gift.
    Instruction— Erroneous — Question Did Not Arise in Cause-Effect,  — If an erroneous instruction be given to a Jury by a Court, and it appears, by other Bills of Exceptions, that the question, on which that erroneous instruction was given, did not arise in the cause, the Judgment will be affirmed, notwithstanding the erroneous instruction.
    Detinue in the Superior Court of Law for Campbell County, brought by Powhatan Jones, Plaintiff, against Benjamin Hunter, Defendant, to recover a negro man slave, named Ford. On the trial, on the general issue, the Defendant filed three several Bills of Exceptions to the opinions of the Court.
    The first Bill of Exceptions sets forth, that the Plaintiff, who claimed the slave as one of those assigned as a part of the dower of his mother in his father’s slaves, introduced in support’of his action a paper in the following words: “Campbell October Court, 1805. Ordered, that John *Reid, Dennis Kelly, Thomas Jones and John Strange, or any three of them, lay off and allot to Judith Rosser, formerly Judith Jones, a widow of Thomas Jones, deceased, her thirds of the land and personal estate belonging to the estate of Thomas Jones, deceased.
    Teste, Ro: Alexander, C. C. C.”
    To which order is appended a report by all of the Commissioners, bearing date 16th October, 1805, that they had, agreeably to the order, laid off and allotted to the said Judith Rosser, as her thirds, five negroes, and sundry other personal estate: and that no land was contended for. The names of the negroes were, Phill, a man, Ford, a boy, Henry, a boy, and a woman, Dorcas, and her child, Sam. And to the report was also appended a certificate of the Clerk of the Court, that the above allotment was exhibited in Court December 9th, 1805, and ordered to be recorded. To the introduction of which paper the Defendant objected, because the said order of Court, and the proceedings thereupon had, were without any suit for the division of the estate of Thomas Jones, and because Pleasant Rosser, the second husband of Mrs. Jones, under whom the Defendant claims, was no party to the proceedings; but, the Court over-ruled the objection, and admitted the paper as evidence, the Plaintiff being at liberty to prove by other evidence, that the said Pleasant Rosser was a party in procuring the order of Court, and consenting to the division at the time.
    The Plaintiff further introduced in evidence an Answer of the Defendant, Benjamin Hunter, to a Bill in Equity, exhibited by one John Talbot, against the said Hunter, and Pleasant Rosser, Defendants; in which Answer, the Defendant says, “That the Defendant, Pleasant Rosser, having intermarried with the widow of Thomas Jones, acquired in her right a number of slaves, and amongst others, the slave Ford: that he has beer: informed, and believes, that Ford was allotted, by the Commissioners appointed to divide the estate of Thomas Jones, as a part *of Mrs. Rosser’s dower slaves in the estate of her first husband: that some time in the year 1812, Pleasant Rosser proffered to sell Ford to the Defendant telling him that he could readily procure from Powhatan Jones the oniy child of his wife by her first husband, 'a release of any right or title which he might have at his mother’s death ; and the Defendant, having a short time before, had a conversation with Powhatan Jones, had reason to believe that Rosser, by releasing his title to some other slaves claimed by said Jones, would have it in his power to procure a release from Jones to Ford, and consented to become the purchaser of Ford, provided his title was secured: Rosser thereupon proposed to execute a Deed of Trust upon Daniel, to secure the title of Ford ; which being satisfactory, the Defendant bécame the purchaser of Ford at his full value: that Pleasant Rosser has altogether failed to procure a release from Powhatan Jones, of Ford, and the Defendant, without knowing the situation of his title to Ford, yet as Powhatan Jones claims title to him at the death of his mother, and as the Defendant has been informed, and believes that he was allotted, by Commissioners appointed to divide the estate of Thomas Jones, deceased, to Mrs. Rosser for life only, he conceives himself well entitled to claim the benefit, as he does claim the benefit, of the provisions of the Deed of Trust, &c.’’ The whole Record, of which this Answer formed a part, was exhibited in Court. The Defendant objected to its going in evidence, because the Plaintiff in this action was not a party in that suit in Chancery; but. the Court over-ruled the objection, and admitted the answer to be read to the Jury, for the purpose of proving the declarations of the Defendant in regard to his knowledge of the title to the slave in controversy, at the time of his purchase.
    The Plaintiff further introduced a witness for the purpose of proving the declarations of Pleasant Rosser, under whom the Defendant claims title to the slave in controversy. *To such declarations after said Rosser had sold the slave, the Defendant objected. But the Court over-ruled the objection, and allowed the Plaintiff to prove any declarations of the said Rosser, respecting the division of the estate of Thomas Jones, and which were calculated to show how, and upon what consideration, it happened that the negro slave in question was, held, and regarded by him and his wife, who was the widow and Administratrix of said Thomas Jones, deceased, as part of the said Jones’s estate, though purchased by the Adminis-tratrix after the said Jones’s death ; or any declarations which admitted that said slave was purchased for the estate, and was paid for with the money of the estate; and also any declarations which went to an acknowledgment that said Rosser was present at the time of the allotment of dower, and privy to the division which is set forth in the first part of this exception ; no matter at what time these declarations were made. To these several opinions, the Defendant excepted.
    The second Bill of Exceptions states, that the Defendant’s Counsel1, in the course of his argument, laid it down to be law, that a paíol gift of a slave, was void as to creditors, and subsequent purchasers for a valuable consideration, unless such gift come to the possession, and remain with the donee, and not with the donor; whereupon the Court stopped the Counsel, and said that was not the law in case of infants, and instructed the Jury that a parol gift of a slave by a parent to an infant child living with him, was good without any delivery of possession other than the declaration that the gift was then made, even against a subsequent purchaser for a valuable consideration, from such parent, if the purchaser, at the time of the purchase, knew that such slave had been so given to the infant, although the parent should retain the possession of such slave, from the time of the gift until the sale. To this opinion the Defendant excepted.
    The third Bill of Exceptions states, that it having appeared in evidence that the slave in question never did *belong to the Plaintiff’s father, in his life-time, but was bought by the Plaintiff’s mother, while a widow, who had taken a Bill of Sale for him and others, which is set out: (the Bill of Sale is executed by Jessee Jones to Judith Jones, dated 14th February, 1798, and conveys five negroes, of whom Ford is one, for the consideration of 2001.): the Plaintiff then offered proof to show that the purchase made by his mother, was paid for with the money derived from his father’s estate, and paid by his, the Plaintiff’s Guardian, after the division of the estate; and that at the time when the division was made, and his mother’s dower of the estate of his father was allotted to her, she and her second husband, P. Rosser, were present, and rendered up the slaves which had been so purchased, as part of the estate of her deceased husband, and made no other account of the profits of the estate, from the death of her husband until the said division; and that the Plaintiff’s Guardian being present, agreed to accept, and did accept, the slaves as part of the Plaintiff’s father’s estate, instead of any other account of profits, and so placed them before the Commissioners, with the consent of the said Rosser and wife, and to be counted as part of said estate, of which dower was to be allotted: whereupon the Plaintiff contended that, by consent of both parties concerned, the said slaves became, the slaves of his father’s estate, and that the one in question being part of those assigned as dower slaves became after his mother’s death, the property of the Plaintiff, this suit being instituted since her death. The Counsel for the Defendant contended, that if the slave never belonged to the Plaintiff’s father, but was purchased by the mother, after her widowhood, the slave never could become the estate of the father, so as to be the subject of dower to the mother. But the Court instructed the Jury, that by consent of the parties interested, a slave thus circumstanced might be substituted, and pajss as part of the dower slaves of a widow: and if the Jury should be of opinion, from the evidence before them, that such consent was made by *the parties interested at the time, and acted upon accordingly, the slaves must pass to the Plaintiff, in like manner as if he had been the property of his father in his life-time. To this opinion the Defendant excepted. Verdict and Judgment were thereupon rendered for the Plaintiff, and the Defendant appealed to this Court.
    Johnson, for the Appellant.
    Wyndham Robertson, for the Appellee.
    
      
      Detinue. — See monographic note on “Detinue and Replevin" appended to Hunt v. Martin, 8Gratt. 578.
      See principal case cited in Tabb v. Cabell. 17 Graft. 170.
    
    
      
      Evidence — Answer in Equity. — There Is a volume of law to show that pleadings in another cause may be used for evidentiary or collateral purposes where only one party to the case on trial was a party to the former one. Ati answer in chancery maybe used as evidence of an admission of a fact or facts. Wilson v. Phœnix Powder Mfg. Co., 40 W. Va 413, 21 S. E. Rep. 1037, citing the principal case; Tabb v. Cabell, 17 Gratt. 160; 1 Greenl. Ev. f 527a; 1 Whart. Ev. §§ 838. 838, as its authority.
    
    
      
       Giftsof Personally. — In Virginia for more than a hundred years, there have been statutes prescribing- whatis necessary to make a valid gift of slaves. Dickeschied v. Bank, 28 W. Va. 387, citing the principal case; Durham v. Dunkly, 6 Rand. 135; Patterson v. Franklin, 7 Leigh 590; Shirley v. Long, 6 Rand. 735; Brown v. Handley, 7 Leigh 119; Barker v. Barker, 2 Gratt. 344 See principal case also cited in Thomas v. Lewis, 89 Va. 82, 15 S. E. Rep. 389.
    
    
      
       Instructions — Erroneous — Effect. — Tn Koiner v. Rankin, 11 Gratt. 429, it is said; “That an instruction presents merely an abstract proposition, is certainly a very sufficient reason why a court may refuse to give it: hut if given audit state the law correctly, I am not aware that it has ever been held a sufficient cause for reversing the judgment. And though erroneous, it would, as it seems, not be deemed sufficient to reverse. Hunter v. Jones. 6 Band. 541.” And in Sheppard v. Insurance Company, 21 W. Va. 394. the principal case is cited to sustain the proposition that, though an instruction be abstract, if it be not calculated to mislead, the case will not be reversed on that account.
      To the same effect, the principal case is cited in Kincheloe v. Tracewells, 11 Gratt. 609; Newberry v. Williams, 89 Va. 302, 15 S. E. Rep. 865; foot-note to Colvin v. Minefee, 11 Gratt. 87. See further, mono-graphic noteon “Instructions” appended to Womack v. Circle, 29 Gratt. 192.
    
   October 31.

JUDGE COAETER

delivered his opinion.

Although this case is rendered somewhat obscure, from the manner in which the points arising are stated in the various Bills of Exceptions, it seems to be substantially a case of this nature:

Thomas Jones departed this life intestate, leaving a widow and an only child, the present Plaintiff, who was an infant.

The widow administered on the estate, and having received the estate, and also derived considerable profit therefrom, she, with the assent of the Guardian of the child, made a purchase of several slaves, with the monies of the estate, and amongst them, the slave in controversy. The widow afterwards intermarried with Pleasant Rosser, after which, an order of Court was made, (on whose motion is not stated in the Record,) appointing Commissioners to assign to the widow her share of the real and personal estate. Rosser and Wife, and the Guardian of the infant, attended at the division made by the Commissioners, whether the husband and wife brought forward the slaves so purchased, as part of the estate of the intestate, and made no other account of the profits of the estate, and the Guardian of the infant agreed to accept the same as part of the father’s estate, instead of any other account of profits; and thus, by the ®assent of all parties, they were treated and divided by the Commissioners of the estate of the intestate. Five slaves were thus allotted to the widow, including Ford, the slave in controversy, and Dorcas and her son Sam; which Dorcas was probably also one of the slaves so purchased, as one of that name is in the Bill of Sale.

The division thus made, was returned to Court and recorded. After this, the Defendant purchased the slave Ford from Rosser. The manner of this transaction is detailed in an Answer of the Defendant to a Bill in Chancery, exhibited against him and others, in relation to a slave named Daniel, by one Talbot, in which he states, that Rosser, having intermarried with the widow of Thomas Jones, acquired, in her right, a number of slaves, and amongst others, the slave Ford, and that he is informed, and believes, that Ford was allotted by Commissioners appointed to divide the estate of Thomas Jones, as part of Mrs. Rosser’s dower slaves: that Rosser proffered to sell Ford to him, telling him he could procure from the Plaintiff a release of any right he might have at his mother’s death ; and that having had a communication with the Plaintiff a short time before, from which he was led to believe that such release might be procured on certain terms, he became the purchaser, on Rosser’s executing a Deed of Trust on the slave Daniel, to secure the title of Ford: that the Defendant therefore claims the benefit of the Deed of Trust on Daniel, until the title to Ford is perfected, Rosser having failed to procure the release, and the Plaintiff asserting his title to Ford after the death of his mother.

Thus it seems the matter rested, till after the death of Mrs. Rosser, when the Plaintiff instituted this suit for the recovery of Ford.

The first Bill of Exceptions sets out the order of Court appointing Commissioners, and their report. These documents were objected to, because there had been no suit for the division of the estate, and because Pleasant Rosser was no party to the proceedings; but, the Court over-ruled *the objections, and admitted the paper as evidence, the Plaintiff being at liberty to prove by other evidence, that Rosser was a party in procuring the order of Court, and present at, and consenting to, the division. The same Bill of Exceptions sets out the Answer of the Defendant above noticed, which was offered by the Plaintiff, and objected to by the Defendant, because the Plaintiff in this suit was no party to that suit; which fact, to save the expense of copying the whole Record, was admitted. This objection was over-ruled, and the Answer admitted to be read, in order to prove the declarations of the Defendant in regard to his knowledge of the title to the slave at the time of his purchase.

It is furthermore set out in this Bill of Exceptions, that the Plaintiff introduced a witness to prove the declarations of Rosser, under whom the Defendant claims title, but the Defendant objected to any evidence of the declarations of Rosser, made after he had sold the slave in question. But the Court allowed the Plaintiff to prove any declarations of Rosser, respecting the division of the estate of Thomas Jones, and which were calculated to show how, and upon what considerations it happened that the slave in question was held, and regarded by him and his wife, as part of the estate of Jones, though purchased by the Administratrix, after the death of said Jones, or any declarations which admitted that said slave was purchased for the estate, and was paid for with the money of the estate; also, any declarations which went to an acknowledgment that said Rosser was present at the time of the allotment, set out in the documents before referred to, no matter at what time these declarations were made.

For the contents of the second Bill of Exceptions, see the statement prefixed to this opinion.

The third Bill of Exceptions sets out the testimony as to the purchase of the slave by the Widow and Administratrix, with the monies of the estate as first above stated, and the instruction of the Court, that by consent of the ^parties interested, a slave thus circumstanced might be substituted, and pass as part of the dower slaves of a widow; and that if the Jury should be of opinion, from the evidence, that such consent was made by the parties at the time, and acted on accordingly, the slave must pass to the Plaintiff, in like manner as if he had been the property of the Plaintiff’s father.

The Jury being satisfied of the facts stated in this last Bill of Exceptions, and being no doubt also satisfied of the fact, that the Defendant had full notice of the Plaintiff’s claim, and that he had taken satisfactory security for the title when he made the purchase, there can be no doubt where the justice of this case lies. The only question is, whether any thing has been decided by the Court which shall make it necessary to reverse the Judgment.

The order of Court, and the report of the Commissioners, were properly admitted as evidence, especially when connected with the other facts, showing the assent, and presence of all parties at the time of the allotment. The Answer too, was properly admitted, to show that the Defendant was informed that the slave in dispute had been allotted, and that the Plaintiff claimed him after the death of his mother.

And as to the declarations made by Rosser, after the sale to the Defendant, that such allotment had been made, and that the slave was held bjr him and his wife under it, as stated in the Bill of Exceptions, however that matter might have been but for the disclosures and circumstances stated in the Answer set out in the first Bill of Exceptions, yet as these declarations were in accordance with the notice the Defendant admits he received before his purchase, I cannot say they were improperly admitted to go to the Jury. They were mere repetitions of what the vendor had, in perfect fairness, made known to his vendee at the time of the sale.

So, too, as to the facts set out in the third Bill of Exceptions, if they were believed by the Jury, they well warranted the conclusion they were instructed they might *draw from them, to wit, that as the parties had agreed to consider the slaves, purchased with the monies of the estate, as though they originally belonged to it, and had treated them as such, instead of calling the Administratrix to account for the estate, it was an arrangement that bound her and her husband, and was equally binding on those claiming under him, so as to vest the title in the Plaintiff, in like manner as if they had belonged to the intestate.

The only remaining question, is that arising out of the second Bill of Exceptions, as to the parol gift of a slave by a parent to an infant child, residing with him. As an abstract point of Law, this I think was badly decided, and how such a question could arise in this case, in which nothing is said about a gift of a slave, is not perceived.

Had an instruction been asked for on that point, it seems to me, it might well have been refused on that ground; and had the Court simply told the Jury, that however the Law might be on that point, as there was no case before tffem involving the question, it would be improper for them to consider it. I presume there would have been no doubt of the propriety of such direction. It would seem to me hard and unreasonable, therefore, that an erroneous opinion of a Court on a point, which, decided either way, would not affect rhe case before them, should have the effect of reversing- a Judgment, clearly right, according to the merits of the case really before the Court and Jury.

A< at present advised, I am not inclined to reverse the Judgment on this ground. If we did so. we could only direct that on a new trial, if the case should be made out as one of a parol gift of the slave in dispute, no such direction should be given. But as no such case had been insisted on, but the reverse, as expressly stated in the third Bill of Exceptions, it would surely be idle to send it back under the preposterous idea that the Plaintiff would make out such a case, and thereby' clearly defeat his own claim.

JUDGE)?» CABELL and CARR concurred that the Judgment should be affirmed. 
      
       Absent, the President and Judge Green.
     