
    Executors of Jane M’Kane v. John Bonner.
    Columbia,
    Dec. 1828.
    It is only in extreme cases, as where the verdict is so palpably against evidence, as to leave no doubt but that it is erroneous, that the Court will interfere with the decision of a jury upon questions of fact.
    Where there has been plenary proof of a gift, subsequent declarations of the donor, that a gift was not intended, are inadmissible; And although one of the witnesses testify to subsequent declarations of the donor in favour of the gift, yet if they were not elicited by the questions of counsel, and could add nothing to the weight of the proof, they do not furnish a ground for the admission of other declarations of the donor of a contrary import, in reply. But the Court should instruct the jury to dismiss the subsequent declarations in favour of the gift from their consideration.
    Where the gift of a slave was absolute in its terms, and accompanied with delivery of possession: Held, that the reservation of a right to “borrow,” under certain circumstances, or to receive “ something like hire,” if the donor should stand in need, was a condition subsequent, and did not invalidate the gift, although made by parol.
    Tried before Mr. Justice Gantt, at Fairfield, Spring Term, 1828.
    Trover for a slave named Maria.
    The original right of property in plaintiffs’ testatrix, and the conversion by defendant, were proved ; but the latter relied upon a gift to his wife, who was a grand-daughter of the testatrix. Several witnesses testified, that sometime in August, 1820, the testatrix, in their presence, f°rn,a% “gave and delivered Maria to Mrs. Bonner forever.” Maria was then but six years old, and the testatrix said, that she intended to give Mrs. Bonner a negro when she died, and she might as well take Maria now, and bring her up to her mind. Mrs. Bonner took the girl home with her, and she and her husband, the defendant, had remained in possession ever since. On their cross-examination, the witnesses further testified, that when the testatrix made the gift, she said, that if ever she took up housekeeping again, she must borrow Maria; or if she stood in need, Mrs. Bonner must pay her something like hire, when Maria came to be worth any thing.
    One of the witnesses also voluntarily testified to declarations made by the testatrix, subsequently to the gift, and in confirmation of it. The plaintiffs, in reply, offered evidence of other subsequent declarations of the testatrix, of a contrary import r and for the admissibility of these declarations, the case of Sims v. Saunders, Harp. 374, was relied on. The presiding Judge held them inadmissible, the declarations of an opposite character having been volunteered by the witness, and not elicited by the questions of counsel; and they added nothing to the proof of the gift, which was already full and complete. His Honor, however, charged the jury to dismiss all the subsequent declarations from their consideration.
    On the part of the plaintiffs it was proved, that in 1824, Mrs. Bonner gave the testatrix a note for ten dollars, for the hire of Maria for that year, and in 1825 a note for twelve dollars; and that the testatrix was not in necessitous circumstances. The testatrix did not die until 1826, and there was no evidence of any note or other obligation given for the hire of Maria for that year. The will was also introduced, and proved, in which it appeared, that the testatrix had bequeathed Maria to other persons.
    The presiding Judge instructed the jury, that the question was, whether the testatrix had, or had not, given Maria to Mrs. Bonner; that it depended entirely upon the evidence, and was exclusively for their determination. The jury found for the defendant; and the plaintiffs now moved to set aside their verdict, and for a new trial, on the following grounds.
    
      -1. That under the circumstances of the case, and in reply to -the defendant’s evidence, the plaintiffs should have been permitted to give in evidence the declarations of testatrix in contradiction of the alleged gift.
    2. That the testimony established no more than a loan, or, at most, -a gift in futuro, and the latter, being by parol, was altogether invalid.
    3. That the reservation of a right to resume possession, and to require hire, were utterly inconsistent with the notion of an absolute transfer in prmsenti of the right of property.
    4. That his Honor erred in submitting the question exclusively to the determination of the jury; and that the verdict was contrary to law, and against the weight of evidence.
    J. B. M’Call, for the motion.
    C. Clarke, contra.
    
   Johnson, J.

delivered the opinion of the Court.

The question, whether the plaintiffs’ testatrix had, or had not, given the negro in dispute to the defendant’s wife, was one purely of fact, of which the jury were the legitimate judges. The Court does, it is true, in extreme cases, exercise the power of setting aside a verdict; but it is only in those cases, where the verdict is so palpably against evidence, as to leave no doubt but that it is erroneous. The plaintiffs here have no such claim upon the Court: The gift was fully and distinctly proved, and if the witnesses were worthy of credit, of which the jury were the judges, there could be no doubt about the defendant’s right to a verdict. So that the case is narrowed down to the two questions of law which are made in the brief. They are : 1st, whether evidence of the declarations of the donor, subsequent to the gift, that she had not given, ‘were admissible : 2d, whether reserving hire, and the right to resume possession of the negro, if the donor should require it, vitiated the gift.

There is, perhaps, no principle better settled, than that when one has entered into a contract, made a gift, or done any other act, by which he is bound, he cannot, by any subsequent act, or declaration of his own, avoid or discharge himself from it. If then the gift, by the testatrix to the defendant’s wife, was proved, her subsequent declarations were, upon general principles, inadmissible, for the obvious reason that they were irrelevant. They were, therefore, properly rejected.

Cases do sometimes arise, in which proof of the gift is made up of repeated declarations of the donor, running through several years; or such declarations are brought in, by the party claiming under it, in support of doubtful evidence of the gift. In these, and such like cases, such declarations are admissible, in reply to such evidence. The case of Sims v. Saunders, Harp. 374, is an illustration of this ; and the counsel for the motion claims to have been intitled to introduce the declarations in this case, in reply to the evidence of Peter Gamble, who spoke of the after declarations of the donor, affirmatory of the gift: But the Judge reports, that these were volunteered by the witness, and were not elicited by any question put by the counsel, but on the contrary, were disclaimed by him. They were also taken away from the jury, as far as the authority of the Judge could effect it; and in all probability were not taken in to account by them. If every irrelevant and improper expression of a witness, when giving evidence, should be held a sufficient ground for the admissibility of evidence in reply, it would be difficult to put an end to any suit in which witnesses were sworn. Every one, who has any experience, must know how difficult it is, to confine a witness to the precise question in issue, and to restrain him from telling all he knows of the matter, whether admissible or not: This arises as well from his ignorance of what is, and what is not legal evidence, as from his belief, that he is bound by his oath to speak all that he knows of the matter. All that the Court and jury can do, is to judge of the case independently of such evidence ; and it will be presumed, that they did so. If it should appear, that it was suffered to operate on the case, it would doubtless furnish a good ground for sending the case back; but here the proof was plenary without it.

The affirmative of the second position is, I think, equally untenable. The evidence, if it establishes any thins', proves incontestably an absolute gift, consummated by an actual delivery; and the foundation of the proposition is, that the reservation of hire, and the right to resume the possession, were inconsistent with the gift: and hence it is concluded, that the testatrix never parted with the property in the negro.

'Hiere is no doubt about the position, that if one parts with the possession of property under any circumstances whatever, reserv-. ing to himself the unqualified right to resume it, and the dominion over it, at pleasure ; the property in the thing still remains in him. But it would appear to me, impossible to draw this conclusion, from the facts proved on the trial of this case. The gift, as before remarked, was absolute and unconditional. The reservation of the right to borrow, if the donor should again take up house-keeping, or to receive something like hire if she should stand in need of it, was a condition, not precedent and dependent, but subsequent and independent. It imposed on the donee an obligation, which she was bound to fulfil; and the subsequent payment of hire, so far from avoiding the gift, was the performance of the condition, upon which it was made, and operated to perfect it, if any thing was wanting.

Motion refused.  