#### William Morisey & Wife *v*. David Bunting, sen’r.

From Sampson.

In a parol gift, deliberation and sedateness, on the part of the donor, is only evidence of the *animus disponendi.*

It seems, that if *non deiinet*and the *statute of limitations*are both pleaded, and the jury find “ all the issues in favor of the Defendant,” this Court will not examine the correctness of the charge on the latter plea.

When B. said he had given negro C. to A. held, that the will of B. of that date, isjadmissible to explain his declarations.

Detinue for negro slaves, pleas *non deiinet, statute of limitations.*— On the trial, before Norwood, Judge, the Plaintiffs claimed title by a parol gift made in 1802 from the Defendant to the Plaintiff, *Ann*bis daughter, and offered evidence of such gift. The witnesses who testified thereto, stated that Defendant said he would keep the slave till *Ann*married, or during his life, and that at this time, the Defendant had been drinking until he felt it, though not drunk. The Plaintiff then proved by a witness, that the Defendant in 1812, said he had given the slave to his daughter *Ann,*upon which the Defendant called another witness present when this declaration was made, who proved that afterwards, on the same day, the Defendant said he had made a will, and Defendant’s Counsel offered to give in evidence, the will referred to, by which the negro was given to *Ann.*This evidence was opposed, but was received by the Judge, not as direct evidence as to the title, but as a matter proper to be considered by the Jury, together with the declaration of the Defendant, that he had *given*the negro, in order to ascertain his meaning in that expression. It was further in evidence, that the slaves in question, remained in. the keeping and under the control of the Defendant after the gift, up to the time of *Ann’s*intermarriage with the other Plaintiff, and that more than three years had elapsed after she came of full age, before the marriage? *4and the commencement of this suit. And it also appeared that *Ann,*being an infant of tender years, residing with her father at the time of the alleged gift, continued to re-gjje him until her marriage, shortly after which, suit was commenced. On this evidence, two questions were made; whether a gift had been proved, and if so* whether the action was barred by the statute — on the latter point, the Plaintiff’s Counsel insisted that the Defendant was a trustee for Ann, and therefore his possession could not be set up, by him, against her claim. The Judge instructed the Jury» that supposing the gift made, the Defendant was in possession as the *bailee,*and not the *trustee*of *Ann,*and therefore not within the rule referred to by the Plaintiff’s Counsel, which was confined to pure trusts, cognizable in a Court of Equity, and was not applicable to bailees in a Court of Law. That to bar the Plaintiff, a possession adverse, and continued for three years after she came of full age, must be shewn, and that the possession taken by the Defendant under the void reservation, of a life estate to himself, would be consistent with the title of *Ann,*until the Defendant did some act, or made some declaration, which changed the nature of his possession *;*that if he claimed the property as his own, and treated it as such, this would render bis possession adverse, whether she had express knowledge of the fact or not. Upon the evidence relating to the gift, the Judge instructed the Jury, that as no consideration, in cases of gift, passes from the donee to the donor, the law requires every parol gift to be a sedate,deliberate act, and therefore incautious expressions, or expressions used when the speaker was in a state of inebriety, would not be sufficient.

The Jury found “ all the issues in favor of the Defendant.” A new trial was moved for, on the ground of misdirection, and the admission of improper evidence, which being refused, and judgment given upon the verdict, the Plaintiff appealed.

*5
      *Badger,*for the Plaintiff.

1st. The Judge erred in admitting the will to be read. The declaration it was , admitted to qualify, was a general one m its terms; the presumption from it was, that an effectual gift had been made. The Defendant cannot, be/perrnitted to prove *his own*act, in order to qualify *his own*declarations.

2d. The charge as to the act of limitations is wrong; there is no difference in its operation between the cases of a trustee and bailee. Both are founded upon the ground, that the possession of the trustee or bailee is not inconsistent with the rights of the owner. The Statute never begins to run until a cause of action has accrued; this only could have arisen after a demand by the daughter, and a refusal on the part of the Defendant. In establishing the rule as to trusts, equity has followed the law.

Sd. The charge is erroneous in making a difference as to the degree of *caution*and *sobriety*necessary to a gift, and that necessary to a sale. A capacity and an intent are all that is necessary to both; the only difference between them is, that one is good without delivery, the other is revocable until a delivery is made.

*Gaston,*for the Defendant.

1st. The will was properly received: the question of fact between the parties was, whether by the expression used, the Defendant meant that he had given the negroes in question to his daughter, absolutely by deed, or revocably, by will. The fact of his having made a will was pertinent to this issue, as explanatory of his declaration.

2d. The charge is correct as to the statute of limitations, It is not pleadable in cases of direct trusts: but this doctrine is confined to trusts of equitable origin, and does not apply to legal claims, although founded on a breach of confidence. Every action of detinue is founded on a .bailment, but they arc barred. The charge is especially correct, because the Defendant held at the will of his daughter.

*6gd. The ]aw does make a distinction between a gift, and a sale; — more deliberation is necessary fo (he former,.(han to the latter. The valuable consideration ci.caj-eg a difference in favor of the latter; whereas, in the former, words are the only evidence of the transaction.

*Badger*in reply.

It is true, that every action of De-tinue is founded upon a supposed bailment,* but it is also founded upon the supposition, that a demand and refusal has been made, after which the statute begins to run and not before. '

Ham Judge,

delivered the opinion of the Court. — - The Judge charged the Jury in this case, “That as no consideration passes from the donee to the'donor, the law requires every parol gift to be a sedate, deliberate act, and therefore incautious expressions, or expressions used in a state of inebriety, would *not*be *sufficient.”*

It is objected that the charge is incorrect, that a gift is good, if the person making it, had the use of his understanding, and was in earnest when he made it j although he did it without sedateness or deliberation, and was, at the time, in a state of intoxication.

I understand the Judge, and the Counsel, both to mean, that every gift, in order to be valid, must have the free assent of the donor to it. The Judge considered deliberation and sedateness as evidence of that assent, but that incautious expressions, coming from a drunken man, *were*not. He did not say, that more deliberation was necessary in making a gift, than a sale; if he meant that, I do not coincide with him in opinion. The free assent of the party is as indispensable in the one case, as in the other. I am inclined (o believe that the Jury were not misled by the Judge’s charge in that respect.

As the Jury have found for the Defendant, on the plea ■of *non detinet,*it seems to be useless to say any tiling •relative to the charge, as to the statute of limitations. I will only observe, assuming it as a fact, that the Defend*7ant was a Trustee, that nothing emanating from him would change that character, and put the statute of limi- , ,. . . *■ ,. . , „ tations into operation m his tavor.

It appears that Defendant liad given negro Cloe to his daughter Ann, by his will, but had not given her all Cloe’s children, which she had after the alleged gift; and *that,*after the date of the will, he made declarations, that he had given Cloe to his daughter Ann; the Defendant introduced the will, although objected to by the Plaintiffs, to explain to the Jury what was meant by those declarations; namely, that he meant he had given her by his will. I can see no objection to this evidence; and from the view which I have taken of the whole case, 1 think the rule for a new trial should be discharged.