#### *Fitzhugh’s Administratrix v. Beale.

Argued Thursday, March 4th, 1813.

i. Detinue — Evidence—Insufficiency*—Case at Bar.— T; detinue for a slave, the plaintiff proved that the defendant (whose wife was entitled to the slave in question, as part of her dower of the estate oí a former husband) had given said slave to the plaintiff’s wife when a feme sole, upon condition that her brothers (in whom the reversionary interest was) would join in a deed conveying to her the absolute title; that they promised and agreed to execute such deed, but never did, and one of them afterwards refused to do sor upon a demurrer, this evidence was adjudged insufficient to entitle the plaintiff to recover.

Richard E. Beale brought detinue in the County Court of Prince William against John Thornton Fitzhugh for a negro-woman. The parties being at issue, two trials were had. On the first, a juror was withdrawn : at the second, the defendant objected to the admission of the deposition of a certain Catharine Alexander, it being proved that she was a resident of the town of Centreville in this state, and the plaintiff failing to prove her inability to attend the court ; but the court overruled the objection, because the plaintiff proved that the defendant’s counsel consented that said deposition should be taken, and it had been read at the first trial without exception ; whereupon a bill of Exceptions was tendered and sealed. The defendant also, (without exhibiting any testimony on his part,) demurred to the plaintiff’s evidence, which, consisting of the said deposition of Catharine Alexander, and of the testimony of another witness, was, in substance, that the negro woman in question was one of the dower slaves of the defendant’s wife, whose daughter, Miss Eoote, became the wife of the plaintiff ; that, before the plaintiff married her, the defendant had given her the said negro woman, upon condition that her brothers Richard Foote and William Foote (in whom the reversionary interest was) would join in a deed conveying to her the absolute title; that they promised and agreed to execute such deed, but never did, and one of them afterwards refused to do so ; that the said negro woman, by con*78sent of the defendant and of Miss Foote, was put into the possession of Catharine Alexander, to use for her victuals and clothes, where she was to remain until her brother should convey as aforesaid ; that she was hired by a Mr. Grigsby to a Mr. Peake for the benefit of Miss Foote, the year in which the latter was married, and was some time afterwards in the plaintiff’s possession, with whom she remained until Mrs. Beale, about one year after her said marriage, went with her to the house of the defendant, *and died there within a month thereafter.; from which time, the said negro woman remained with the defendant, who refused to give her up to the plaintiff ; that more than five years elapsed from the time of the gift or loan, to that of the death of Mrs. Beale ; but that the defendant had a right at any time to take the negro woman away.

Upon this demurrer, the County Court rendered judgment for the plaintiff, which being affirmed by the Superior Court of law, and the defendant having departed this life, his administratrix obtained a writ of supersedeas from this court.

Wirt for the plaintiff in error.

Wickham for the defendant.

Friday, January 28th, 1815,

*

See monographic *note*on and Replevin” appended to Hunt v. Martin, 8 Gratt. 578.

the president pronounced the court’s opinion, that both judgments be reversed, and judgment entered for the plaintiff in error; the evidence demurred to by him not being sufficient in law to maintain the action, even admitting the deposition of Catharine Alexander to have been legal evidence ; consequently, the demurrer ought to have been sustained, instead of being overruled.