
    Dunnington's Ex'r. vs. Dunnington's Adm'r.
    Appeal from Charles County Court, from a judgment in favour of the defendant below, (now appellee,) in an action of replevin brought against him on the 50th of January 1804, for a negro boy named Jesse. The defendant pleaded property, non cepit infra, tres annos, and aUio non acgrevit infra tres annos. To these pleas there were the general replications, and issues were joined. At the trial, the plaintiff proved by a competent witness, that the negro boy in dispute was the properly of William Dunningfon, senior, the plaintiff’s testator, and was loaned by him to his son William Bunnington, junior. The plaintiff then gave in evidence, without objection, the will of William Dunnington, senior, dated the 8th of September 3 79!, rtciting, that a£a3 to' what worldly estate it hath pleased Almighty God to bless me with, I dispose of in the following manner.” Sundry devises and bequests are contained in this will) of lands and negroes, but the negro boy Jesse is not named therein. The devise to William Dunning-ion, junior, is of land, and also a negro lad called John; and the testator directed that the balance of his estate should be divided between his sous PMsr ami FranbU'- The íáí- . . " i ter lie appointed his executor. The defendant then offered to read >in evidence the deposition (if a certain Kilty Bloxham, taken under a commission. She was admitted to be the daughter, and one of the representatives of Willi'am Bunnington, junior,' and of Eibctnor Bunnington the defendant’s intestate; and also to be married to a certain James Bloxham. Hef deposition stated, that she was present at a conversation which took place between her grandfather and her father. Her father said to her grandfather, that he did not think lie had used him well, that he had given to each of his other children a nc" gro, and had never given hint one; to which her grandfather replied, yes,' William, Í have; [gave jm Jesse. Her father replied, I did not know you had given him to' me. Her grandfather again replied, yes, WilliamI give him to you. This conversation happened 3 yeafS and 4 or 5 months before the death of hef grandfather. That Jesse was upwards of 3 years m her father’s possession, before hef grandfather died,- and was in his possession' at the time of the gift above stated. That from the time of the gift the boy was employed, kept and considered,-'as her father’s Slave. And the defendant then, to render the testimony in this deposition competent, produced the receipt (of Janies Bloxham, the husband of the deponent, dated the 30th of July Í805, acknowledging to have received ot Eleanor Bunnington, administratrix of William Bunnington, deceased, all and every part and parcel of his wife, Catharine Bloxhdm’s proportion of her father’s, the said William Bwminglon’s personal estate. The plaintiff, however, objected to the competency of the evidence. But the courts [ Key and Clarke, A. J.j were of opinion that it was admissible,- and allowed it to be read in evidence tothejurysThe plaintiff excepted,- and the verdict and judgment being against him, he appealed to this court.
    
      ^In replevin by pmiht 1C*-, administrator, f<*r a ne&TO hoy, the tie* icmiam, for the purpose of prov— m«; a gift of thft negro hoy, by W to ,T, vliose admin istratrix K was in her üítMirne, oífeted in cudem-e K, t?ie wife of Ut which X \wt<? (Tie daughter and on<* of rhe representatives 'of J and oí* 15, and co restore Iter competency, pare in evidence a receipt gave» by B to 15, as the administratrix of.f, for hh wife’s share of her di ceased ft.ther J’s estate Ifeld, that K"s testimony was inadmissible*
    
      The cause was argued before BüOhanaíí, Earle, and Johnson, J. by
    
      T Buchanan and Mctgnuler, for the' Appellant;
    and by
    
      C. Dorsey, for the Appellee.
   JUDGMENT REVERSED, AND KIOCÍEDENDO AWARDED*  