
    William M’Cluney v. Elizabeth Lockhart.
    Columbia,
    Dec. 1828.
    A declaration by the alleged donor of an intention to give, and subsequent possession by the donee of the thing intended to be given, are sufficient to authorize the presumption, that the gift was actually made.
    The Court will not consider a motion to set aside a verdict on the ground of alleged misconduct in the jury, unless the jurors have been previously served with copies of affidavits, setting forth the facts, on which the motion is grounded.
    Tried before Mr. Justice Gaillard, at Chester, Fall Term, 1828.
    Trover for a slave.
    The plaintiff claimed by a gift from the defendant, whose daughter he had married. About a year after his marriage the slave had been sent, or came into his possession, and there was evidence of a previous declaration by the defendant, that she intended the slave for the plaintiff’s wife. The plaintiff remained in possession until the death of his wife, when the slave returned to the defendant, who retained possession after demand made by plaintiff.
    At a former trial the jury had found for the defendant, and their verdict had been set aside, vide 4 M’C. 251. At the second trial there was, as on the first, contradictory evidence as to the fact, whether a gift, or a loan, had been intended. The presiding Judge charged the jury, that the case presented a question of fact, to be determined by them from the evidence; that under the rule laid down by the Court of Appeals, a gift might be presumed from the fact of the slave’s being sent to the plaintiff so shortly after his marriage; and that besides, the declaration of an intention to give at one time, and the possession by plaintiff afterwards, were sufficient of themselves to authorize the presumption of a gift. But that this presumption was not conclusive, and it was for the jury to decide upon the character of the plaintiff’s possession.
    The jury found for the plaintiff; and the defendant now moved to set aside their verdict on the following grounds.
    1. That his Honor erred in charging the jury, that a declaration of an intention to give at one time, and possession by the donee afterwards, were sufficient to establish a parol gift.
    2. That the jury, after the argument, and the charge' of the presiding Judge, and after they had retired to the room, without the knowledge or leave of the Court, called and examined a witness, or witnesses, on the part of the plaintiff.
    Clendtnen, for the motion.
    Williams, contra.
    
   Colcock, J.

delivered the opinion of the Court.

This is a case involving a mere question of fact; for the charge of the presiding Judge cannot be deemed erroneous on the ground taken. In the abstract, the position is certainly correct, that a declaration by the alleged donor of an intention to give, and a subsequent possession by the donee of the thing intended to be given, create together a strong presumption that the gift was actually made; and it was for the jury to determine, whether it was rebutted by the testimony produced by the defendant. The evidence for the plaintiff is as strong as that on which many verdicts have been sustained by this Court.

With regard to the second ground taken in the brief, the alleged misconduct of the jury; as copies of the affidavits, setting forth the facts on which the motion is grounded, have not been submitted to the jurors, the Court cannot enter into the consideration of it.

Motion refused.  