
    
      Henry Parris vs. Rolly Jenkins.
    
    Where a party’s act is given in evidence as raising a presumption unfavorable to his rights, he may shew that he did the act in consequence of a negro’s declarations, and, by way of explaining the'act, shew what those declarations were.
    The declarations of a negro may be given in-evidence, when they constitute a part of the res gesta.
    
    
      Before Wardlaw, J. at Greenville, July, extra Term, 1845.
    This was an action of trover for a negro woman, Emily, and her three children. The question was as to the title.
    The negroes originally belonged to the plaintiff. In 1837 the defendant married the plaintiff’s daughter, and in 1838 Emily and her children went, in some way unexplained, into his possession. The plaintiff and defendant lived fourteen miles apart. In March, 1841, Emily, with her children, was brought by a servant of the plaintiff in a wagon from the defendant’s to the plaintiff’s. They remained at the plaintiff’s about -two months, and then returned to the defendant’s. A witness for the defendant testified that, in the spring of 1841, when the wagon of the plaintiff was brought to the defendant’s for Emily, the driver, a negro of the plaintiff, told the defendant that his master had sent for Emily to help a little while about his crop, as he was backward. This statement of the negro was objected to, but his Honor held that it was admissible, as a part of the res gestee,, explanatory of the defendant’s act in sending Emily when she was sent for.
    A good deal of other testimony was introduced on both sides, which left it very doubtful whether the negroes went into the defendant’s possession as a gift, .or as a loan. The case was submitted to the jury, who found for the defendant.
    The plaintiff appealed, on the ground, inter alia¡ that the declarations of the negro who went for Emily were incompetent as evidence of the message actually sent by the plaintiff.
    
      Waddy Thompson, for the motion. •
    Perry, contra.
   Curia, per Wardlaw, J.

Evidence of the message delivered' by the negro driver was received, not to shew that such message was sent, but to explain the defendant’s, act in sending the woman, and rebut the presumption unfavorable to his rights that might have arisen from that act unexplained. Parris may have not put those words into the negro’s mouth, but the negro used them; and were they not calculated to produce an effect upon Jenkins? It is just as if Jenkins, adopting the words of the negro, had said, when he sent the woman — “ I send her to help a little while, because my father-in-law is backwardand so these words are part of the res gestee — an explanation, by cotemporaneous acts or declarations of the motives or objects of the principal act, which would otherwise be of ambiguous or contrary import. The words of a negro are at least as significant as the cry of a brute animal, or any sound proceeding from inanimate substances ; and if any sound whatever, cotemporaneous with an act, or nearly connected with it, might serve to give meaning to the act, it would be admissible, not only to shew that there was such sound, but, if important, as nearly as possible to describe it. We all daily begin and quit and change occupation, command and countermand, resolve and act, according to information received from negroes ; it. would be impossible for us to explain our conduct without reference to the fact that such information was given ; and it would be often unjust, if an act should be proved against us, and we should not be permitted to shew, by the same or some other witness, what was said which would explain the act. The jury were distinctly told that the words of the negro were not to be taken as evidence of the truth of what he said, but only as a circumstance to be considered in weighing the eifect to be given to the act immediately following them. If the jury have given to the evidence an influence it should not have had, that is but an ordinary misfortune necessarily incident to jury trials. We cannot know the process by which the jury have attained their conclusion, but must suppose that, being properly instructed, they have done their duty. Motion dismissed.

O’Neall, Evans, Butler and Frost, JJ. concurred.  