#### ROBERT *GREEN vs.*DAVID HARRIS.

December 1842.

The only thing, that gives weight to the declarations of a party to a suit in his own favor, is, that they are made in the presence of the person interested to deny them and are not contradicted.

No length of possession by a bailee, as such, will bar the right of the bailor; and, if the bailment be admitted, during the longest enjoyment, a title in the possessor cannot be presumed from the possession.

A bailee may turn his possession into a tortious and adverse one ; but then there must be some demand or effort of the bailor to regain the possession, and a refusal or resistance on the part of the bailee, or *some act*must be done by the bailee changing the natuie of the possession.

But the naked declaration of a bailee; that he claimed the property in his own right, without any change of the possession and without any demand or wish to resume the possession by the bailor, although such declaration be public or made even to the bailor himself, Will not instantly terminate the bailment and immediately convert the possession into an adverse one.

Though a bailee in possession may maintain an action of detinue against mere wrong-doers, yet persons, Who claim under the will of the alleged bailor, are not to be considered as Wrong-doers, against whom the bailee may on that account maintain this action againt them.

The cases of *Mitchell*v *Cheeves,*2 Hay. 126. *Dameron v Clay,*2 Dev. Eq. 17. *Darden*v *Allen,*1 Dev. 466. *Painter*v *Faucetf,*2 Dev. 240. *Hill*v *Hughs,*1 Dev. & Bat. 320. *Powell v Powell,*1 Dev. & Bat. Eq. 379.— *Martin*v *Hardin,*2 Dev. & Bat. 604, and *Collier v Poe,*1 Dev. Eq. 55, cited and approved.

Appeal from the Superior Court of Law of Montgomery County, at Fall Term, 1842, his Honor Judge Dick presiding.

This' was an action of detinue for four slaves, to-wit, Matilda and her three sons, Jerry, Sara and Doctor, commenced in January, 1840, in which possession by the defendanfand a demand by the plaintiff immediately before bringing the action were admitted. The plaintiff introduced - *211two witnesses, Britton Chappell and John Chappell, who stated, that in the year 1798, the plaintiff was in of Matilda, and that the other three slaves named in the dec-laralion are reputed to be the issue of Matilda — that the plaintiff retained, from the year 1798, the possession of Matilda, then a girl, and her sons sued for from their birth, until just before the bringing of this action — that the first wife of the plaintiff was Nancy, the daughter of Joshua Harris. And the plaintiff here rested his case. The defendant then introduced Howell Harris, who stated that he was the son of old Joshua Harris, who formerly resided in this county, and removed many years ago to Georgia — that, about the year 1795, or 1796, the plaintiff intermarried with Nancy, the daughter of the said Joshua Harris — that,-about two years after the marriage, Nancy had a child — that witness was then living with his father, who called Matilda and said" to her, “ Go over to Bob Green’s and nurse for my daughter” — that Matilda then went to the plaintiff’s and continued in his possession, with the exceptions hereinafter mentioned, until within a few days of the bringing of this action, when she and her sons came to the witness’ house, where Olive Green was at that time staying — that he did not know how they came there — that Nancy, the wife of the plaintiff, died about the year 1805 — that he thinks the last visit old Joshua Harris made to this country, was in the fall of ,1812 — that Nancy, the first wife of the plaintiff, left four children, to-wit, Olive, Betsy, Fadyand Nancy, the two last named of whom married many years ago and removed to Kentucky, and are now married women — that about seven years ago he heard the plaintiff say that Matilda and her children did not belong to him, but belonged to his four daughters by his first wife, to whom they had been given by the will of their grandfather, old Joshua Harris — that this was about seven years after the death of old Joshua Harris— that the plaintiff said he had a right to the negroes by possession, and that he ought to have some of them for raising them — that Betsy, Fady and Nancy lived with the plaintiff till they were married — that Olive, who is now about 45 years of age, lived with the plaintiff, but was away from him *212about 3 years — that the plaintiff gave Olive, when she left Matilda and her child Doctor, but Olive was not satis-fed, and the plaintiff gave her Lucy, a daughter of'Matilda, and her son Richmond, the plaintiff taking back Matilda and Doetor — that the witness hired, for Olive, Lucy and Richmond to the plaintiff for one year, for 15 dollars, and the next year hired them to Zaehariah Hogan for 12 dollars — that Olive, after being away about three years, returned to the plaintiff’s, taking with her Lucy and Richmond, and remained there until about three years ago — that Matilda when she first went to the plaintiff’s was a very small girl — that Dr. Ewing, as agent for Olive, hired to the defendant the negroes sued for not long before the bringing of this action, at first for two weeks. The defendant then introduced Zaehariah Hogan, who stated, that about 7 or 8 years ago, he hired from Howell Harris, Lucy, Richmond and an infant child of Lucy for one year, for $12 — that the plaintiff said to the witness that he had given Olive, Matilda and Doctor, and took them back and gave her Lucy and children — that they said he could not hold the negroes, but he thought he ought to have a part of the negroes for raising them, and asked witness if he did not think he ought to have a share of them. Niel McLeod, a witness for the defendant, stated that his brother John McLeod married Fady, the daughter of the plaintiff, by his first wife Nancy — that the plaintiff gave John a girl named Edy — that the plaintiff after-wards proposed to John to *lend*him Winny, one of the children of Matilda — that John replied that he would not take her as a loan, but only in right of his wife under the will of old Joshua Harris — that the plaintiff then said, “that is right, John, but I ought to have some of them for raising them”— that the plaintiff then gave John Winny, the latter consenting to claim no more of the negroes — that John afterwards sold Winny to the plaintiff — that this was about the year 1819 or 1820. Roderick McLinden, a witness for the defendant, stated that he heard John McLeod claiming negroes in right of his wife from the plaintiff, who did not deny the right claimed — that McLeod afterwards got Winny, and the plaintiff got her again. William Hogan, a witness for the *213defendant stated, that on the birth of one of Matilda’s children, he observed to the plaintiff that Matilda would him rich, and the plaintiff replied they'would not do him much good, that when the children grew up he would have to let them go — that this conversation took place about 26 or 27 years ago, while the plaintiff was a widower — that the witness always knew Matilda in the possession of the plaintiff, and he treated her as his own slave. Doctor Ewing, a witness for the defendant, stated that, in the fall of 1825, or beginning of 1826, he heard one Williams mention to the plaintiff that he had lent to one Woolley a negro girl, and that he had been raising negroes for other people — that the plaintiff said he held a negro under the same circumstances, that alter he had married old Joshua’s daughter, he lent the plaintiff a negro girl, that old Joshua always claimed and owned the negroes, that old Joshua had given the negroes by will to the plaintiff’s four daughters by his first wife, that old Joshua had given Till and her increase to the plaintiff’s four daughters, that the plaintiff had no right to the negroes, but would raise them for his daughters — that the plaintiff also said, that, after the death of his first wife, old Joshua wished to take away the negroes, but the plaintiff promised to keep them for Harris, and raise them for the plaintiff’s daughters, and he was permitted to retain them. The defendant had several witnesses in Court, by whom, he stated, he expected to prove various declarations of old Joshua Harris, made publicly and openly on numerous occasions, but none of them in the presence of the plaintiff, beginning in the year 1801, and ending in the last of the year, 1812, that he owned Matilda, that he had only lent her to his daughter Nancy Green, to assist her in nursing her first child,- and that old Joshua before he removed to Georgia, resided within three miles of the plaintiff.

The evidence of Harris’ declarations so made was objected to by the plaintiff, and excluded by the court. Grigsby Rush, a witness for the defendant, stated that he knew old Joshua Harris, and knew that Matilda was his slave — that Joshua Harris is dead — that in the winter of 1838 witness *214wns a£ ^le house of the plaintiff, who stated that he had given McLeod, Shamwell and Harris each two of the ne-groes, and that if they would take Olive to Kentucky, he would give up all the negroes except two — that Howell Harris persuaded the plaintiff to give up all the negroes, and the plaintiff replied, he would not say so then, but he did not know what he might do if they came in, that he had been at much trouble, and ought to have some compensation — ■ that the plaintiff did not then set up any other claim to the negroes, but compensation for his trouble — that Harris married Betsey, the daughter of the plaintiff, McLeod married Fady, and Shamwell married Nancy. John Christian, a witness for the defendant, stated that he knew that old Joshua Harris let his daughter Nancy have the girl Matilda, but only on loan — that Joshua Harris always claimed the ownership of Matilda — that the plaintiff frequently complained of keeping the girl as a loan. The defendant then introduced the will of old Joshua Harris, in one clause of which he says: “I give Tilda and her increase to my daughter Nancy Green’s children.” The will was dated the 29th of January, 1816, and was proved at January Sessions of the Court of Ordinary of the county of Jones, in the Stale of Georgia. Executors were named in the will, but the record did not shew their qualification.

The plaintiff then introduced David Green, who stated that he was a brother of the plaintiff — that he knew Matilda forty-five or fifty years ago in possession of the plaintiff, and that she so continued till the death of the plaintiff’s first wife — that he then heard, lor the first time, some complaint about Matilda — that more than forty years ago old Joshua Harris said to William Green, father of the plaintiff, “ Darn it, William, why dont you give as much to Bob as I have given to my daughter?” To which William Green replied, “if I were to give all my children a negro each, I should have none left for myself” — that when Matilda first' went into the possession of the plaintiff, his wife had no child, Matilda being very small. Joel Green, a witness for the plaintiff, stated, that he knew Matilda in the possession of the plaintiff 45 or 50 years ago — that at William Green’s, and *215before the plaintiff’s wife had a child, he heard a conversation between old Joshua Harris and the father of the tiff, in which the former said to the latter, “Dam it, Wil-’ liam, why dont you give Bob a negro as well as I have done?” — that David Green was not present at this conversation. William Pomar, a witness for the plaintiff, stated, that he heard Joshua Harris say, at Steel’s store, 45 years ago or more, that he had two daughters married, one to the plaintiff and one to John Christian, and he had given to each of them a negro girl — that Harris was a bragging, drinking man, but had not been drinking then enough to hurt him — that he had heard the plaintiff tell John McLeod, that he had given his (McLeod’s) wife one negro, that she was a cripple and he would give her another to make her equal with the rest — that the witness did not hear McLeod dispute the fact, or make any objection. James Green, a witness for the plaintiff, stated that he was a son of the plaintiff, by his second marriage — that the negroes had been in the possession of the plaintiff as long as he could remember — that he heard' the plaintiff say to Olive Green, 10, 12 or 15 years ago, that the negroes were his, and he would do with them as he pleased — that the plaintiff gave to Olive Matilda and Doctor, and she was not satisfied — that thr plaintiff took them back, and gave her Lucy and Richmond. Thomas Pemberton, a witness for the plaintiff, stated, that he had heard various conversations between the witness, Howell Harris, and the plaintiff, in which the plaintiff claimed the negroes as his own— that the witness also heard various conversations between old Joshua Harris and the plaintiff, sometime between 1806 and 1812, in which Harris contended that the negroes should go to the daughters of Nancy Green, and the plaintiff insisted that Harris had given them to him, that they were his properly, and he would do with them as he pleased — that the witness was also present at a conversation between the plaintiff and John McLeod, relative to the negro Winny, which the plaintiff purchased back from McLeod, at the time of the execution of the bill of sale ; that McLeod was in embarrassed circumstances, and was obliged to sell pro*216perty, and the plaintiff said that the negro was his, but to avoid all difficulty, he would buy, and accordingly did so— that Nancy Green died in 1805 or 1806.

The plaintiff then ■ contended that Olive Green, under whom the defendant claimed, was a wrong doer, and the plaintiff must recover in this action, on his possession — that if this be overruled, he then insisted that the girl Matilda had been given to him, and the title was in him — that the bailment had been determined by the declarations of the plaintiff, as stated by Thomas Pemberton and James Green, and that his subsequent possession barred the claim of Joshua Harris to the negroes, by the statute of limitations, and.also barred all claiming under him ; and,' therefore, by virtue of the act of 1820,-(Rev. St. c. 65, s. 18.) the title was vested in the plaintiff.

The defendant insisted that the defendant was not a wrong-doer, but claiming a title under a 'will, and that, from the circumstances of the case, especially the lapse of time, the assent of the executors to the legacy was to be presumed. He'also insisted that the girl Matilda was not given but loaned to Harris, and that the bailment continued until the defendant got possession of the slaves — that the bailee could not determine the bailment by his own mere declarations or acts, and that, therefore, the statute of limitations could not have protected him, nor would his possession ripen into a title under the act of 1820.

His Honor, charged the jury, that, previous to the passage of the act of 1806, if a'father, on his daughter’s marriage or shortly thereafter, put a negro or other personal property into the possession of a son-in-law, it was, in law, a gift, unless the contrary could be proven — that if the plaintiff had proved to their satisfaction that the negro Matilda was sent to him by his father-in-law, Joshua Harris, shortly after his marriage with his daughter, and that he had continued in possession of the said negro from the year 1798 or before, until shortly before bringing this suit, the law presumed it was a gift, and it was incumbent on the defendant to shew that the original transaction was not a gift but a loan. And in order to determine that point, it was proper for them to *217see what was done and understood between the parties, the time the negro went into the possession of the and if they found it was a gift and not a loan, the plaintiff would be entitled to their verdict. But if they found the original transaction was a loan and not a gift, it would then be proper for them to enquire, if the plaintiff afterwards acquired title to the negro Matilda and her increase, and with that view it was proper for them to consider, what took place between the plaintiff and Joshua Harris, as detailed by the witness Thomas Pemberton, in the year 1806, or 1807, and if they believed, as that witness-stated, that the plaintiff told Joshua Harris that the negro Matilda and her increase were his own property, and he would do with them as he pleased, and Joshua Harris failed to sue for the negroes and suffered them to remain in the possession of the plaintiff more than three years after such declarations of the plaintiff, the plaintiff thereby acquired' title to the slaves-, and' was entitled tó recover in this action. *t*

The plaintiff’s counsel prayed the court to instruct the jury, that possession alone was sufficient' to entitle the plaintiff to recover against a Wrong-cfoer; and' that Olive Green, under whom the defendant claimed, was a wrong-doer, as she had not shewn the assent of the executors of Joshua Harris to her legacy. The court declined giving these instructions.

The jury found a verdict for the plaintiff. The defendant’s counsel moved for a new trial, 1st. Because his Honor instructed the jury, that from the sending of Matilda to the plaintiff, the law presumed a gift, unless the defendant shewed that it was not a gift but a mere loan, and that the enqui-ry of the jury was, whether it was understood by the parties at the time as a loan, and not a gift. 2ndly. Because his Honor instructed the jury, that, if they believed the testimony of Thomas Pemberton, the bailment had been de-tarmined and the statute of limitations attached, and, after three years, the claim of Harris was barred, and the operation of the act of 1820 vested the title in the plaintiff, so far as those were concerned under whom the defendant claims. 3dly. Because competent testimony offered by the defendant was excluded.

*218The'court refused to grant a new trial, and judgment be-rendered pursuant to the verdict, the defendant appealed.

*Strange*& *Mendenhall*for the plaintiff.

*Winston*for the defendant.

Ruffin, C. J.

The counsel for the defendant has given up the exception taken to the opinion of the court upon the presumption of a gift, to which, indeed, this court sees no objection. *Mitchell*v *Cheeves,*2 Hay. 126. *Dameron*v Clay, 2 Dev. Eq. 17.

As we conceive, his Honor was likewise correct in rejecting the evidence offered of Joshua Harris’ declarations, not made in the presence of the plaintiff. It is a general rule, that a party’s declarations are not evidence for himself, unless madb in the presence of the opposite party, and not contradicted by him. The declarations in themselves prove nothing but that Harris said, he had bailed the negro to the plaintiff; but they cannot establish, that he in fact lent her. It is their not being contradicted, when made to the person interested to deny their truth, that gives weight to them as evidence of the fact declared. The evidence was therefore properly ruled out, upon the grounds both of irrelevancy and incompetency.

The remaining exception of the defendant relates to that part of the instructions, which respects the character of the plaintiff’s possession, after the conversation between him and Harris, as proved by the witness Pemberton. That person stated, that he heard frequent conversations between those parties between the years 1806 and 1812, in which Harris contended that the negroes should go the daughters of his deceased daughter Nancy, the former wife of the plaintiff, and the latter said, that Harris had given them to him and that they were his property, and he would do with them as he pleased. Upon this part of the case the judge instructed the jury, that, if, from all the evidence,, they found that *219the negro Matilda had been originally lent and not given, then the plaintiff could not recover, unless he afterwards acquired a title to the slaves : And with a-view to ascertain, whether the plaintiff had, after the original loan, acquired an absolute title, the jury was further instructed, that, if they belived the witness Pemberton, and found that the plaintiff told Harris that the negroes were his own property, and that he, the plaintiff, would do as he pleased with them, then the failure of Harris to sue for the negroes and suffering them to remain in the possession of the plaintiff, more than three years after those declarations of the plaintiff, gave the title to the plaintiff, and he ought to recover.

We have to premise, that, in deciding the point raised by this exception, the court does not look into the evidence at large, with the view of seeing whether, upon the whole of it, a verdict might not or ought not to have been found for the plaintiff. From the very great length of the plaintiff’s possession, accompanied by a frequent claim of title by a gift originally made, and by acts of apparent ownership in dividing the negroes among and giving them to his children, a presumption of such gift, or of any thing else necessary to constitute a good title, might and ought to be deduced, unless opposed by the very clear and consistent proof of an original bailment and of subsequent recognition of it from time to time by the plaintiff. But while we hold such to be 'the law, we likewise think, that, if it be established to the entire satisfaction of the jury, that, in fact, Mr. Harris lent the girl Matilda to the' plaintiff at first, and the effect of the length of possession and other acts of apparent ownership, as presumptive evidence of a gift subsequently made, be repelled by the well established and deliberate acknowledgments of the plaintiff, that he did not hold for himself, but held under and for his father-in-law, or for his own children, to whom his father-in-law gave them; then the plaintiff could not recover from one of his children, or from a person claiming under the child. For no length of possession by a bailee, as such, will bar the right of the bailor; and, if the bailment be admitted during the longest enjoyment, a title in the possessor cannot be presumed from the possession. *Dar-**220*den*v *Allen,*1 Dev. 466. *Palmer*v *Faucett, 2*Dev. 240. *Hill v Hughs,*1 Dev. & Bat. 320. The difficulty, under which the defendant lies, is to give such plain, continued, consistent and uncontradicted evidence of the plaintiff’s acknowledgment of the title of Harris or of his children, as will, in the minds of the jury, overcome the fair and legal •influence of an uninterrupted possession of more than forty ■years.

From the tenor of the instructions to the jury and of the defendant’s exception, we are, however, to consider, that the negro was not at first given, nor at any other time, bnt was, in fact, lent; and, assuming that to be so, his Honor held, upon the testimony of Pemberton, and, as if that was all the evidence in the case, that the plaintiff’s possession for three years, without suit, after he told his bailor that the ne-groes were his own property, and that he would do with them as he pleased, gave the plaintiff the .title to the negroes. The meaning is, that by those declarations the party’s possession became adverse, and was protected by the statute of limitations, and was ripened into the absolute title by the act of 1820, (Rev. Stat. c. 65, s. 18.) Now, from that position, as an isolated point in the case, this court dissents. We do not dispute, that a bailee'may turn his possession into a tortious and adverse one. We have held in *Martin*v *Harden, 2*Dev. & Bat. 504, that a demand of a negro- by the bailor, and a refusal by the bailee, will have that effect. In *Powell*v *Powell,*1 Dev. & Bat. Eq. 379, we held, that, where .slaves were given by parol to one, who died intestate, and, in the division of the donee’s slaves amongst his next of kin, those thus given were allotted in the share of one of the next of kin, and were taken into possession by him as a part of his share, the possession taken in that manner was adverse to the original donor, as to the rest of the world, and put the statute of limitations into operation. We considered that case as tantamount to an absolute purchase from a bailee, and possession taken thereon by the purchaser ; in which case, unquestionably, the possession must be taken to be in the possessor’s own right, and not as subsidiary to the right of the donor, or of any other person. But *221in all those cases there is something more than the bare claration of the bailee, that he claims the property and not hold for his bailor. There is a taking a new possession by a purchaser or by the next of kin in *Powell*v *Powell;*and in the other instance, there is a positive refusal to restore the possession which the bailor demanded, and which the bailee was bound to surrender, whereby he gave to the bailor an action immediately to recover the property, which it was the folly of that person not to bring. In this case there is no act of either of those descriptions. It is to be recollected, that all the rest of the evidence is to be put out of view, except that of Pemberton ; because the court laid it down to the jury, that the facts stated by him, if true, with a subsequent possession for three years, entitled the plaintiff to recover. We are therefore to shut out even the long possession, as evidence of an original gift, or of one subsequently, or as evidence of ouster — if we may use the expression — or rather of the adverse character of the plaintiff’s holding. Now it has never been holden, that the naked declaration of a bailee, that he claimed the property in his own right, without any change of the possession and without any demand or wish to resume the possession by the bailor, although such declaration might be public or made even to the bailor himself, would *instantly*terminate the bailment and immediately convert the the possession into an adverse one, so as to set the statute of limitations in motion from the day of such declaration. The contrary we conceive to be settled law. Without adducing from more remote sources authorities in support of our opinion, it is sufficient to say, that in *Collier*v *Poe,*l Dev. Eq. 55, there was a loan of a negro in 1804, the death of the lender in 1807, and open and public annunciations by Poe in the lifetime of Payne of the claim of title by the former, and thereupon a continued, possession under that claim up to 1824 ; and yet the court distinctly said, that there was no pretence for the operation of the statute of limitations, on which the answer insisted, for by his declarations, that he claimed the negroes as his own, the defendant could not throw off his character *222as bailee. Again, in Hill v *Hughs,*1 Dev. & Bat. 336, although the bailee not only claimed and used the slave as his 0vvn, but actually conveyed him by a deed of trust as a security for his debts, yet, as the trustee did not take possession, but the bailee kept it as before he made the deed, we were of opinion that the bailment had not been determined, and consequently that the possession did not become adverse upon the execution of the deed. The present case cannot be distinguished from the principle of the two cases cited. It rs precisely that of *Collier*v Poe, except that the claim of title was made in the presence of the donor, while *it does*not appear that it was in *Collier*v *Poe,*although publicly done. But *Hill*v *Hughs*is a stronger case than the present, as there was an actual conveyance by Haynes. But here, according to the testimony of Pemberton, although there was a claim of property by the plaintiff, there was no refusal to surrender the possession to Harris, who, indeed, did not demand it. On the contrary, the witness states merely, that Harris “contended that the negroes should go to the daughters of his deceased daughter,” and not that he demanded them from the plaintiff, or said or did any thing from which it can be inferred, that he meant or wished *then*to deprive the plaintiff of the possession and enjoyment of the negroes he had lent to him. If then the plaintiff held as bailee before, he still held in that character; for there was no effort by the bailor to regain the possession, and no *act*done by the bailee changing the nature of it. Pemberton’s testimony is strong to shew there was a gift originally ; for Harris did not allege the contrary, but only contended that the negroes should go to his grand-daughters, which he might well do, on the idea that the plaintiff got them from him, and ought not to give them to children by another marriage. But the case was not put on that point, but was left to the jury on the hypothesis that it was not a gift, but a loan ; and, thus regarded, the court is of opinion that what passed, as stated by Pemberton, did not amount to a demand and refusal of itself, so as to make the possession adverse. The case must therefore again go before a jury, who can *223weigh that evidence in connexion with the long possession, prior and subsequent, and the other circumstances, and the proper weight to the whole, as tending to establish a gift at some time, or to lay a foundation for the presumption of a demand by Harris or the plaintiff’s children and a refusal on his part; and also to the evidence on the part of the defendant, tending to rebut those inferences and establish the continued relation of bailor and bailee between the parties.

The counsel for the plaintiff has, however, insisted, that, ever, if there was error in the point already considered, the judgment should stand, because, as a bailee in possession, he can maintain this action of detinue against a mere wrongdoer, and, therefore, on,the whole case the verdict was right. The general question was argued elaborately; and it may be, that the special property of a bailee will sustain detinue against one, who actually deprives him of the possession without color of right in himself or in him through whom he claims. But we do not propose to discuss the point at present, because we think it does not arise in this case. The defendant claims under a gift in the will of the former owner, the alleged bailor of the plaintiff; and, even if, after so long a time, an assent to the legacy is not to be conclusively presumed, yet the connexion with the property by force of the gift in the will, certainly, we think, prevents the plaintiff’s children from being treated as mere wrong-doers and intermeddlers with effects to which they have no claim_ After the lapse of twenty-five years from the probate of the-will, without any interference by the executors, or suggestion of debts unpaid, it is a fair inference that the executors-meant to leave the contest to be decided between the plaintiff and his children upon the right; that is, to let the question of loan or gift be determined between those parties themselves, and not to interpose in any manner so as to obstruct the decision. We concur, therefore, in the refusal of his Honor to give the instruction prayed for by the plaintiff on this point.

Pbr Curiam. Judgment reversed, and *venire de novó*ordered.