
    Honorable Robert R. Reid v. Honorable Charles J. Colcock.
    
      The attorney of record is a competent witness for Ms client
    
    
      Every assuming to dispose of the property of another, or the least intermeddling with it, . in a manner subversive of the dominion of the owner, is sufficient evidence of a conversion.2
    
      Property in a chattel cannot be transferred by a parol gift without delivery; but by delivery is not meant an actual manual delivery, in all cases; but any circumstance amounting to a clear demonstration of the intention of the one to transfer, and of the other to accept, and which puts it into his power or gives him authority to lake possession, is all that is necessary, and is a fact to be left to the jury. 
      
    
    
      The original endorsement on a writ, and not the entry in the sheriffs books, is the best evidence to prove when an action was commenced.
    
    
      A sworn return or answer of defendant to a notice to produce on trial a deed in his possession, is inadmissible. .
    
    This was an action of trover, tried at Beaufort, April term, 1819, originally-brought against the defendant and one Williamson, as to whom it had abated by his death.
    It was to try the plaintiff’s right to the following negro slaves, to wit, Frank, Arthur, Billy, Sam, Libby and her children, Doll, Grace, *Cloo and Aaron, alg Big Aaron and Caesar, which the plaintiff claimed under a gift from his father, Robert Reid, deceased. At the opening of the case, it was stated, and so it appeared from the evidence, that the present defendant, although a party, had no personal interest in the event of the case ; but, that the negroes in question had come into the possession of himself and his late co-defendant, as the executors of the last will and testament of Robert Reid, the plaintiff’s father; and that by that means, the responsibility of defending the action devolved upon him.
    The evidence in support of the plaintiff’s claim to the several negroes was substantially as follows:
    1. Frank. Mrs. Black, the sister of the plaintiff, and who was sworn in his behalf, said, that about sixteen or seventeen years ago her father gave her a paper, which he desired her to put away and to take care of it, saying that it was a deed of gift from himself to the plaintiff, for the negro Frank. That she saw the deed some time after in a trunk; that she read it, and distinctly recollected that the name of Frank was in the deed; and that the name of another was also inserted, but she could not say whom, with any certainty; that on one occasion some person, in his presence, asked Frank, then a boy, to whom he belonged, and on his replying that he did not know, he gave him a severe chastisement, saying to him he belonged to plaintiff, and desired that he might remember it for the future. Captain Black, the husband of this witness, was also sworn, who said, that some timo after his marriage the plaintiff’s father said to him, that his, the witness’ driver, was no planter, and that if he would let him have a negro in exchange he would let him have Frank, who was competent, but that the exchange could only continue until the plaintiff came of age, as he belonged to him; and thought that he said something about having made a deed; that he accepted this proposition, and kept Frank under it for several years and then returned him. And another witness also said that he was present at the conversation stated by Captain Black.
    2. Arthur. Mrs. Black and three other witnesses said, that the plaintiff’s father frequently declared that he had bought Arthur, as a body servant for the plaintiff, and had given him to him; and on one occasion he was called up and shown to one of the witnesses, and his opinion asked as to the propriety of the purchase, and the probability of his answering the purpose for which he was purchased.
    3. Billy. Mrs. Black stated, as to this negro, that on the plaintiff’s coming home on a visit, while at college, the negro Billy was called out of the field by plaintiff’s father and given to him; and on that occasion, and frequently after, when plaintiff was at home, Billy left his work in the field and attended his person; and in this her evidence was corroborated by another witness, who was employed by plaintiff’s father as an overseer.
    4. *Sam. The plaintiff’s father also gave him Sam, but the witness, Mrs. Black, could not distinctly recollect either the manner of the gift, or whether Sam was or was not present; but Sam was always called and recognized by the family as the property of the plaintiff.
    5. Libby, including her three children, Grace, Cloe and Aaron, admitted to have been born after the time of the gift, under which the plaintiff set up his claim, was made. The witness, Mrs. Black, said the plaintiff’s father called up Libby and gave her to the plaintiff. Another witness said that he had told him that Big Aaron, the husband of Libby, and his family, belonged to the plaintiff.
    6. Doll, it was said, ivas given to the plaintiff by his father, and was taken into the house, on that account, by his mother, to be made a seamstress for his use ; and kept there in that employment until the death of his mother.
    It appeared also, from the evidence, that the plaintiff’s father was wealthy, and died so, and that all these gifts were made sixteen or seventeen years ago, in the lifetime of plaintiff’s mother; when he himself was quite a boy, and wlxeu the whole of his children consisted of the two, Mrs. Black and the plaintiff, with no prospect at that time of having more; and that in almost every instance, he, at the same time, gave also a negro to Mrs. Black, who was also young and unmarried, in precisely the same manner, declaiming that he would make no difference between them. That on Mrs. Black’s marriage, she applied to her father for permission to carry with her the negroes, before given to hex', and that he replied, ‘11 have already given them to you and they are yours, and you have a right to take them. ’ ’ That on the death of plaintiff’s mother, and on a subsequent marriage of his fathei-, which the plaintiff and his sister, Mrs. Black, deemed indiscreet, a difference took place between them, and he withdrew his support from the plaintiff while engaged in the study of law; and that for a considerable time all intercourse was broken off between them. That until this difference, the negroes now claimed by the plaintiff were called plaintiff’s in the family, and until this time, no person had ever called his right in question; and that during the existence of this misunderstanding, the plaintiff got possession of two or three negroes, which had been secured by deed from his father to his mother for life, and at her death to himself and Mrs. Black; but that before the death of the father, a reconciliation had taken place between them.
    The counsel for the plaintiff called on the counsel for the defendant, to know if they were authorized or would admit a conversion on the part of the present defendant, and upon being answered in the negative, he offered himself to be sworn. This was objected to on two grounds :
    1. Because he was incompetent, being the attorney of record.
    2. Because he was the security of the plaintiff, who resided out of 'xthe State, for the costs of the action, in the event of its being decided against him.
    To obviate these objections, the plaintiff’s counsel offered to release, both to plaintiff and defendant, any costs to which he might be entitled, and to deposit with the clerk the amount of the bond. The objections were not then pei’sisted in, and it was distinctly understood that they were abandoned; and the witness was sworn.
    He stated, that after this case was at issue one or two terms, he spoke to the present defendant, and asked if it was necessary to keep a witness attending to prove a conversion, who replied to him, “You know this is a case in which nothing can be admitted.” He, however, called Mr. Williamson, the other defendant, who was near, and inquired whether a demand had been made of him, who answered that there had been. The present defendant then said, “That is sufficient, you may dismiss your witness and that in consequence of this arrangement, he had never after summoned the witness to prove this 'fact.
    Thomas H. Colcoek, Esq., the defendant’s son, was also sworn, who said that Williamson, the other defendant, had died about eighteen months ago, and that until his death, the present defendant had not intermeddled with the management of the plantation and negroes of their testator, further than to draw on Williamson for funds for the support and education of the younger children, of whom there were several by the last marriage; but that since his death, the whole management of the estate had devolved on him.
    The statute of limitations formed a part of the defence in this case; and to bring it out of the statute, the family Bible, containing a register of births, among which was the plaintiff’s, was produced. And to show the commencement of the action, the entry of the sheriff on the back of the writ, of the time when the writ was entered, was offered in evidence, which was objected to on the ground, that the sheriff’s books furnished higher evidence, and ought to be produced. This objection was, however, overruled.
    In an early stage of the cause, the plaintiff’s attorney abandoned all claim to the negro Cffisar; and the cause went to the jury, and they found a verdict for the plaintiff for $5800, made up, as appeared from a memorandum made by them and exhibited at the time, of an allowance to the plaintiff of $500, for each of the negroes named in the declaration, except Csesar and Big Aaron, and $300 hire for four years and upwards, being the time intervening between the time of bringing the action and the trial of the case. Before the examination of the witness, Mrs. Black, on the subject of the deed said to have been seen by her, from plaintiff’s father to him for the negro Prank, proof of a notice to defendant, to produce it on the trial, was given, and in answer to this notice the defendant’s ooxmS0l offered in evidence what was 'termed a return to this notice, in the form of an affidavit made by him; but an objection to its admissibility was sustained by the Court.
    The defendant’s counsel gave notice of a motion in this Court for a nonsuit on the following grounds:
    1. Because the plaintiff’s counsel was an incompetent witness.
    2. Because the admission, proved by him, was not evidence of a conversion by ■the present defendant.
    3. Because there was no other proof of conversion.
    A motion was also made for a new trial, the three first grounds of which are a repetition of the preceding, to which the following are added, to wit:
    4. Because there was not sufficient evidence to rebut the plea of the statute of limitations.
    5. Because the damages given against the defendant, so far as related to the hire of the negroes, are excessive and unreasonable, inasmuch as he had not the possession or control of them, nor did he receive the profits of their labor till after the death of Williamson, his co-executor.
    6. Because the presiding judge erred in directing the jury, that one executor, though he had never had the possession of the property, and had not managed or superintended it at all, was to be considered, in a question of conversion, as equally possessed with his co-executor who had the possession of it.
    7. Because the presiding judge erred in directing the jury, that he who advises and counsels another to convert property of a third person, is equally guilty of a conversion.
    8. Because the judge had erred in directing a jury, that a delivery was not necessary to the validity ¡of a parol gift; and leaving it to them to infer a gift from circumstances, not amounting to delivery; whereas it is submitted, that what constitutes a valid gift is a matter of law.
    9. Because the written return of the defendant, to the notice to produce the deed, on oath, should have been received.
    The presiding judge reported, that his charge to the jury, exceptions to which constituted the cases of the 6th, 7th and 8th grounds, was misconceived, so much so as to- change its character in almost every feature. That on the subject of these points, his instructions to the jury were, that a party might be guilty of a conversion without having ever had the actual possession or use of a chattel; and that the same circumstances which would make a man a trespasser, who was not the actor, would aláo make him guilty of a conversion; and as he who advises and abets a trespasser is guilty of a trespass, so he who advises and abets a conversion is guilty of a conversion. And although there was no positive evidence of an actual use or possession of the negroes in dispute, on the part of the defendant, yet regarding him as the co-executor of Williamson, as to whom the proof of a conversion was conclusive,* equally bound to defend the interest of the estate in the property committed to their care; regarding him also as the more competent in the conduct of a corrrse of litigation, in which those rights were involved, it did not require any violence of construction to convert the admission made by him, into an acknowledgment of the fact that it was concerted between him and Williamson to defend that interest to the last extremity, or in other words, that it was under his instructions and with his consent that the negroes were withheld. That a property in a chattel could not be transferred from one to another but by deed or delivery, but that by delivery was not meant an actual manual delivery in all cases; but that any circumstance amounting to a clear demonstration of the intention of the one to transfer, and of the other to accept, and which put it into his power or gave him the authority to take possession, was all that was necessary; and left it to them to determine, whether the evidence proved such a case.
    
      
       Ante, 120 note.
    
    
      
      
         See Hatton v. Banks, ante, 221-3, and cases there cited. R.
    
   The opinion of the Court was delivered by

Mr. Justice Johnson.

The grounds of the present motion present the following questions for consideration:

1. Whether the plaintiff’s counsel was an admissible witness ?

2. Whether there was sufficient evidence of a conversion on the part of the present defendant?

3. Whether the evidence warranted the jury in finding in favor of the plaintiff on the merits ?

4. Whether the endorsement of the sheriff on the writ, of the time when entered in his office, was admissible to prove the commencement of the action ?

5. Whether the sworn return of the defendant to the notice, to produce on the trial the deed from the plaintiff’s father to himself, for the negro Frank, ought or ought not to have been rejected? And these I shall proceed to consider, without regard to the order in which the grounds are stated in the notice.

The question as to the excess of damages, is involved in the question of conversion; as it is admitted, that the damages are not excessive if the conversion had not relation to the commencement of the action. The question on the statute of limitations is equally involved in the admissibility of the sheriff’s entry on the writ; for if it was evidence of the commencement of the action, the plaintiff was not barred.

1. The objection to the competency of the plaintiff’s attorney rested on two grounds: 1. Because he was interested as attorney to the extent of his costs, and therefore incompetent. 2. Because he was the security of the plaintiff for costs in the event of the aotion being determined against him. On these objections there can, I think, be but one opinion. On the first, that it cannot be supported; for, although the least possible direct pecuniary interest in the *event of a cause, renders a witness incompetent, yet it is every day’s practice to admit the attorney of record; and this is the first objection I have ever heard made to it. But it is a matter of much delicacy, and one which the profession ought, and do, much to their credit, usually avoid, when it is not indispensably necessary. Perhaps, too, the legality and propriety of this practice may be founded and justified in the legal implication, that the client alone is responsible to his attorney, whatever may be the event of the suit. I think there is as little doubt that the second objection ought to have been sustained; and so the Court had decided; but on the offer of the plaintiff’s attorney to obviate both this and the other objection, by the means stated in the report, they were not then persisted in; and it would be doing an injustice to the plaintiff and practicing on the Court, if I may so express it, to permit the objection now to prevail.

2. The action of trover is the general substitute of the action of detinue, and is that form of action in which, in this country, the right of individuals in a personal chattel is usually determined; and although the conversion may be said to be the gist of the action, and therefore must necessarily be satisfactorily proved, yet, when from all the circumstances it is evident that the question of right is the true question in dispute, it forms rather an unimportant feature in the case ; and it will be seen, by reference to authorities, that every assuming to dispose of the property of another, or the least intermeddling with it, in a maimer subversive of the dominion which the owner has over it, is sufficient evidence of a conversion. (6 Bacon’s Abridg. 679, 680-1. Bristol v. Burt, 7 John. Rep. 254. Shotwell v. Few, Ib. 302. Durell v. Mosher, 8 John. Rep. 445.) It is said, however, that the admission of the present defendant did not go to warrant the conclusion that he did in any manner concern in, or otherwise intermeddle with the negroes in dispute, and amounting only to an admission of a conversion by Williamson. But it ought to be recollected that he was co-executor of Williamson; that his advice and consent would be resorted to in all questions of such importance to the estate, and that he had no express authority to make such an assent on the part of Williamson, and add to this the terms of that assent, “That is sufficient, you may dismiss the witness,” would I conceive, though not perhaps necessarily, authorize the conclusion, that the refusal to deliver up the property was matter of understanding between Williamson and himself. I think this conclusion not a little strengthened by the circumstances, that the management of the estate devolved on them as executors, and it was their bounden duty to defend the property committed to their care to the last extremity; and that they would have been wanting in their duty if they had delivered it up without more conclusive proof of the right of the plaintiff, than the trial of this case has developed. But further, súpose instead of admitting a conversion he had admitted the property the plaintiff, xbut denied the conversion, would it have been insisted that the admission had relation to Williamson only, and not to himself? I apprehend not. And it appears to me the cases are parallel. Errant these considerations it follows, that if this is any evidence of a conversion, although the admission was made after, it cannot be otherwise regarded than as having relation to the commencement of the action. They were, moreover, questions for the consideration of the jury, and they have determined them in favor of the plaintiff.

3. I have always regarded parol gifts to children, unaccompanied by a distinct delivery and possession, with great jealousy, and always feel it my duty to caution the jury not to support them except on the most satisfactory proof; and if I were now called upon to say what the law should be, I would unite heart and hand in rejecting them. In their nature they are calculated to excite strife and dissensions among those bound together by the strongest ties of policy and nature and are, upon the whole, so easily conjured up out of the most unimportant circumstances, and so difficult, if not impossible, to resist, as to render it almost impossible for a parent safely to permit a child, even in playfulness, to set up an unmeaning claim to any article of property. Who is it that has children that has not yielded a playful and willing assent to the claims of them, to almost every article of property they possess, and where is the parent so stern as to withhold it ? I venture to assert there are few, if any. But the doctrine is so interwoven with the administration of the laws in this State, and those claims have so long received the sanction of the courts of justice, that I feel it riveted on us beyond the means of loosing the fetters, without too much violence to the system. If, therefore, evils be found to exist in it, it belongs to the Legislature and not this Court, now to root them out. As to the sufficiency of the evidence to support the claim of the plaintiff, in respect to the validity of the several gifts in this case as relates as well to the fact of the gifts having been made as to the delivery, it is only necessary to give as authority a few cases which have recently received the sanction of this Court. In the case of Neely v. Feemster,(MS.) tried in York district and brought up to the Constitutional Court in Columbia, and decided there a few years ago; there was no proof of an actual delivery, and the principle circumstance relied on, to prove both the gift and the delivery, was, that the donor when called on by the midwife to be paid for her services for attending a negro woman when she lay in, was told by him that she must go to the plaintiff, who was his son-in-law and who lived in the house with him, as she belonged to him. In the case of Brashears v. Blasingame, decided in this Court at Columbia about a year since, there was no proof of an actul delivery, but the repeated declarations of the donor, that he intended and had given the negroes in dispute to his daughter, were held to be sufficient evidence of a gift; and the Court ordered a new trial, because the jury had found contrary to this evidence. *If, then, those cases are to be regarded as authority, it results that the jury were at liberty to draw the conclusion which their verdict implies, and however hostile my judgment may be to the doctrine on which it is predicated, I should not feel warranted in disturbing it. In this case there was no proof of any actual manual delivery, but in some cases the negroes were present, and when the gift was made, and from their manner would doubtless have authorized the plaintiff to have taken the immediate possession, without incurring the danger of committing a trespass.' And in every instance there was the repeated declarations of the plaintiff’s father, that he had given: so that the jury, as in the preceding cases, were authorized to infer from them everything that was necessary to the consummation of a legal gift, including necessarily the intention to give, the act of giving, the delivery, and the consent to accept.

Gritnke, for the motion. Chipman and Martin, contra.

4. I have always been in the habit of considering the endorsement of the sheriff on a writ as his original entry, and forming a part of the record, and that his entry in his book was a mere abstract from it; and I am yet unable to see any reason why it should not be so regarded. It is urged, however, that it is more exposed to the danger of alteration than the entry in the book, because any attempt to make an alteration there, as to date, would be exposed by the preceding and subsequent entries. But regarding it as a record, the law has placed it under the control of an officer, against whom, at least, such a fraud would not readily be presumed. But if the book of the sheriff is calculated to expose any imposition, it is equally in the power of either party to produce it, and does not, therefore, furnish any objection to the admissibility of the entry on the writ.

5. The object of giving a party notice to produce a paper wliich is in his possession, is merely intended to let the defendant into proof of its contents, on showing that it was in his possession, and of putting it in the power of the opposite party to produce the best evidence which the nature of the case admitted of. But the Court do not possess the power of compelling a party, in ordinary cases, to produce the paper. Phil. 336. It is therefore not incumbent on the defendant to produce it, or to give any reason or excuse why he will not. The contents cannot be gone into without proof that it is in Ms possession, or that it has been lost. Any answer that he could make to such a notice, and which the law does not imply, must therefore be irrelevant and consequently inadmissible. The contents of that offered in tliis ease did not transpire, but if it contained nothing more than was implied, it was unnecessary, and if more, it was equally inadmissible. The motion must therefore be refused.

Justices Bat, Nott, Gantt and Richardson, concurred. 
      
       10 Rich. 461.
     
      
       1 Rich. 318; 4 Rich. 375; 6 Rich. 34.
     
      
       Ante, 339.
     
      
       Ante, 223.
     