#### *Harriet Watson*v. *Joseph Kennedy et al.*

When a father, on the marriage of a son, delivers to him a slave, or permits the slave to go home with him, or sends the slave to him, it is *prima fade*evidence of a gift; but the presumption may be rebutted by proof of the circumstances under which the parent gave possession to the child: and for this purpose the declarations of the parent when the delivery was made, are admissible to ascertain *whether*a gift or loan was intended; *provided,*these declarations were made to the child m person, or to another who communicated them to the child in a reasonably short period afterwards.

A son-in-law is a competent witness to prove that slaves delivered to him on his marriage, by the parent of his wife, were intended as a loan and not as a gift; but when his testimony is presented under suspicious circumstances, it will not *of itself*be sufficient to overthrow the claims of his creditors to the slaves.

The resumption by a parent of slaves which she had delivered to her son-in-law on his marriage, and her undisputed assertion of ownership, and continued possession of them for four years, are sufficient to invalidate the claims of *2those seeking to subject them to the payment of debts contracted by the son-in law subsequent to the resumption. Such resumption is sufficient to rebut the presumption of a gift.

*1Columbia,

May, 1849.

*2Where one executed a bill of sale of slaves to a connection who was in embarrassed circumstances, but a few days before judgments, which would have subjected them, were entered up against him; and where the circumstances of the transaction were generally of a suspicious character; the Court *held*that the evidence of the vendor was not sufficient to rebut the presumption that the sale was intended as a fraud upon his creditors.

Complainant preferred before the Courtafraudulent'title, from her insolvent son-in-law, to a slave who was properly and legally in the hands of the sheriff for sale, and obtained an injunction against the sale. During the time the sheriff was restrained by the writ of injunction, the slave died. The Court ordered that the complainant should account to the execution creditors ofher son-in-law for the value of the slave at the time of her death, and the interest thereon from date.

*Before*Caldwell, Ch. *at Winnsborough,*July, 1847.

This was a bill for the specific delivery of four slaves, a negro man Berry, a negro woman Charlotte, and her infant child, and a negro girl Jane; upon whom it is alleged A. W. Young, sheriff of Fairfield District, has levied executions against Joseph Kennedy, and prays that the sheriff may be restrained from executing the writs of *fi. fa.*against the slaves, the property of the plaintiff. The answer of John Z. Hammond, Esq., one of the defendants, states that Joseph Kennedy, in A. D. 1837, intermarried with Eliza Watson, a daughter of plaintiff, and shortly afterwards received into his possession, as part of the portion of his wife, from the estate of her father, -Hardaway Watson, deceased, the negro woman Charlotte, and (as he is informed and believes,) Henry; since which Charlotte has had a number of children, but he does not know with certainty how many. That Ann Robertson, grandmother of Eliza Kennedy, made a will, of which exhibit is a copy, in which Berry was specifically bequeathed to Eliza Kennedy, Sarah Stitt, John D. Watson and James Watson, her four grand-children, and if either of them should die without issue, then the survivor or survivors to take the share of such deceased in the negro man Berry. Sometime after the said marriage, Joseph Kennedy purchased the interest of John D. Watson in Berry, since which, John D. Watson and James Watson have both died, leaving Kennedy entitled to an interest in Berry amounting to about three fourths of his value. That Kennedy retained possession of Henry and Charlotte till sometime in 1842, and they were known and recognized as his property, and in fact he may have been said to have retained possession of them up to the time he left the State for Mexico, (sometime in 1847,) as he and his family resided with plaintiff up to that time, with the *3exception of a short period, during which he was engaged in business in Winnsborough and Columbia, with whom the ^ last mentioned negroes also lived. That Kennedy, on 5th November, 1842, made a bill of sale to plaintiff, of a negro woman Jane, whom he had purchased of Isaiah Crankfield, and all his interest in Berry, which took place a few days before the sitting of the Court of Common Pleas for this District, at which Court a number of judgments were obtained against him, and defendant believes that the bill of sale was executed without any valuable consideration, and wholly with a view to defraud his creditors. That plaintiff, on the 24th of February, 1845, voluntarily, and without any, save a nominal consideration, conveyed to Thomas Stitt, her son-in-law, in trust for the use of Eliza Kennedy and her children, four negro slaves, to-wit: Henry, aged about thirteen; Mary, about thirty five years; Caroline, about three years, and Sylvia, about eighteen months ; together with her share or interest in a tract of land on Wateree Creek, in the District and State aforesaid, — which property, defendant believes, and in fact has no doubt, was conveyed in trust for the uses aforesaid, because Joseph Kennedy had conveyed to plaintiff the said negro woman Jane, and his interest in the negro man Berry, for the purpose of defrauding his creditors. Defendant believes that Joseph Kennedy paid to plaintiff a full consideration for all the property specified in the deed of trust, except what already belonged to him before the execution of the same. That he is largely indebted to defendant, and unless the slaves, Henry, Jane, Charlotte and her children, and the interest of Kennedy in Berry, be held liable to the payment of his debts, the defendant must necessarily sustain losses to a large amount. Defendant prays for a sale of the slaves, and the proceeds to be applied to the payment of the debts and liabilities of Joseph Kennedy.

John Simonton made an affidavit that he heard the answer of Hammond, and although not familiar with all the facts as there stated, he believes them to be true, and adopts the answer as his, according to his belief.

Many witnesses were examined, and all necessary notice of the evidence is taken by the Circuit and Appeal Decrees.

The following is the Circuit Decree.

Caldwell, Ch. Many acts of a parent towards a child are construed as gifts, which between other persons would be mere bailments. When a father on the marriage of his son either delivers him a slave or permits the slave to go home with him, or sends the slave to him, it is *prima facie*evidence of a gift; but the presumption may be rebuted by proof of the circumstances under which the parent give possession to the child : and for this purpose the declarations of the pa*4rent when the delivery is made are admissible, to ascertain whether a gift or a loan was intended, although made in the ^ absence of the child. The embarrassment of the plaintiff and her inability *to*pay her debts — her conversation with her brother about making a gift of slaves to her son-in-law, from which he dissuaded her; her possession of the slave Charlotte from 1839, are corroborating circumstances to support the positive proof of three witnesses, who testify that she delivered the negro woman Charlotte *as a loan, and not as a gift,*to Joseph Kennedy. The mere opinion of witnesses, drawn from Kennedy’s possession of the slave, that she belonged to him, is insufficient to outweigh this proof; and his subsequent insolvency, however it has disappointed his creditors, cannot affect the plaintiff’s rights or change a loan into a gift. The question is made as to the competency of the witnesses, Jos. Kennedy and his wife Eliza Kennedy, on the ground that they had an interest in the case, and that plaintiff had made a deed of four negroes, Mary, Henry, Caroline and Sylvia, to Thomas Stitt, in trust for the use of Eliza Kennedy’s children ; but the objection cannot be sustained on either ground. Joseph Kennedy would not have been a competent witness to prove that the slaves levied on by the sheriff were his property, as his testimony would have the effect of increasing the means of paying his debts; but he was called to testify against his interest, and although a defendant, he was competent, as it did not appear that he had either any legal or equitable interest involved in this case; the interest of husband and wife is identical, and their testimony was held competent. The next question was as to the slaves, Berry and Jane — it appears that Ann Robertson, the grand-mother of Eliza Kennedy, bequeathed that Berry and other slaves “be loaned to my six sons, Ephraim Watson, Wm. Alex’r. Watson, John Watson, James Watson, Robinson Walker Watson and Hardaway D. Watson, share and share alike, each to hold his equal share of said negroes, for and during the term of his natural life, and upon the decease of any of my said sons, his share shall descend to his heirs lawfully begotten ; but should any of my said sons die without lawful issue, then and in that case my will is, that his part or share of the above negroes shall be equally divided among the lawful heirs of. my other sons.” Hardaway Watson died intestate, and Col. William Moore administered on his estate, but did not sell Berry, as he thought he belonged to the children of the intestate, and it appears from the evidence, that Joseph Kennedy sold the slave Jane and his wife’s interest in Berry to the plaintiff, on 5th November, 1842, and states that he owed plaintiff $145, that he received of her $130, and borrowed $70 of Dr. Watson, making $200, which he paid in the case of Jackson, *5Capers & Co., that plaintiff paid him $400 in cash, out of which he returned $70 to Dr. Watson, and paid $200 on the, Bowie case against Kennedy & Hammond; doesn’t remember what he did with the other one hundred and thirty dollars, possibly paid it to some of his debts ; and this is corroborated by the fact, that these payments were made by him in the she: iff’s office ; but there is some obscurity about this trade with the plaintiff, and great doubt has been cast upon her raising the sums of money (it is alleged) she paid him. His statement is, that he sold her cotton crop, and the money arising from it was what she paid him. She was in debt; had been pressed for money, and could’nt pay it, and yet she makes purchases of negroes, to the amount of more than seven hundred dollars. When one is on the verge of insolvency, a transfer of his property to a connexion who is also embarrassed, is generally calculated to raise a doubt as to the fairness of the transaction. Joseph Kennedy was called to explain the circumstances under which the credits on the plaintiff’s accounts were entered on the books of Joseph Kennedy & Co.; but his account of the credits and the sale of the ne-groes, Berry and Jane, although such transactions, when *bo-na fide,*are generally easy to be explained, was far from being satisfactory. His testimony, however, was not contradicted, nor was any witness called to impeach his general character; hut it was established that he had made a note in the name of *Joseph Kennedy*& *Co.,*for twenty-five hundred dollars, payable to Shannon <fc McGee, after the dissolution of the partnership, for a demand not due by them, nor in any way connected with their partnership business ; that suit had been brought on it against the firm, and the verdict of the Jury had been given against it. There were some circumstances that corroborated his statement about his payiny money into the sheriff’s office, that he said he had received from the plaintiff, and the testimony of the plaintiff’s daughters went to prove that she raised from thirty to fifty bales of cotton, per annnm, and had, therefore, probably the means of paying the amount for which he said he sold the negroes, and it was possible that she might have raised money enough to pay her accounts, although it was not very probable. As to the exchanges of Ephraim and Mariah, by the plaintiff, with him, for Charlotte, the proof appeared to put his possession of them on the same footing as the loan of the latter, and, therefore, they could not be considered a gift. The slave Jane has died since the filing of the bill, and is no longer the subject of suit.

After considering and comparing the circumstances that cast suspicion on the sale of the slaves, I have come to the conclusion, with some hesitation, that they are not strong enough to overthrow his positive statement. The plaintiff’s *6claim to Berry must, therefore, be sustained against the exe-j cutions and levies mentioned in the pleadings. It is ordered and decreed, that the defendants be perpetually enjoined from enforcing the executions aforesaid, against the slaves, Berry, Charlotte, and her child, the property of the plaintiff, but without costs.

The defendants appealed from the decision of his Honor, and moved the Court of Appeals to reverse the same, on the following grounds, viz:

1st. Because his Honor erred in receiving the testimony of Joseph Kennedy and wife, as they were evidently interested in the result of the suit.

2nd. Because there was a clear case of fraud made out against defendant, Joseph Kennedy, who had been active in. procuring the bill to be filed, and whose answer admitted every material allegation — and whose conduct, from begining to end, was of the most suspicious character, and bore evidences of fraud at every step. His Honor should, therefore, have disregarded the testimony, both of him and his wife, and should have decreed the property in dispute liable to the payment of his debts.

3rd. Because the decree was in other respects contrary to law, and unsupported by any testimony, save that of the family connexion of Joseph Kennedy, which was outweighed by a multitude of suspicious facts and circumstances in the case.

*MDowell*and Rutland, for the motion.

Boyce, contra.

*Curia, per*

DaugaN, Ch.

The Chancellor who heard this case, in defining the law applicable to the subject, holds *the*following language:

> “ When a father, on the marriage of a son, delivers to him a slave, or permits the slave to go home with him, or sends the slave to him, it is *prima facie*evidence of a gift; but the presumption may be rebutted by proof of the circumstances under which the parent gave possession to the child : and for this purpose the declarations of the parent, when the delivery is made, are admissible, to ascertain whether a gift or loan was intended, although made in the absence of the child.” The whole of the foregoing proposition is, in my opinion, perfectly unexceptionable, save that part which asserts that the declarations of the parent, made in the absence of the child, are admissible to ascertain whether a gift or loan was intended. The language in which the proposition is stated, implies that such declarations would be admissible, to ascertain whether a gift or loan was intended, although the child should not be proved to have known that the declarations were made, which qualified his possession into a *7loan. It might not be very material whether the qualifying declarations should be made to the child in person, or to an-( other who, in a very short period afterwards, should comma-nicate to the child the qualifying conditions annexed by the declarations of the parent to the transfer of possession. But, in my opinion, the declarations of the parent, made in the absence of the child, though accompanying the transfer, and though competent, as a part of the *res gestee,*to be offered in evidence, should be utterly unavailable in qualifying the transaction into a loan instead of a gift, unless those qualifying declarations are shewn to have been communicated immediately to the child, or brought home to his knowledge within a reasonably early period afterwards. And this I take to be the settled law of the land.

x N_ & McC_ 221.

4 McC. R. 251.

McMul. Eq. 115-

in.&McC. 224-

1 Rich. Eq. 310'

In *Banks*v. *Hatton*it is indeed said that such declarations are competent. There, the father called on his other son and family to witness that he sent the negroes as a loan. But, notwithstanding the accompanying declarations of the father, the gift was established, although it was proved that the son had said he had been offered a great price for the negroes, and if they liad been his, he would have taken it; and to another witness, had acknowledged that the negroes belonged to his father. Thus it appears that the very case from which the objectionable principle here commented on has been deduced, goes far to establish a contrary doctrine.

In *McCluney*v. *Lockhart*Judge Colcock says, “the and well established doctrine is, that the presumption of a gift may arise from the circumstance of a parent’s sending a slave to a married child, and suffering it to remain in possession of such child, *without any express stipulation on the*subject.”

In *White*v. *Palmer*the negroes had been suffered to go into the possession of the son-in-law on his marriage, .and, shortly afterwards, the father-in-law executed a deed, by which the negroes were intended to be settled upon his daughter. It was held that the deed was void as to creditors, unless its execution had been with the consent and privity of the husband at the time, or accepted by him. The remark of Judge Nott, in *Bradshears*v. *Blossingame,*that conditions annexed to these marriage gifts were not to be encouraged, was quoted with approbation by the Chancellor who delivered the decree of the Court. And in the course of his remarks he says, “ I think it should be clearly shewn, that it was the understanding of all parties, and especially of the husband, that it was meant as a loan and not a gift.”

In *Eddings*v. *Whaley,*Chancellor Dunkin, in his decree, holds the following language on the subject. “The legal effect,” says he, “of the possession, under the circumstances, is to confer title. The defendant must prove that it was a *8loan. It is not enough, that he intended in his own mind to reserve a control over the properly. If the possession of the plaintiff was such as, *-prima*facie, completed his title, no mental reservation on the part of the defendant could defeat this legal consequence. There must have been some express stipulation at the time, distinctly understood by both parties, in order to give effect to such an intention. It is not á question of what he intended, but what he actually did.” The decree of the Court of Appeals, by Chancellor Johnson, affirming the circuit decree, is of a corresponding tenor. I quote his concluding remarks — “where nothing but an absolute gift is intended, nothing but delivery is necessary. If it is intended to qualify it, the parent ought to, and I think would, express it. He could not be so unjust to his child as to raise expectations, with the secret intention of mortifying him by defeating them.”

It seems to me that the parent’s annexing a condition to the delivery oí possession, in the absence of the child, in the presence of a third person who may never communicate it to the child, is in no particular more just or reasonable than a mental reservation. The act of transferring the possession, in legal effect amounts, *prima facie,*to a gift. In delivering possession of the negro to his son, or son-in-law, as the case may be, in the understanding of the law, he says, “ I give you this negro.” And, *aside,*he says to some third person, his own wife perhaps, or some other member of his family, *“*I do not give but I lend.” This is unjust to the child, is calculated to raise illusory expectations, and is breaking the word of promise, both to the ear and the sense. These secret conditions are intended only to be used on certain contingencies. If the daughter dies, or the son or son-in-law becomes a bankrupt, or there is strife and misunderstanding between the parent and child, the gift is reclaimed. Otherwise, the possession of the child is scarcely ever sought to be disturbed.

In the case, however, now before the Court for its judgment, the discussion foregoing may be considered rather in the nature of an abstract inquiry, and is intended only to prevent misconception of what might appear an acquiesence in an erroneous exposition of an important principle of law ,• an exposition tending to unsettle, in my judgment, former adjudications. This court is unanimously satisfied with the *result*of the Chancellor’s decree in reference to the negroes Charlotte and her children, claimed by the defendants, the creditors of Joseph Kennedy, to have been given as a marriage gift to his wife by her mother, Harriet Watson, the complainant. The claim to these negroes is advanced in behalf of the creditors of the alleged donees, and, as usual in such cases, the alleged donees are presented as witnesses against *9the gift. Accordingly, Mr. and Mrs. Kennedy, and another daughter of the complainant, (Mrs. Stith) making quite a family group, all assail the transaction as being a gift. The two ladies do not testily to circumstances deemed very material, being, mostly, declarations of Mrs. Watson that the negro was loaned, but they do not say particularly that these declarations were made to Kennedy at the time of the transfer of the possession. Kennedy, however, comes forward, and testifies positively to the fact- that he received Charlotte from his mother-in-law as a loan and not as a gift. This witness was properly held by the Chancellor to be competent. But the circumstances under which his evidence is presented, subtract largely from the weight of his testimony. *His*evidence would not have been sufficient of itself to have overthrown the claims of the defendants, his creditors, to Charlotte and her children. But there is a fact — a strong ,and incontestable fact, which stands out in bold relief, and which speaks in unequivocal language against the claims of the defendants. The fact to which I allude is, the resumption of the possession by Mrs. Watson in 1839, and her continuing in the unquestioned control of the negroes from that time till 1842. There are no existing debts of Kennedy, incurred by him at the time he was in possession of Charlotte; nor does it appear that he owed any debts at all during the time (two years) that his possession continued. There was a total absence of all motive, save a respect for her known and acknowledged rights, to induce him to acquiesce in her resumption of the property, and her subsequently long continued possession. His acquiescence for four years in her possession and asserted ownership, is sufficient, in the judgment of this court, to rebut the presumption of a gift; particularly when corroborated by the other evidence offered. So much of the Chancellor’s decree as adjudged the right and title of Charlotte and her two children to. be in the complainant, Mrs. Harriet Watson, is, therefore, affirmed.

The facts in reference to the other negroes mentioned in the pleadings, Berry and Jane, present different questions. The title to Berry was devised to Joseph Kennedy, as follows. Mrs. Ann Robertson, by her will, bequeathed Berry to Eliza Kennedy, Sarah Stith, (who was Eliza Kennedy’s sister,) and to John D. Watson and James Watson, who were her brothers, and all of whom were testatrix’s grand children. Sometime after his marriage, Joseph Kennedy purchased the interest of John Watson in Berry. And James Watson having died without issue, Joseph Kennedy became the owner of an interest in Berry, amounting to about ■§• of his value. Mrs. Stith, in her own right under the will of Mrs. Robertson, is the owner of one-fourth, and as survivor of James Watson, to one-half of one-fourth. Jane was pur*10chased by Kennedy of one Crankfield. Being the owner of Berry and Jane as above stated, he conveyed to his mother-in-law, the complainant, on 5th November, 1842, by a bill of sale bearing that date, the negro woman Jane, and all his interest in Berry, for a consideration, expressed in the deed, of $675. This was done on the Thursday before Fall Term of the Court of Common Pleas for Fairfield District, in 1842; at which term a number of judgments, amounting, in the aggregate, to a large sum, were entered up against Kennedy. No money is proved to have been paid, except by Kennedy himself. The deputy sheriff does prove that about this time there were payments made in the sheriff’s office, to the amount of about four hundred dollars. But it is not shewn, except by the evidence of Kennedy, whence the money was derived. And there was an obvious purpose for which these payments were made. It was to remove the incumbrances of existing executions, which would have disturbed and defeated the title which he had just made, or was about to make, to his mother-in-law. One of the payments was made before and one after the date of the bill of sale.

On the 24th February, 1845, the complainant voluntarily, and without any, save a nominal consideration, conveyed four negroes to her son-in-law, Thomas Stith, for the use of Eliza Kennedy’s children. The complainant herself was embarrassed with debt, owing a considerable amount to one Cathcart, which she was unable to pay, or, at all events, did not pay. There was an account against her on the books of Joseph Kennedy & Co. of $829 42, which the clerk of the firm testified was balanced in an irregular and suspicious manner. And the Chancellor states that Joseph Kennedy was called on to explain the circumstances under which the credits on the plaintiff’s accounts were entered on *the books*of Joseph Kennedy & Co. but his account of the credits, and the sale of the negroes, Berry and Jane, although such transactions, when *bona fide,*are, generally, easy to be explained, was far from satisfactory.

The evidence of Kennedy, in the opinion of this Court, is not sufficient to resist the presumptions arising under all the facts of the case, as they have been detailed, that his deed to Mrs. Watson, for Berry and Jane, was intended as a fraud against Kennedy’s creditors. And such seems to have been *almost*the conclusion of the presiding Chancellor, and he offers some most cogent reasons for such a conclusion.

The negroes having been levied on, the bill of the complainant was filed in April, 1844, and an injunction then obtained against the sale. The writ of injunction, of course, arrested the sale, and all further proceedings by the sheriff, in behalf of the defendants, as the creditors of Kennedy. In October, of that year, Jane died. The Chancellor held that *11the controversy between the complainant and the defendants, as to Jane, was put at rest by her death. This Court is of a ( different opinion, and considers the case as analogous, in this particular, to that of *Fraser*v. *McClenaghan.*In the latter case, the complainants filed their bill against the defendant for the recovery of specific negroes. After the bill was filed, and during the pendency of the suit, *two*of the negroes' died. The Chancellor who heard the case decided that there could' be no recovery in that proceeding for the deceased negroes, and dismissed the bill as to them. But, on appeal, this decision was reversed, and it was held that Equity, having jurisdiction of the case at the institution of the suit, did not lose its jurisdiction by this dispensation of Providence ; and the decree was, that the defendant should account for the value of the negroes that had died. The principle applies with still greater force of reason to the case in hand. The complainant has preferred before this Court a false and fraudulent title to a negro that was properly and legally in the hands of the sheriff for sale, and for the satisfaction of the just claims of the defendants against her son-in-law, Joseph Kennedy. She has, by the order and the process of this Court, arrested the sale, and during the continuance of the restraint which she has caused to be imposed upon the defendants in seeking their rights, Jane has died. If the complainant had not interfered, Jane would have been sold, and the proceeds of the sale have been applied, *pro*tanto, to the satisfaction of the defendants's executions.' The death of one who does not die from the effects of old age, depends so much upon accident and locality, that Jane, who was young, and, so far as appears,- healthy, would, probably, now be living, or, at all events, have been sold before her death, and the defendants have enjoyed the benefit of her sale, but for the interposition of the complainant. Her unjust interference, based upon a fraudulent title, has occasioned this loss to the creditors of Kennedy. And every principle of justice requires that she should be made to place them *in statu ante helium.*And this cannot be done without she accounts for the value of Jane, at the time of her death, and the interest thereon from that date.

Strob. Eq. R. 227.

It is ordered and decreed, that so much of the Circuit decree as perpetually enjoins the sheriff from proceeding to sell the right and title of Joseph Kennedy in the negro Berry, under and by virtue of the executions in his hands in favor of his co-defendants, be reversed. It is also ordered and decreed, that the injunction heretofore ordered against the sale of Berry, be dissolved, and that the said sheriff do proceed to sell all the right, title, and interest of the said Joseph Kennedy in the negro Berry, under the executions in his hands, and that he apply the proceeds of the sale to the said executions, according to their legal priority.

*121 N. & McC. 223.

MSS. Ca.. Col. May, 1849.

2 Rich. L. Rep. 106.

It is also further ordered, that the complainant do account to (the defendants, who are the execution creditors of Jos. Kennedy, for the value of Jane, and interest thereon from the time of her death. It is also ordered, that it be referred to the Commissioner in Equity of Fairfield District to inquire and report as to the value of Jane and the interest as aforesaid. It is also ordered, that when the report of the Commissioner shall have been made and confirmed, that the complainant pay the amount thus found due to the Commissioner of this Court, and that the Commissioner pay the same to the execution creditors of Joseph Kennedy, parties defendants to this suit, according to their legal priorities.

Dunkin, Ch. concurred.

Johnston, Ch.

I concur, except as to so much of the opinion of Chancellor Dargan as suggests that declarations of a donor cannot affect the donee, unless brought to his knowledge. I doubt whether such declarations, if made in *good faith,*may not very properly qualify the character of the gift.

Caldwell, Ch.

dissenting. I dissent from the attempted qualification of the rule, that the declarations made by a father when he sent negroes to a child, are admissible to ascertain whether a gift or a loan was intended, though made in the absence of the child; this was expressly ruled in *Hatton*v. *Banks,*which was decided upwards of thirty years ago, and I know of no case in the Court of Law. that has, since that time, in the slightest degree, modified the principle. In that case the presiding Judge charged the jury, that th§ declarations of the father, when he sent the negroes to the plaintiff (his son-in-law) should have *no weight*in their determination, because the plaintiff *was not 'present:*and that they should not regard the declarations of *the*plaintiff (who had said he had been offered a great price for them, and that if they had been his he would have taken it) because he might be ignorant of his right. The Court of Appeals *held,*that as the case turned on the question, was this a gift or a loan, these circumstances were entitled to consideration, and were strictly within the rules of law.

Independently of this decision and the recognition of the rule in subsequent cases, it is clear that such a declaration, as a part of the *res gestee,*was competent. *Booth*v. *Dunning.*What is said in doing an act, is often such an important and inseparable incident, that it alone can shew the motive of the action and characterize the act. The case of *Parris*v. *Jenkins*is a striking illustration: that was an action of trover, by the father-in-law against his son in-law, for a negro woman, Emily, and her three children, who had gone, in some way unexplained, into defendant’s possession in 1838, the year after he married plaintiff’s daughter, where *13they had remained till the spring of 1841, when they were brought in a wagon by the driver, *a negro*of the plaintiff, to the plaintiff’s; the negro told the defendant that his master had sent for Emily to help a little while about his crop, as he was backward. They remained at the plaintiff’s about two months, and then returned to defendant’s. The declaration of the negro was held competent as a part of the *res gestee.*“ It is just,” says Justice Wardlaw, delivering the opinion of the Law Court of Appeals,. “ as if Jenkins, adopting the words of the negro, had said when he sent the woman, ‘ I send her to help a little while, because my father-in-law is backward,’ and so the words are a part of the *res gestee*— an explanation, by cotemporaneous acts or declarations, of the motives or objects of the principal act, which would otherwise be of ambiguous or contrary import.”

1st. Phill.Ev. 231, Note 444, p. 585, vide Cases cited in margin,

*1*Starkie on Ev x302,268.

l Green, Ev. sec-108‘

The principle that declarations cotemporaneously made with doing an act are competent, is recognized and illustrated by every elementary writer on evidence. Phillips says, “hearsay is often admitted in evidence, as constituting a part of the transaction which is the subject of inquiry ; the meaning of which seems to be, that when it is necessary in the course of a cause to inquire into the nature of *a 'particular act, or the intention of the person who did the act,*proof of what the person *said at the time of doing it,*is admissible evidence, for the purpose of showing its true character. Star-kie, speaking of the same subject, says, *“*to this head, also, the admissibility by tenants has sometimes been referred, and it seems that such declarations are clearly referable to this principle, in all cases where the *nature and quality of an act of ownership or dominion, or of the possession,*is questioned, and requires explanation, or when the *nature and quality of the possession,*are questioned, and the cotemporary declaration the party doing the act, or of the party in possession, serves to elucidate and explain the nature and quality of such act or possession.”

“ There are *other*declarations,” says professor Greenleaf, “ which are admitted as original evidence, being distinguished from hearsay by their connexion with the principle fact under investigation. — The principal points of attention are whether the circumstances and declarations offered in proof were co-temporaneous with the main fact under consideration, and whether they were so connected with it as to illustrate its character.” After giving the instance of the cry of the mob accompanying Lord George Gordon (who was tried for treason) as forming a part of the *res gestee,*he says — “ So also where a person enters into land, in order to take advantage of a forfeiture, to foreclose a mortgage, to defeat a disseisin, or the like, or changes his actual'residence or domicil, or is upon a journey, or leavers his home, or returns thither, or remains *14abroad, or secrets himself, or in fine *does any other act*mate-*t*rial to be understood, his declarations made at the time of the transaction and expressive of its character, motive or object, are regarded as verbal acts indicating a present purpose and intention,” and are therefore admitted in proof, like any other material facts.

The declaration accompanying the act constitute its character, and to exclude them would be permitting presumptions to prevail over facts, and would be substituting the least satisfactory for the most conclusive proof — conjecture for certainty. To reject them as incompetent would introduce all the evil consequences that are avoided by excluding a garbled statement. The rights of parents would be put in the most imminent peril if any other rule were adopted: the loan of a slave or other personal property to a child for a month, a week, or for a day, might have the effect of transferring the title, by raising the presumption of a gift, if the declarations at the time of the delivery were inadmissible, as they are often the only evidence of the intention of the parent, and the reservation of his rights. The danger apprehended from such evidence operating asa surprise or fraud upon the child, or his creditors, or purchasers from him, is imaginary; the question of fraud would not depend merely upon the declarations, but upon the proofs of what were the motives and circumstances of the parties, and especially whether the transaction was *bona fide*or colorable. To exclude such evidence would amount to passing an Act prohibiting parol loans, unless the child was present, of which the injurious effects cannot be adequately estimated.

The effect of such a rule would be, not only to destroy in many instances the confidence and kindness that subsist between parent and child, but would convert their dealings into the most formal and mercenary transactions of life; the parent who was not able to give would be reluctant to lend, when he knew he ran the risk of losing the property, and selfish considerations of his own interest would soon chill the current of kindness towards the child. The law, as far as possible, should aid the affections, and encourage honesty and fair dealing; but abolish this rule, and children will have-another inducement to ingratitude, and their cormorant creditors, who have, during their nonage, seduced them into dissipation, and swindled them into debt, will be seen pouncing down upon the property the parent has lent to alleviate the wants or to administer to the necessities of his child.— Suppose a common case, a daughter marries a worthless husband involved in debt, she is taken sick and has no one to attend to her, shall the servant that her father sends to wait upon her during her illness, be levied upon by the executions against her insolvent husband, to whom it would be the height *15of folly and madness to make a gift, and which every reasonable mind knows the father-in-law never intended *1*Yet, unless the insolvent son-in-law *he present*when the servant is sent, although a dozen witnesses testify to the fact of the father’s declaring that it was a loan, the marital rights attach, and the creditors, often the guilty abettors of his vices, receive the perverted benefit of a parent’s affection.

As to the second branch of the case, it depends upon evidence, and my opinion has undergone no change.

Whether the insinuations made against Kennedy be true or not, the defendants declined to make an attack upon his general character; and whatever may have been *his motives*in soiling the negroes to the plaintiff, she cannot be made responsible for them, unless she knew his intention was fraudulent, and co-operated to carry it into effect. The indisputable fact that she paid him $400, which he applied in extinguishing executions in the sheriff’s office against him, rebuts the presumption that the sale was merely a colorable transaction.

The plaintiff’s son, who is dead, drew the bill of sale of the negroes — she *swore to*her bill for injunction — and Kennedy testified that his sale of the negroes to her was *bona*fide, and the corroborating circumstance of his payment of the $400 in the sheriff’s office at the time, is evidence enough to neutralize a mere presumption, for it cannot be contended that there is any thing in the transaction that makes it a fraud *per*se, and I think it is carrying the doctrine of presuming fraud entirely too far, to come to the conclusion that all this evidence is false, and the sale fraudulent.

Notwithstanding what was said about the plaintiff’s indebtedness, the proof was sufficient to show her adequacy of means to raise the money to pay for the negroes, and Kennedy’s unsatisfactory account of his closing the balance of her account on his books, ought not to impair her title as a *bona fide*purchaser, unless the amount had been so great as to warrant the conclusion that that settlement was a part of this transaction and contaminated it with fraud. Her payment of $400, which has been applied to his debts, shews a *valuable*if not *an adequate*consideration; and if the most stringent construction be put on the transaction, she ought at least to be subrogated to the rights of those creditors whose debts she has extinguished. But in the material point the defendants'failed in their proof *to bring home the scienter of fraud to the*plaintiff; without strong evidence to sustain this point, her purchase ought to be supported.

*Decree modified.*