
    
      James Caldwell vs. James Wilson.
    
    1. Where matter of defence is something- distinct from a contradiction of the case first proved by the plaintiff, the plaintiff’s reply must be confined to this matter, and not be extended to a confirmation of the case he has made, much less to the making- of a new case. But when the defence is wholly or in part made by an attempt to disprove what the plaintiff has endeavored to establish, if the evidence in reply meets the matters offered in defence, or any of them, it is not under our practice objectionable, because it also furnishes, incidentally, cumulative proof of what the plaintiff first undertook to prove.
    2. Where, in an action of trover, the plaintiff first undertook to prove a gift of the property in dispute, by the declarations of the donor, and by proof of other circumstances from which the gift was to be presumed, and the defendant endeavored to resist this, by proof of the plaintiff’s declarations, and of other declarations of the donor, shewing either that there had been no gift made, or that there had been subsequent adverse possession, the plaintiff, in reply, was permitted to offer declarations of the donor, that he had given prior to any before shewn, which he insisted seemed to shew a long cherished purpose to give, and thus to remove the inferences which might have resulted from the equivocal declarations of the donor, which the defendant had proved.
    3. The testimony thus offered in reply by plaintiff, held admissible.
    4. Evidence in reply considered, and the English practice on this subject as distinguished from ours.
    5. Delivery is a transfer of possession, either by actual tradition from hand to hand, or by an expression of the donor’s willingness, that the do-nee should take wlien the chattel was present, and. in a situation to be taken by either party. (
    6. Where a party claimed a chattel under an alleged gift from an intestate, in whose hands it had remained till his death, the gift may be proved by acknowledgements of the donor, if the jury be satisfied that it was attended with all necessary formalities.
    7. Whether a chattel has been given, and afterwards held by the donor, not as his own, but by permission of the person claiming, is a question for the jury.
    
      Before Wardlaw, J. at Newberry, Fall Term, 1843.
    Trover for six slaves, Lucy and her children.
    The plaintiff’s wife and the defendant, were of the children of James Wilson, senior, now deceased, of whose estate the defendant is administrator.
    James Wilson, senior, died about Christmas, 1841, having until his death, had possession of Lucy, from her birth, and of all her descendants. The plaintiff alleged that many years before his death, fifteen of twenty, James Wilson gave Lucy and her children, (if any she had at the time of the gift,) to his daughter, Mrs. Caldwell, then, and now, the wife of the plaintiff'; and that the subsequent possession of James Wilson, was, by the permission of the plaintiff, and accompanied with constant acknowledgement, that the property was th^, plaintiff’s. There was much testimony on both sides, tie recital of which is .unnecessary to the consideration of tire grounds of appeal.
    On the part of the plaintiff, by the testimony in chief it appeared that about 1825, or 1826, James Wilson, senior, and his son, the defendant, came to the plaintiff's, (living in the same neighborhood,) and after expressions of the father’s intention to give Lucy and the two children she then had, to his daughter, the plaintiff's wife, the father and daughter, son and son-in-law, were together when no witness or negro was present, and afterwards, on the same day, the father said that he had given Lucy and her children to his daughter, and that the plaintiff was to come for them the next day; that the next day, the plaintiff and his wife did go to her father’s, and left there without any negro, w'hen no witness was present; that in many conversations continued from that time until a short time before his death, the father, who, was more than ninety years old when he died, said that he had given Lucy and her children to Mrs. Caldwell, and that the day she came for them, when she was about starting home, the negroes made such a fuss, that he got her to leave them ; that they were her’s, and that he was raising them for her, with much more to the same effect.
    In defence, testimony was offered of conversations of the plaintiff, which were construed to mean that, on the day he went for the negroes, they were not given, and conversations of James Wilson, senior, within four years of his death, implying that the negroes were his, and had never been given.
    In reply, the plaintiff called Mrs. Wesson, who, being asked concerning any declarations about the gift of the negroes, she had heard James Wilson, senior, make, commenced the narration of a conversation with him in 1820, when he said he had given Lucy, (who then had no child,) to Mrs. Caldwell. This was objected to, as a new- and substantive gift, proved in reply; but as the fullest liberty to prove James Wilson, senior’s declarations, made at any time, in answer to his acknowledgements of a gift, had, even beyond what was considered the strict rule, been allowed to the defendant, these counter declarations made to Mrs. Wesson, were admitted as evidence on one side, of intention, and on the other of what the old man meant when he said he had given. So far as a new gift was to be established by them, a. rejoinder, in evidence, would have been allowed to the defendant, if he had asked it.
    The presiding Judge-instructed the jury that a delivery was a transfer of possession, either by actual tradition from hand to hand, or by an expression of the donor’s willingness, that the donee should take when the chattel was present, and in a situation to be taken by either party; that there could be no gift without a delivery; that in a case like this, where the defendant claims under the alleged donor, a gift may be proved by the acknowledgments of the donor, if the jury be satisfied that it was attended with all necessary formalities ; that the Statute of Limitations would not confer title by reason of a possession held by the permission of the owner, and'with acknowledgment of his title; and that it was for the jury to decide, from the whole testimony, whether the negroes had been given, and were held afterwards by James Wilson, senior, notas his own, but by the permission of the plaintiff. As to a gift made in 1820, his Honor charged that it was barred by the Statute of Limitations, before any subsequent acknowledgment was made.
    The jury found for the plaintiff, the value of the negroes.
    The defendant appealed, and moved the Court’of Appeals for a new trial, on the following grounds :
    1st. Because his Honor erred in charging the jury that they might infer that a gift had been made merely from the subsequent declarations of the intestate, (the alleged donor,) although there was no proof of delivery of the slaves.
    2d. Because his Honor erred in permitting the plaintiff, in reply, to prove a gift in 1820, five years previous to' the alleged gift, proved in the opening examination of his witnesses.
    3d. Because his Honor erred in charging the jury that the Statute of Limitations could not avail the defence, because intestate admitted that he had given the slaves to the plaintiff’s wife, and was raising them for her, although more than four years had elapsed from the time of the supposed gift.
    4th. Because his Honor ought to have charged the jury, that the admissions of the plaintiff, and the continued possession of the defendant, were conclusive evidence that no gift had been made, that the possession was adverse for more than four years.
    
      Caldwell <%• Fail', for the motion.
    
      Herndon Sp Pope, contra.
   Curia, per

Wardlaw, J.

The court is satisfied with the instructions given to the jury, which meet the first, second and fourth grounds of appeal. As to the third ground, a large discretion must be left to the circuit Judge, in regulating the order of testimony, and where no surprize or injustice has been effected, this court would no more prevent the plaintiff’s being permitted, in reply, to supply an omission, than it would prevent such indulgence being extended to him after a motion for nonsuit.

But where the regular order is enforced, it is, in practice, difficult to exclude from the evidence in reply, all matters not strictly in reply ; and the practice of our courts, which postponed all the arguments of counsel until all the evidence has been heard, renders less strictness necessary here than in England, where the argument of defendant’s counsel, in general, precedes the evidence in reply. Evidence in reply, ought to go to cut down or destroy the matter proved in defence, and not merely to confirm or increase the evidence given in chief. The trick of the plaintiff ’s reserving his strength for reply, should not be countenanced.

When the matter of defence is something distinct from a contradiction of the case first proved by the plaintiff, it is easy to see that the plaintiff’s reply must be confined to this matter, and not be extended to a confirmation of the case he has made, much less to the making of a new case. But where the defence is wholly, or in part, made by an attempt to disprove what the plaintiff has endeavored to establish, if the evidence in reply meets the matters offered in defence, or any of them, it is not, under our practice, objectionable, because it also furnishes, incidentally, comulative proof of-what the plaintiff first undertook to prove. Now in the case before us, the plaintiff first undertook to prove a gift, by the declarations of the donor, and by proof of other circumstances, from which the gift was to be presumed. The defendant endeavored to resist this, by proof of the plaintiff’s declarations, and of other declarations of the donor, shewing either that there had been no gift made, or that there had been subsequent adverse possession. The plaintiff, in reply, offered declarations of the donor, that he had given prior to any before shewn, which he insisted served to shew a long cherished purpose to give, and thus to remove the inferences which might have resulted from the equivocal declarations of the donor, which the defendant had proved. In this view, the testimony was in reply, and it moreover served to aid in explaining the true meaning of the donor, when afterwards he said that he had given, or that the negroes were his. It was not less in reply, because it rendered more probable the gift which the plaintiff had before endeavored to establish, and so confirmed his previous proof. As no direct evidence of a delivery had been offered, it could not have appeared that all the declarations of the donor did not relate to the same gift, which may have been alluded to in this testimony. If the plaintiff had shewn a gift at a particular time, and this testimony shewed a different one, it was not in reply; but if its weight, in that view, had been appreciated by the defendant, it would have been met by an offer to rejoin. The witnesses were all present; and the defendant is in just the same situation he would have been in, if the testimony objected to had been offered in chief, and not in reply. The motion is dismissed.

Richardson, Q’Neall, Evans and Butler, JJ. concurred.  