#### ALEXANDER and GEORGE TORRENCE, Executors of ANN TORRENCE v. WILLIAM GRAHAM.

Where no particular instructions were asked on the trial, a new trial will not be granted, unless the party praying it can show that the jury was probably misled by the charge of the judge.

When a controversy turns upon the question, whether certain slaves which were put into the possession of a daughter upon her marriage, were intended as a gift or a loan, and there was no written evidence of the transaction, and no precise *formula*was stated by any witness to have been used in it, it is not erroneous in the judge to leave the case to the jury to decide upon all the evidence, whether a gift or a loan was intended.

Where a submission to arbitration was by parol, and the award of the arbitrators was also unwritten, it is not error in the judge to leave it to the jury to decide upon the testimony, what was the true question submitted, and what was the real question decided in the award, and then to instruct them what would be the law, according as their finding might be the one way or the other.

This was an action of trover brought by the plaintiffs to recover the value of certain slaves alleged to belong to the estate of their testatrix, tried at Iredell on the Fall Circuit of 1834, before his Honor Judge Martin.

The defendant set up a claim to the slaves in question, as the administrator of James MlKnight, whose title to them was as follows. James M‘Knight, in the year 1800 intermarried with Betsey Torrence, the daughter of the plaintiffs’ testatrix, and soon after, upon his leaving his mother-in-law’s house with his wife to settle to themselves, the old lady proposed to give him two negro girls; but he declined to receive them, stating that he did not wish to own that kind of property, as he had conscientious scruples about holding slaves. His mother-in-law insisted upon his taking them, alleging that her daughter was weakly, and would need their assistance; but upon his still refusing, she said *285she would send them, not as his, but as the property of Betsy his wife; and upon these conditions he agreed that they might be sent. The slaves were accordingly sent to his house, and remained in his possession until his death in 1831. Ann Torrence, the mother-in-law of M‘Knight, lived only about one year after the marriage of her daughter, and just before her death, having called in one John Harris to write her, will, she sent a messenger to see M‘Knight about the negroes, in order, as she said, that she might “settle the matter about them in her will.” M'Knight stated to the messenger that he did not want the slaves, *u*there they were, the old lady could send and take them away.” Several witnesses were examined to prove that M‘Knight always disclaimed the ownership of the slaves ; though it appeared that on one occasion, he stated to a witness that he had once sold one of the negroes conditionally to a man by the name of Hargrove, but that his wife objected and the bargain was annulled. After the death of Ann Torrence, the executors came to demand the slaves ofM‘Knight, when it appeared that he was willing to deliver them up, but his wife was not; whereupon it was agreed to leave it to arbitrators, “ to decide what Mrs. Torrence intended should be done with the negj’oes. The day was appointed, and it was left to Messrs. Huggins and Meeks, who called on John Harris. The referees decided that it was the old lady’s *wish*for her daughter, Betsey M‘Knight, to have them during her life, and that she should *have*them accordingly.” ' M'Knight then said, that if Betsey was under the sod, they might take them immediately. The slaves were not mentioned in-the will. Betsey M'Knight died before her husband in 1830.. After the death of M‘Knight, the slaves were demanded of his administrator, and upon his refusal to deliver them, the suit was commenced in 1832.

His Honor charged the jury, *“*that it was for them to decide whether the slaves in question had been given or lent to Betsey M‘Knight, the wife of James M‘Knight; that if they had been given to the wife, and nothing said by the husband, it would vest the title in him; but that if it was proposed to give property to the wife, and the hus*286band expressly refused it, the title would not vest in him. If a slave was offered as a gift to the wife of a man who had conscientious scruples about holding such property, and he expressly refused to receive it in that way,, no title would pass; but as to the refusal to accept, they would take into consideration all the evidence bearing upon that point; the long possession, the sale to Hargrove, and every other circumstance bearing upon it. If it was a gift for life, the entire estate in the slaves would pass thereby, for there could not be reserved a remainder after a gift for life. As to the arbitrament and awaz’d, it seemed that it was submitted, and they decided that as it was the old lady’s intent and wish that her daughter should hold the slaves for her life, they therefore awarded them to her for life. Still they would decide from the evidence of the submission whether it was the loan for life, or the gift for life. Upon the whole, if it was a loan, find for the plaintiffs; but if it was a gift, either absolute or for life, find for the defendants.” The plaintiffs had a verdict and the defendant appealed.

During the progress of the trial, some objections were made to the competency of evidence. A witness for the plaintiffs spoke of a meetingof *the heirs*and connections of Mrs. Torrence after her death, at which Mrs. Betsey M'Knight was present, but her husband was not; and was proceeding to state the conversation and agz-eement of the parties, when the defendant’s counsel objected to the evidence ; but the objection was overruled by his Honor, upon the ground that it was inferable fi-om the facts already stated, that the husband had assented to the agency of the wife as to the slaves. Another witness, who was one of the next of kin of the testatrix of the plaintiffs, was called, but objected to, whereupon he executed a release of his interest in the slaves in dispute to one of the executors, and being still objected to, he was admitted, as it did not appeaz’, nor was it alleged, that he had any interest in the said estate, except in the said slaves. These objections were not insisted upon by the counsel in this court.

*Pearson,*for the defendant.

— The judge below made *287this case turn upon a difference between a gift for life and a loan for life. A gift and a loan are different, as a loan is a limited gift; but a gift for life and a loan for life are the same, being both limited gifts. And as a gift for life vested the entire interest, so will a loan for life, for the same reasons. Formerly, it was thought that there could be no limitation after a life estate, even by will. Then a distinction was taken between a gift of the *use,*and of the chattel itself. This distinction is now abolished. *Manning’s case,*8 Rep. 187. *Lampet’s case,*10 Rep. 46. *Hyde*v. *Parrat,*1 Peere Williams, 1. *Foscue*v. *Foscue,*3 Hawks, 538. Fearne Cont. Rem. 406.

1st. The loan or gift for life by Ann Torrence to her daughter, vested the entire interest in her husband. For, although M'Knight refused to receive the slaves himself, yet, as he assented to the loan to the wife for life, the slaves by operation of law became his property.

2d. The award of the slaves to *the*wife for life, acquiesced in by the executors, vested the entire interest in the husband, free from the idea of a gift or loan; and also from the dissent of the husband. And the judge should have so charged the jury, and not have left it to them to decide from the evidence, what should be the effect of the award. An award *in pais*acquiesced in, is an agreement executed, or a bargain, and although by parol, would, before the act of 1806, *(Rev. ch.*711,) have vested the title to slaves.

*Badger,*for the plaintiffs.

— It is not contended that there is a difference between the use of the slaves for life, and the slaves themselves for life; the *use*of a thing, and the thing itself being in law the same. But the rules of construction contended for by the defendant’s counsel does not apply here. We have nothing but the verbal declarations of the parties; there is no formal instrument; and the intent of the parties as collected from their declarations are to govern. Here it was the intent of the parties that no interest at all should pass, but merely an indefinite loan at the will of the mother. It was not a vesting of the title to the slaves. Wherever a question arises upon verbal declarations, the court cannot lay down the same rules of construction as upon instruments in writing.

*288No specific instruction was prayed as to the effect of the will, yet still the judge left it as a circumstance to the jury. As to the award, nothing was submitted to the arbitrators but simply to ascertain the intention of the mother with respect to her daughter’s possession of the slaves. They were not authorised to make any order for carrying the intention into effect. The award did not affect, nor design to affect the title, but only declared what was the old lady’s meaning with respect to the possession.

*Pearson,*in reply.

— The construction upon the words of an instrument, and words proved by parol must be the same in legal effect. The former construction as to the difference between the *use*of a thing and the thing itself, was founded upon the very same reasons, as the distinction now taken, and as the one has been abolished, the other cannot hold.

The award was that the wife “ *should have”*the slaves during her life; and the award itself is more certain than the testimony of witnesses as to what was intended by it.

Gaston, Judge.

— As no specific instructions appear to have been asked by either party on the trial, the defendant is not entitled to a new trial, unless he can show that the jury was probably misled by the charge of the judge. Upon a fair construction of the charge, we think that it is not liable to this imputation. The main question in controversy was the intention with which Mrs. Torrence parted with, and Mrs. M'Knight took the possession of the slaves. It was *then*the settled law that if a parent put personal property, into the possession of his daughter soon after her marriage, it should be presumed *prima facie,*that the property was given absolutely in advancement of the daughter, but that this presumption must yield to proof that the property was only lent. *Carter’s Executors*v. *Rutland,*1 Hay. Rep. 97. *Killingsworth*v. *Zollicoffer,*2 Hay. Rep. 72. *Robinson*v. *Devane,*Ibid. 154. Much evidence was offered tending to show that the negroes in question had not been given, but lent. And the Judge was perfectly correct in leaving this part of the contro*289versy to the jury, with directions to decide, upon all the 'evidence, whether it was a loan or a gift. If a loan, the law pronounced its effect to be that of a bailment, revocable at the will of the bailor. We need not perplex ourselves with the question, what interpretation it would put upon the case proposed, of a *loan*expressly declared to be *for life.*No witness testifies to any precis *(¡formula*which was used in the transaction, so as to render it necessary to determine upon its technical operation. The transaction . *~*, , , . . was informal, and the proper inquiry was to ascertain from the acts and declarations of the parties, and all the other attending circumstances, whether it was thereby intended to transfer any legal dominion in the slaves themselves, or only to permit them to be held free from hire, until the owner should think proper to redemand them.

It is insisted, however, by the defendant, that whatever might have been the understanding or contract when the negroes were put into Mrs. M'Knight’s possession, the award of the arbitrators gave a legal title for life, and that this, in the case of a chattel, constitutes the entire dominion therein; and that therefore the charge of the J udge was on this point erroneous. Before we examine whether such would be the operation of an *award*in those terms, it is well to inquire what were the instructions in relation to the award. The statement of his Honor’s opinion on this part of the case, is given so briefly as to render it somewhat obscure. But it was the duty of the party who excepts to the opinion, to see that it should be so spread upon the record, as to enable us to determine whether in truth it bears the interpretation which he affixes to it. We are not permitted to doubt but that it -would have been stated more fully, had it been desired by the defendant, so as to present distinctly, the views which the Judge intended to convey. Examining the opinion as expressed, in connection with the statement of facts to which it applies, we understand it to be free from this objection. It had been testified that a short time before Mrs. Torrence died, she sent for John Harris to write her will, and despatched the witness to M‘Knight to see him about the negroes, in order that the disposition of them might be settled in her will. *290He would not have them as property, and the will was silent about them. After Mrs. Torrence’s death, the executor’s demanded the *immediate*possession, which M'Knight was willing to surrender, but his wife objected. It was then agreed to leave it to men to say “ what Mrs. Torrence *intended*should be done with the negroes.” There was no written submission, and therefore it is difficult to say what was its definite purpose; whether the parties meant that the arbitrators should pass upon the question of *legal*ownership or of *equitable title,*or only to ascertain what arrangement among the children of the deceased would best accord with the wishes of their mother. The referees called on John Harris; and after hearing him they decided (said the witness) “ that it was the old lady’s *wish*for Mrs. M'Knight to have them during her life, and she should have them accordingly;” and M'Knight remarked, that if his wife were dead *they*might take them *immediately.*This was not in writing; it was made thirty years before the trial, and it is impossible to suppose that the precise words of it could be stated. In reference to this representation of facts, the Judge remarked, that it seemed “ that it was submitted, and that the arbitrators decided, that as it was *the old*lady’s wish that she should hold the negroes for life, they therefore awarded them for life; but still the jury would decide from the evidence of the submission, whether it was the loan for life or the gift for life.” That is to say, as we believe it plainly imports, there is evidence of a submission to arbitrators in regard to these negroes now alleged by the defendant to have been given, but insisted always by the plaintiffs to have been only lent. There is evidence of a determination by the referees that Mrs. Torrence wished her daughter Betsey to enjoy them during life, and that therefore she ought to do so; but upon the evidence it remains for the jury to say whether the arbitrators decided more than that the negroes had been lent; that Mrs. Torrence did not wish the loan countermanded during Betsey’s life; and *that*therefore she should be permitted, by those interested in the estate, to hold them as lent, so long as she lived; or whether they decided that the negroes had been given for life, and that therefore she should hold *291them for life. If they put the former construction on the award, they were advised to find for the plaintiffs; but if the latter, then to find for the defendant. Of this advice, it seems to us, the defendant has no right to complain.

Some objections were taken below to the evidence, which have not been insisted on here, and which we think were properly waived.

Per Curiam. Judgment affirmed.