
    
      Henry Stone vs. John Stroud.
    
    Whore a. parol gift of a negro is claimed by a son-in-law, and be relics not alone upon Ms possession, but also upon declarations of the father-in-law made after tbe supposed gift, be, the father-in-law, may give in evidence his counter declarations, not made litem motam) to show that he bad not given.
    
      Before Glover, J., at Chester, Spring Term, 1853.
    The report of his Honor, the presiding Judge, is as follows :
    “ The action was trover to recover damages for the conversion of a negro named Alfred, given, it was alleged, by the defendant to the plaintiff after his marriage with defendant’s daughter and before December, 1851, when she died leaving an infant child.
    
      u The attention of the jury was directed to two enquiries :
    
      “ 1. Was there a gift? and if so,
    “2. Was it absolute or qualified at the time it was made ?
    “ The determination of these questions depended on the sufficiency and weight of the evidence, which was for the consideration of the juiy, and was submitted to them with the remark, that what the defendant said or did afterwards would not control the terms of the gift and make that a loan or a trust which was at first absolute.
    “I stated to the jury, that it had been long settled in South-Carolina, that when parents suffered personal property to go into the possession of their children after, and especially at, marriage, it is prima facie evidence of a gift; but that the presumption of a gift, arising from such a possession, was not necessary in this case, as the plaintiff had introduced the declarations of the defendant to establish the gift.
    
      “ The jury found for the plaintiff the value of Alfred and his hire.
    “ The defendant has given notice of his intention to move for a new trial at the next Term of the Court of Appeals, the grounds of which embrace alleged errors of the presiding Judge in the rejection and admission of evidence, and also his misapprehension of the defence.
    
      
      “ They will be considered in the order in which they are stated.
    “ 1. The plaintiff having established the absolute gift of Alfred by the declarations of the defendant, made to three several witnesses at different times, any declarations made by him after-wards showing that he had not given or had qualified the gift, were rejected. If the evidence establishing the gift had been less satisfactory, the ruling might have been otherwise. The defendant was allowed to introduce his declarations made at the time and before Alfred was sent, and his daughter was permitted to state a conversation between him and his wife before Alfred had been sent,
    “ 2. The defendant offered evidence to shew that Alfred was sent to the plaintiff in February, 1851 — that he was “ left for a while ’til the defendant could get his business fixed otherwise”— and that what property he gave to the plaintiff he intended should be made over to his wife and child. It was in reply to this evidence, which was offered to prove a qualified gift, that the plaintiff was permitted to examine other, witnesses.
    
      “3. The presiding Judge did state to the jury, that the questions for their considefation, as he apprehended them from the testimony and the argument of counsel, were — 1. Was there a gift? 2. Was it absolute, or qualified and restricted ?
    “ In this he may have done injustice to the argument of counsel, and has, probably, misapprehended, in part, the grounds of the defence. A review of the whole evidence, however, has not removed the impression, that no loan was contemplated. The defendant has since the death of plaintiff’s wife, actually executed a deed to one Knox, in trust for plaintiff’s child, thereby carrying out the purpose which, it is alleged, he originally contemplated, of making a qualified gift. The third ground of appeal implies what the defendant’s evidence authorized the presiding Judge to conclude, that some future and “ formal settlement with limitations ” was intended and not a loan of Alfred, who was permitted to remain in the possession of plaintiff from the time he was sent, in February, 1851, till the death of plaintiff’s wife, in the succeeding December.”
    The defendant appealed, and now moved this Court for a new trial on the grounds:
    1. Because the plaintiff having introduced the subsequent declarations of defendant to establish a gift, his Honor erred in rejecting the acts and declarations of the donor showing that he had not given.
    2. Because his Honor permitted the plaintiff, in his reply, to. offer evidence that was notin reply to any offered by defendant.
    3. Because his Honor misapprehended the grounds of defendant’s defence, and stated to the jury, in his charge, that defendant did not rely on the defence that he had placed the negro in possession of plaintiff as a loan ; whereas it was stated by the counsel in opening the defence and so argued before the jury, that the defendant relied on the fact that the negro was put in possession of plaintiff as a loan, to wait upon his wife in her illness and to remain until he could carry out his purpose of giving him to plaintiff’s wife by formal settlement with limitations.
    
      Dawkins, Melton, for the motion,
    cited, on first ground, Sims vs. Saunders, Harp. 374 ; McKane vs. Bonner, 1 Bail. 113 ; & Humph. 773 ; 1 Dev. Eq. 55; Newman vs. Welbourne, 1 Hill Ch. 10.
    
      McAlilley, contra,
    cited Byrd vs. Ward, 4 McC. 228.
   The opinion of the Court was delivered by

Whitner, J.

I propose to consider the ground of appeal which refers to the rule observed by the Judge on circuit in reference to the subsequent declarations of the defendant. These were heard in part and excluded in part. Whether the declarations, to which the witnesses called would have testified, would at last have been competent, will depend on future disclosures.

That injustice may not be done, further information must be had.

The fact to be ascertained was, whether a parol gift had been made. If the plaintiffs had relied on proof of gift by delivery alone, or on possession of the chattel alone, as evidence of the gift, a rule excluding subsequent declarations would have been affirmed. The proposition must be undeniable, that a party cannot vary the legal consequences of his own act by his own declarations subsequently made. The rule, I apprehend, would be the same, although antecedent declarations of an intention to give, or cotemporaneous admissions of a gift, had been received. Newman vs. Welbourne, 1 Hill, Ch. 13.

In this case the party setting up the gift, relied, in part, on possession as affording presumption, and this he thought proper to fortify by subsequent declarations that a gift had actually been made. In other words, the proof arising from the act was deemed inconclusive, and a corroboration was had by resort to another species of evidence. In such a case, on the authority of Sims vs. Saunders, Harp. 374, approved in Ess’rs McKane vs. Bonner, 1 Bail. 113, “The conduct and conversation of the donor to ascertain his intention, ought to be given entire,” and other subsequent declarations were heard.

Where declarations have been heard, counter declarations cannot be excluded for the reason that the mind has reached a conclusion as to the truth of the case. This the verdict of the jury alone can reveal. Such evidence is somewhat analogous to the testimony of different witnesses to the same transaction. The rule adopted by our Ctfurt must certainly be administered, however, with great caution. Such declarations are clearly incompetent if made post litem motam. The intermediate points, or circumstances, justifying exclusion, are not easily defined. Practically it will be found, doubtless, that the discrimination of the jury as to the proper weight and influence of such conflicting testimony, must be mainly relied on from the ■necessities of the case.

The motion for new trial in this case is granted.

O’Neall, Waedlaw, Frost, Withers and Glover, JJ.s concurred.

Motion granted.  