#### BYRD MOORE *vs.*LITTLETON A. GWYN.

Where the question was of a gift or loan by a father to his son-in-law, the declarations of the father to his daughter (wife of his son-in- law) two weeks before the delivery of the property, as to the nature and effect of the delivery he was about to make, were proper evidence in behalf of the father against the son-in-law, though such declarations were never communicated to the latter,

A private conversation between a father and his son and the advice of the latter, as to the conduct the father should pursue in relation to the public sale of property which the father claimed, cannot be given in evidence in behalf of the father.

The case of *Collier*v *Poe, \*Dev. Eq. 55, cited and approved; and the case of *Jones*v *Sasser.*1 Dev. & Bat. 452, cited, commented on and approved.

Appeal from the Superior ■ Court of Law of Caswell County at Spring Term, 1844, his Honor Judge Dick presiding.

This was an action of detinue to recover three slaves, to wit, Ann, Mary and her child Henry. It was admitted by the parties, that the plaintiff, prior to the year 1837, owned the two slaves Ann and Mary, and that Henry is the child of Mary — and that the defendant is the administrator of of William Dupree, dec’d. The plaintiff introduced, as a witness, Mrs. Dupree, the daughter of the plaintiff and the widow of the defendant’s intestate, who proved, that her father lives in the State of Virginia, and that she intermarried with the defendant’s intestate, who also lived in Virginia, on the last day of October, 1837 ; that on the day after her marriage, she went home with her husband about 14 or 15 miles from her father’s; that, about two or three weeks after her marriage, her father sent to them the slave Ann and her *276child James, since dead, *and shortly after*Christmas, 1837, sent to them the slave Mary; that the slaves remained in her husband’s possession in Halifax County, Virginia, until the Fall of 1838, when her husband removed to Caswell County, North Carolina, and brought the slaves with him ; that he had them in his possession until his death, which took place in July, 1842, The plaintiif then proposed to prove by the same witness, that, after her intermarriage with the defendant’s intestate and both before and after the slaves were put into their possession, certain conversations took place between her and her father, relative to the putting of the slaves in the possession of her hushand; which evidence was objected to by the defendant’s counsel, upon *the ground*that these conversations were held in the absence of the husband. Upon which objection, the Court asked the witness, if the declarations of her father were made at the time he parted with the possession of the slaves, and whether she had ever communicated these conversations to her husband; to which she replied, that the conversations between her and her father, relative to the character in which the slaves *were*sent, took place a week or two before they were sent, in the absence of her husband, and did not, at the time the plaintiff parted with the possession, and that she had never made them known to her husband. The Court sustained the objection. Upon cross-examination, the witness stated, that in the month of October, 1842, after the qualification of the defendant as *administrator, he*set up the slaves to the lowest bidder for the remainder of the year, when the plaintiif bid off the slave Ann at the price of three or four dollars, and permitted the witness to retain her. This witness also stated that, at the time of her marriage, her father owned thirty or forty slaves, and that the slave Henry, the child of Mary, was born in North Carolina. The plaintiif then introduced his so'n, Alexander Moore, to prove, that he, the plaintiff, was advised by the witness not to assert his title or object to the hiring, and to bid off the slave Ann; which evidence was objected to, on the ground that the conversation between the *277plaintiff and his son,, in the absence of the defendant, was admissible. This, objection was snstained. The defendant then introduced a witness, by whom he proved, that he was the crier at the hiring of the negroes in October, 1842, that when the slaves were offered, as customary, to be let to the lowest bidder, the plaintiff was present, set up no title so far as the witness heard, and bid off the slave Ann at some few dollars. The counsel then by consent read the opinion of gentlemen of the legal profession in Yirginia — also the Revised Statutes of Virginia, and adjudications in that State on the subject of parol gifts of slaves.

The Court instructed the jury, that, if they believed the evidence, by the laws of Virginia parol gifts of slaves, when the donee took possession, were valid; that the mere possession of a slave by a child after marriage was too equivocal to presume a gift, but it required more proof than mere possession ; that in this case it was a question for their determination, whether the plaintiff parted with the possession, with a view of making a gift or a mere loan j that, in coming to a conclusion on this point, they were to advert to the evidence in the cause, the long possession by the defendant’s intestate, the permitting of the slaves to he brought from Virginia to this State, and the plaintiff’s not objecting to the slaves being let ont at the hiring in 1842, and his becoming the contractor to take one himself. If they should come to the conclusion, that tire plaintiff merely intended a loan, they should find for him: if, however, he parted from the possession as a gift, then they should find for the defendant.

The jury found their verdict in favor of the defendant. The plaintiff moved for a new trial, upon the ground of the rejection of the evidence of Mrs. Dupree and Alexander Moore as to the respective points, on which the Court refused to receive their testimony. The motion was over-ruled, and judgment having been rendered pursuant to the verdict, the-plaintiff appealed.

*Kerr,*for the plaintiff,

cited *Iones*v *Sasser,*1 Dev. <fc Bat. 452.

*278J. y, *Morehead,*for the defendant,

contended that cornier-sations between a third person and the wife, in the absence of the husband, could only be admitted in evidence when the wife was acting as the agent of the husband, as in the case of *Torrance*v *Graham,*1 Dev. & Bat. 284. He commented upon the case of *Jones*v *Sasser,*and distinguished it from the present.

Ruffin, C. J.

The controversy in this case turned upon the enquiry, whether Dupree received and held the slaves, as a gift or a bailment from the plaintiff. Therefore, although the case does not set forth the particular declarations of the plaintiff, which he proposed to prove by Mrs. Dupree,- we collect, that the object was to shew', that, a week or two before the plaintiff sent the slaves to his daughter or to her husband, he informed her of his intention to send them, and at the same time declared, that he did not intend them to be a gift, but a loan. That this is a just view of the question,-was admitted in the argument at the bar. This evidence was ruled ou-t. The objection to its admissibility, taken by the counsel on the trial, was only, that the declarations were not made in the presence of the son-in-law. But we gather, that the Court relied on the further ground, that the declarations were not made at-the time the possession of the negroes changed, and that they were not communicated to the son-in-law.

It seems to the Court, notwithstanding those objections, that the evidence was relevant and competent. It is, in substance,- the point decided in *Collier*v Poe, 1 Dev. Eq. *55.*In that case it was held, that declarations of the father to his daughter, in the absence of the husband, that the negroes were lent and not intended to be given, rebutted the presumption of a gift, and converted the husband into a bailee; and that it was not material, that the husband should have been informed thereof, as the wife was the meritorious cause of the loan and had knowledge of it, and he came to the possession as husband. That case, therefore, is a direct author*279ity in this, as to the two grounds, that the father’s tion was declared to the daughter, and not to the husband; and that such declaration was never made known to him. It seems to be likewise opposite to the remaining ground, namely, that the period of the declarations was not exactly the same with that of the delivery of the slaves. In the marginal abstract of the case, it would appear to have been understood as that of. declarations *“*accorirpanying ” the delivery; so as to make a case of *res gestee*in the strictest sense. But the body of the report shews not so near an union between the declarations and the delivery ; for there it is said, that, when the negroes were *u*about being sent,” the father told his daughter that he lent them to her. But, independent the authority of cases, vie think it plain,- that, nothing else appearing, if a father, “a week or two beforehand,” tell, a child, that he intends to lend her some slaves and to send them to her at a particular time, and, when that time comes, the father accordingly sends them,- there is a fair ground of rational inference, that the slaves were sent upon the terms and according to the intention, with which the father had said he would send them.- It is admitted that the point enquiry is, whether, at the time of delivery, a gift or a loan Was meant. Formerly in this State the former was presumed. . In Yirginia, it seems, the presumption is the other way. Surely such *prima facie*presumption of a loan is fortified in a candid mind, by knowing that the father, with a view to an early change of the possession, expressly told the child, that he intended a loan and not a gift, and, that, in fact, the possession was changed so soon afterwards and without any apparent difference in circumstances, as not lead to the supposition of a charge in the father’s mind the mean-while.- What the party says,- at the time of an act, it is well known, is to be heard in explanation of it. But the rule cannot reasonably be restricted to *the*very moment the act. It must be sufficient, that the previous declaration of intention had a direct reference to the future act, the *280character of which is in dispute; shewing that the act was ^ien *n contemplation of the party, and that the declaration was made with the view of qualifying the act and of informing the person, to whom the declaration was made, of the real character of the act, whenever it should be done. There can be no arbitrary rules, therefore, as to the precise time, within which the declarations must be made before the act, so as to be admissible. The natural import of an act ought not to be affected by remote general declarations. But, here, the connection between the intention declared by the father and the sending of these slaves is not dubious, vague or remote, but is direct, plain and almost immediate. He said, that in a short time he would "send certain slaves *to his*daughter, and that they would be sent on loan. In a fortnight he did send them: are we not to infer, that he sent them on loan, as he had declared ? It is upon this principle that the declarations of a bankrupt, before the act of bankruptcy, are received. They shew with what intention the act was subsequently done. *Robson*v *Kemp,*4 Esp. Rep. 233. And from the cases of *Ridley*v *Gude,*9 Bing. 349, and *Rawson*v Haigh, 2 Bing. 99, it appears that there is no positive rule as to time, provided the declarations are connected with the act, by appearing to have been made with a view to the particular act in question and for the. purpose of marking the intention of the parly in the act, when it should be done. If these declarations had been made to the son-in-law himself, every one would feel the force of the presumption, that when the father so soon afterwards sent the ne-groes to the son-indaw, he intended to place them in the possession of the son-in-law, and the latter to accept them, on the terms and no other; on which the parties had previously agreed. The declarations would be deemed substantially *pars res gestee,*although *not made at*the instant of the change of possession. For the change of possession was that very act, in reference to which the party had declared his intention; and, therefore, presumed to have been executed with that intention. Now, as before-said, a declaration of *281a father to the daughter was held, and with plain propriety, in *Collins*v Poe, to be the same as a declaration to the husband, as respects the point now under consideration. The Court is, therefore, of opinion, that there was error in rejecting the evidence of Mrs, Dupree.

We think the testimony of the son, as to the advice given by him to the plaintiff, not to claim the negroes nor object to the hiring by the administrator,' was properly ruled out. It does not follow, that the plaintiff acted on the bad advice of his son and not on his own judgment. It was between themselves and cannot affect the rights of others. It was likened at the bar to' the point ruled in *Jones*v *Sasser,*1 Dev. & Bat. 452. But the cases are essentially different. There, the advice was from the father himself, that a conveyance, which he proposed to execute to all his children, would not affect one he had before made for some of the same property to the plaintiff; who was induced thereby not to make known his title nor oppose the new deed. Those claiming as volunteers under the second and subsequent deed were properly affected by the conduct of their donor. If the present defendant had told the plaintiff, that his claim should not or would not be impaired by his not then making it publicly known,'the cases would be now nearly parallel. The private consultations between the father and the son, not communicated to the persons assembled nor to the person, who was dealing with the slaves as his own, stand on the same grouud with his plaintiff's own inward thoughts, or, at least, with his own conclusion, made known to the son, but adopted on his own judgment and without the concurrenbe of the son.

Per Curiam, Judgment reversed and venire de nova awarded.