
    Willard Watson, vs. James Williams.
    
      Trespass fur the taking of a slave: defendant justified as having the right of property, and offered in evidence a letter written by a former owner of the slave, acknowledging that he had sold to defendant. Held that the letter was incompetent, as the decide tion of a third person, betioeen whom and plaintiff there was no privity.,
    This was an action of trespass. The plaintiff proved that he had been in possession .of a negro man called Jim, and that ori the of May, 1822, about 10 o’clock at night, the defendant entered the plaintiff’s house and took him. away. • The plaintiff laid claim to Jim and warned defendant not to take liim.
    Defendant set up on the trial a title to the negro. For this purpose, he proved a bill of sale for a negro called Jim, from Wm. Shaw to Wm. Smith, dated 1814.
    The defendant next produced a bill of sale from Wm. Smith to defendant, dated May 13th 1822, the day of the night Upon which he committed the trespass. There was a subscribing witness to this bill of sale, who not being produced, the court supported an objection on the part of the plaintiff, to its being proved by any one else.
    Defendant then proved the signature of a letter from Wm« Smith to himself, dated January 23, 1823, after the commencement of this action. This letter was written to defendant, in answer to one he had written to Smith, informing him that this action had been brought against him, and requiring him to support his title. Smith in his answer promises to pay the costs, and goes on to say he had sold the negro to defendant.
    Objections were taken to this letter’s being received in evidence; that the defendant had shown a bill of sale from Smith, and could not now resort to inferior testimony to establish his right; that Smith’s declarations or letter were no evidence; . that these shewed him to he interested in the event of the case; that the declarations contained in the letter, being made after the action was brought, could not be given in evidence to shew a title in defendant, at the time the tresspass was committed, and {hat in fact, the letter did not shew whether defendant had brought after or before the trespass. The objections were overruled by the court and the letter admitted in testimony.
    Defendant then also went on to shew that plaintiff’s possession of Jim was under a loan from Smith, made in 1815, and plaintiff in reply produced evidence which he relied on to shew that it was under an absolute gift; plaintiff’s wife was the Sister of Smith, and it was in consideration of that connexion that Jim liad been given.
    The jury found a verdict for defendant. The plaintiff appealed principally on the grounds of objection taken to Smith’s letter.
    
      Johnson, for motion,
    argued that Smith’s letter to the defendant was incompetent testimony to shew the sale, as defendant had shewn that there existed higher testimony of the fact — the bill of sale. The rule which requires the production of the subscribing witness, is not merely that there may be the most satisfactory proof that the instrument was executed; the party to be affected has a right to the evidence of the witness as to the circumstances under which it was executed. The witness if produced, might have proved fraud in obtaining the bill of sale; he might have proved a defeazance entered into at the same time. But the letter was at most only the declarations of Smith, and no evidence against plaintiff; between whom and Smith there was no privity. The competency of testimony is to be judged of when it is offered. When this was offered, the plaintiff Had'set up no claim under Smith: he had relied on his possession alone; and if it was proved that the property was formerly Smith’s, the legal presumption was that he had purchased of Smith. Could Smith’s declarations be received to rebut such evidence of title? But he could not have been sworn as a witness if he had been present. The letter itself shews him to be interested in the event of the suit and answerable to Williams, if he should fail. If it is competent however, as Smith’s acknowledgment of having sold, it does not shew that the sale was made before the trespass committed; and ambiguous testimony is to be taken most strongly against him who produces it. Cited Phil. Ev. 173, 4; id. 176, 184; 2 M’Cord, 214; 1 Johns. 159; 5 Johns. 112.
    Bauskctt, contra.
    There can be no doubt that plaintiff derived whatever claim he had to the property, from Smith. And there is as little doubt that the negro first went into his possession as a loan. He offered no proof of a subsequent gift, but presumption, arising from the length of time the negro was allowed to remain in his possession. Such presumption however cannot arise; he who relies on a gift must prove it; it is not like the case of a parent permitting property to go into the possession of a child, where a gift is presumed from the obligation of a parent to provide for the child. No such inference is to be made from the relation of brother and sister. There was sufficient proof of property in Smith, if not of a transfer to defendant. But a trespass may justify under an authority from the owner of the property; and the letter shews ample authority to take possession of the negro, if not evidence of a sale. Smith would not have been a competent witness, to prove that he had not given the negro to plaintiff, but he might have testified that he had authorized defendant to take him.
   The opinion of the coicrt ivas delivered by

Mr. Justice Richardson.

The only question necessary to be considered is, whether the letter written by Smith after the commencement of the action, is competent testimony, to shew a title to the negro in the defendant. In order to decide this question, it is first to be observed that the plaintiff had deduced no title from Smith; he and Smith were therefore strangers, and it followed of course, that any evidence given by Smith must be upon oath or adduced in open court, like the evidence of other witnesses. ~

Butin answer to this view, it may be urged that the letter of Smith maybe considered a bill of sale and merely evidence of a transfer of his property in the negro to the defendant, and assuredly, it would be legal testimony against Smith for that purpose.

'O’Neal, and Johnson, for motion.

Lausiicit, and Dunlap, contra.

But as against a stranger, it can be no more than an ex-porte declaration made by Smith of what he had done; and viewing him as a witness, he ought to be sworn in open court. Even as a deed of confirmation, being made subsequent to the commencement of the action, it could not prove a title in the defendant at the time of the trespass committed. But I can perceive in the letter nothing more than a piece of exparte evidence, calculated to support the defendants title; to do which Smith was interested, and he might as well have been brought into open court to sign certificates, as the exigencies of the dcr fence should require successive expedients.

The case appears to me to come within the principle established by the case of Martin, vs. Lightner, 2 M'Cord, 214, that the declarations of the payee of a note, which he liad transferred, were inadmissable. The motion is therefore granted*

Johnson, Colcock, and Mott, Justices, concurred.  