#### EDMUND CLAYTON *vs.*ASA D. LIVERMAN.

Where the question is, whether an instrument of writing is a testamentary „ paper or a deed, it becomes a fact, to be proved by ail kinds of evidence, by which, in law, any other fact ipay be established. The evidence, Which arises from the face .of the instnpqent, pray be aided or opposed by evidence *aliunde.*

Therefore where A and B by an instrument of writing “gave and bequeathed” to C. certain slaves “to have and to keep the aforesaid property at our death,” and it was proyed that the dqnors intended this as a deed of gift and so signed, sealed and deliyered it. *Held,*that fhis was g. deed of giff and not a testamentary paper.

The plaintiffhaving recovered one thousand dollars as damages for the detention of the slaves, whereas the damages laid in the writ and declaration >vere only two hundred dollars. *Held,*that the plaintiff might in the Supreme CourL amend his writ and declaration, so as to state the damages at one thousand dollars, he paying all the costs of the suit.

The case of *Moore*v. *Collins,*4 Dev. 384, cited and approved.

Appeal from the Superior Court of Law of Washington County, at the Fall Term, 1846, his Honor Judge PeaRsoN, presiding,

This was an action of detinue, tried at fall term, 1846, ofWashington Superior Court, and brought to recover the three negro slaves mentioned in the suit. The plaintiff proved that Patsey and Sally Liverman were formerly the owners of said slaves. He then offered in evidence the instrument annexed, made part hereof, and marked A *:*he introduced Charles McGlccs. a subscribing witness *93thereto, who proved that Nancy McClees the other subscribing witness was dead : that Patsey and Sally Liver-man, the signers of said instrument, sent for him and told him they wished him to write a deed of gift of the slaves and property in said instrument to the plaintiff, they being at that time the owners and in possession of said slaves and property: that he drew said instrument, and read it over, including the attestation clause “ signed, sealed and delivered in presence of:” that they then signed and sealed it, and he and said Nancy, at their request witnessed it: that all this was done in the presence of the plaintiffs and said Patsey and Sally: he further stated that he did not recollect, whether the instrument was left on the table, or whether it was hajided to the plaintiff, or to said Patsey and Sally. T1 introduced other evidence of the delivery ment as the act and deed of the said Pg The plaintiff was then permitted to read ^hereupon the defendant objected, that was not a deed, but was testamentary ii the testimony proceeded, his Honor Judge* serving this question. The plaintiff then proved the value of the slaves, that the defendant had taken possession of them, and had them in his possession at the brirjg-ing of this action — he also proved the value of their hires, for the time they had been detained, and that the action was brought within a month or two after the detainer— the detainer having been since Patsey’s and Sally’s death. His Honor Judge Pjjarson, after explaining to the jury the requisites of a deed, left it to the jury to say, whether the said instrument had ever been delivered by the signers, to the plaintiff as their act and deed ; if so, the jury were instructed to find for the plaintiff — if not, for the defendant. Under these instructions the jury found for the plaintiff. Upon the question reserved, his Honor was of opinion, that as the instrument contained words which, if in a deed, were sufficient to convey the slaves and pro*94perty therein to the plaintiff, and the jury having found the execution of the instrument as the act and deed of the signer thereto, it was and had the force, and effect of a deed, and did convey the slaves and property in it mentioned to the plaintiff. A judgment was rendered for the plaintiff and the defendant appealed.

(A.)

*(Instrument referred*to.)

“ Know all men by these presents that X Patsey Liverman and Sarah Liverman do, for the good will and divers of good causes, which we have not mentioned, have given and bequeathed to Edward Clayton the following articles, to-wit: First, we give and bequeath fifty acres of land, which we purchased of Uriah Spruill, also one negro woman, by the name of Phillis, one girl Grinny, and one boy by the name of Robert, to have and to keep the aforesaid property, at our death, free and clear from any enthralments whatever.

In testimony whereof we have hereunto set our hands and seals, this the 28th day of July, 1828.

(Signed by the donors.)

Signed, sealed and delivered ? in presence of (

(Signed by two witnesses.)

*Heath,*for the plaintiff.

*A. Moore,*for the defendant.

Daniel, J.

*First:*tbe Judge decided that the instrument of writing, under which the plaintiff claimed the three slaves, was not a testamentary paper. We concur in the opinion delivered by his Honor. When as to tbe extent of estates, or the particular limitation of estates in a deed or will, tbe intention of a testator, or *the*intention of the maker of a deed, is *to he*ascertained, the Court must decide the question only upon tbe face of the instrument itself. But when the question is, whether an instrument of writing is a testamentary paper or a deed, it becomes a fact to be proved by all kinds of evidence, by which, in law, any other fact may be established. The: evidence, which arises from the face of the instrument, *95may be aided or opposed by evidence *aliunde.*The Ian-guage of this' writing, except the'Word *“*bequeathed,” and all the incidental circumstances in making it, are those which really belong to a deed. . The three slaves to pass by the instrument to the plaintiff, on the death of the donors, is a circumstance, (since our statute,) applicable either to a deed for slaves, or to a last will. But the subscribing witness deposed, that the donors told him, that they wished him to write a *deed of gift*to the plaintiff, for the property mentioned in this instrument; he wrote it, and then read it over to them, and they signed and sealed it, and he witnessed it at their request. And then there was express evidence, from other witnesses, t)iat Sally and Patsy Liverman delivered the instrument as *their deed.*The whole of the evidence is, in our opinion, quite satisfactory that the donors intended to execute a deed, and not a will. And although this Court has heretofore decided, that the donors could not make a joint will, yet there is no dispute, but that they might make a joint deed of gift; and that the separate interest of each of the donors, in and to the said slaves, would pass by the deed to the donee, by force of the statute, on the death of the donors. That the instrument cannot in law operate as a will, is another strong reason, why it should be regarded as a deed and as having been intended by the parties to operate as a deed, passing vested interests and operating immediately.

*Secondly:*the law, upon the question of a delivery of the deed, was correctly stated by the Judge to the jury. Without repeating his charge on this point, it seems to us to be right, according to the principles laid down by this Court, in the case of *Moore*v. *Collins,*4 Dev. Rep. 384. The damages assessed for the detention of the slaves, amount to *$*1,000, while those laid in the writ and declaration are only $200 ; and’the counsel for the plaintiff has moved for leave to amend by enlarging the sum laid. The cases are, that he may do so ; but he must pay *96for llie privilege, all the costs of the suit, in this, and the other Courts. *Grist*v. *Hodges,*3 Dev. 198. Upon the record,'as amended, the judgment will then be affirmed, except as to' the costs.

Per Curia-m. Judgment affirmed at the costs of the plaintiff.'