#### Sarah S. Snowden, *per prochein amy,*Benjamin F. Scott *v.*Sarah Pope, administratrix *de bonis non*of William J. Snowden, and George J. Logan.

According to the rule laid down in the case of *Sims*v. *Sanders,*Harp. R. 374, it would seem that where the plaintiff’s evidence *conclusively*establishes a title by *gift*no *after declarations*of the donor, can be offered in evidence by the other party to qualify or impeach the title. By this rule the competency of the *after*declarations Of the donor, is made to depend upon the *degree*of *clearness*and weight of the evidence in favor *oí*the gift. The doctrine laid down in that case, questioned, whether as applied in a court of law or a court of equity, and the competency of such declarations said to depend not on the *weight*of the plaintiff’s evidence, as more or less conclusive, in favor of the gift, but upon their *relevancy*to the *issue*before the court.

Where the party seeking to establish a gift of slaves, introduced, and among other proofs, relied upon the admissions of the donor, at and about the time of the supposed gift, that he *had given*the property claimed, the court rejected the *after*declarations of the donor in opposition to, or denial of the gift, as *irrelevant.*

Where a party came into the possession of certain slaves belonging to an estate of which his wife was one of the distributees, and her infant child, by a former husband, a co-distributee, the court regarded him as holding for the benefit of himself and the co-distributee, and held that though his possession might be considered adverse to the right of the administrator of the estate, and bar him of his action under the statute of limitations, it could not impair the right of the co-distributee to claim a partition of the estate and an *account*of the hire and income of the property while in his possession.

Where the wife, before marriage, was a joint tenant of slaves which went into the possession of her co-tenant in her lifetime. Held, that this was such a possession by her as that the *marital*rights of her husband would attach. (S. P. Burgess v. Heape, 1 Hill Ch. 404.) '

In such a case therefore, in a suit for partition and account by a co-distri-butee with the wife, brought against the husband after the death of the wife, an administrator of the wife is not a necessary party to the suit.

*Before JOHNSTON,*Chancellor, *at Beaufort, Jan. Term,*1838.

This- case came up on an appeal from the decree of the chancellor, on the part of the defendant. Briefs of the bill and answers, *175and statements of the evidence, with the necessary documents are -given, to which the circuit decree is annexed as necessary to a full report of the case:

“ The bill states that complainant is of the age of twenty years and three months, and resides on Hilton Head,' in -the district of Beaufort.

That her father, James David Snowden, of Charleston, died intestate on the day of . , 1819; and • that at the time of his death he was possessed of a considerable personal estate, and amongst other things, of eight negro slaves, who have since considerably increased, a part of whom are named Kate, Ben, Jack, Cyrus, Fanny, Catharine and her child-, Betsy and her three children, and *Nelly*and her three children.

That at the time of the death of the said James D. Snowden, his next of kin were Sarah Snowden, his widow, (who hath since intermarried with George J. Logan,) and complainant, (then an infant of tender years,) his only childand that after the death of the said intestate, his property, including the said slaves, *remained*in possession of his widow, who returned, taking complainant with her, to the residence of her father, the late William Pope, Sen., of Hilton Head, in the district of Beaufort, parish of St. Luke.

That some time in the year 1820, complainant’s mother intermarried with George J. Logan, Esq., of St. Luke’s parish, in the district and State aforesaid ; and that the said negroes, together with the other property which had belonged to the said James D. Snowden, deceased, went into the possession of the said George J. Logan, with whom it has remained since that time : and that complainant being very young, and no person being interested to have an account and settlement of the estate of the said Jas. D. Snow-den, the same has never been administered or divided.

The letters of administration of the estate and effects of the said James D. Snowden, deceased, have been recently granted to Mrs. Sarah Pope, of St. Luke’s parish, in the State aforesaid; and complainant has applied to her for an account of the said estate, and also to the said George J. Logan for a partition of the said estate, and an account of the hire of the negroes since they have been in his possession;' and complainant had well hoped, &c.

*176But the said Sarah Pope alleges, that the whole estate of the said James D. Snowden, is in the hands of the said George J. Logan ; and the said George J. Logan expressly refuses to comply, sometimes alleging, that he never received any part of the estate of the said James D. Snowden, deceased; and at other times pretending that the claim of complainant is stale. Whereas complainant charges, that the negroes, and other property of her said father, remained with her said mother after his death, and on her intermarriage with the said George J. Logan, went into his possession : and that the minority of the complainant for a long time rendered her ignorant of her rights, and has prevented her from prosecuting them; and complainant respectfully submits, that her rights will receive the peculiar protection of this court, and that they will not be prejudiced by the delay.

All which actings and doings are contrary to equity and good conscience ; and so forth. Wherefore bill prays that the said Sarah Pope, and the said George J. Logan, may answer the premises ; that an account may be taken of the estate of the said James D. Snowden, and complainant’s portion thereof allotted to her; that George J. Logan may account for the *hire of the*negroes, and the use of the other property, since the same came into his possession ; and that complainant may have further relief, &c.”

*Answer of Sarah*Pope, *Administratrix of James D. Snowden, deceased.*

*“*Admits that James D. Snowden, the father of complainant, intermarried with the daughter of this defendant in the month of February, 1816 ; that the said James D. Snowden then resided in Charleston, and was a partner in the mercantile firm of William E. Snowden & Co.; and that the marriage of complainant’s parents took place at May River, in Beaufort district, the residence of this defendant, and her husband Wm. Pope, Sen.

That shortly after their marriage, the said James D. Snowden and his wife returned to Charleston, and so soon as they had taken a house, (which was directly,) or soon afterwards, William Pope, Sen., the father of Mrs. Snowden, sent down to them their household furniture, and the following negroes, namely, Ben, Jack, Cy*177rus, Betsey, Fanny, Kate, Nelly and her child, being in all eight in number : that this defendant regarded it at the time, and has always since regarded it, as a gift by her husband to the newly married couple on commencing house-keeping ; and that the ne-groes and the furniture remained in the possession and use of Mr. and Mrs. Snowden, from that time until his death, which took place at the close of the year 1818: and that at the time of Mr. Snowden’s death, he, with his wife, were on a visit to her parents, on May River, leaving the negroes at work in Charleston, and that his widow and child continued on May River after his death ; that some time afterwards, Capt. William Pope came to Charleston, and no person having at that time administered on the estate of James D. Snowden, he brought back with him the negroes and furniture, which had been given to Mr. Snowden, and they remained at his place until the intermarriage of Mrs. Snowden with Maj. Logan.

Further says, that in March, 1820, her daughter, Mrs. Snow-den, intermarried with George J. Logan; and that they resided about six miles from the residence of Captain Pope, and the complainant was occasionally with them, but most generally at her grandfather’s: that Captain Pope departed this life in 1823, Mrs. Logan having died in August, 1822, leaving two children by her husband, George J. Logan.

Further answering, defendant says, that the complainant is still. under the age of twenty-one years ; and that this defendant has recently administered on the estate of the said James D. Snowden, deceased.

Is willing to submit to any decree which this honorable court may make in the premises ; and prays to be dismissed with costs.”

*Answer of George J. Logan.*

“ Admits that complainant’s father, James D. Snowden, intermarried with Sarah, the daughter of Capt. William Pope, Sen., of St. Luke’s parish, about the time stated, and shortly after died intestate, leaving his wife, and the complainant, his only child, surviving him; that on the ' •. day of February, 1820, this defen*178dant intermarried with the widow of the said James D. Snowden, and she is since dead.

This defendant has heard, and supposes it to be true, that Mrs. Sarah Pope has taken out letters of administration of the estate of the said James D. Snowden, with a view to enable complainant to bring suit against this defendant; a former suit against this defendant by complainant having failed because the administrator of James D. Snowden was not a party thereto: but this defendant insists, that complainant is mistaken in supposing, that this defendant now has, or ever had possession of any property, of any kind, to which she now has, or ever had, a shadow of right.

This defendant believes, and expects to prove, that upon the marriage of complainant’s mother with her father, some of the ne-groes named in complainant’s bill were permitted by Capt. William Pope, to whom they belonged, to go with the said James D. Snowden and wife, to their place of residence in Charleston, and there remained until the death of the said James D. Snowden, when the said William Pope, Sen., repossessed himself of them, removed them to his plantation in St. Luke’s parish, and continued in possession until 'the March, 1820: that they were in possession of James D.' Snowden during the time aforesaid as a loan, and not as a gift, this defendant is prepared to prove by the most ample and conclusive evidence.

. Further states, that the Rev. Charles Blair Snowden, of St. Stephen’s parish, Charleston district, took out letters of administration of the estate of the said James D. Snowden, on the 26th February, 1819, and possessed himself of all the assets of his intestate,at the. time of his decease ; but never made any partition or distribution of any part thereof, between his widow, and complainant, as complainant alleges ; and this defendant believes, because as this defendant has been informed, the same was entirely insufficient for the payment of the just debts of the intestate, towards which they were 'applied in a due course of administration. At the time of his administration, however, the said Capt. William Pope, Sen. was in possession of the negroes now claimed by the complainant, with the knowledge of the said administrator; and *179on the day of March, 1820, being only the day after the marriage of this defendant with the widow of the said James D. Snowdén, the said Capt. William Pope, in the presence of, and with the approbation of the defendant, Mrs. Sarah Pope, gave the said negroes, and others, to this defendant, absolutely, and without any reservation or condition whatever: the said Charles Blair Snowden, the administrator, having only a short time previous thereto disclaimed any right to the said negroes, as a part of his intestate’s estate ; since which time until the present, a period of seventeen years, this defendant has been in the actual adverse possession.

Further states, that the said William Pope, Sen. always spoke of the said negroes as a loan to the said James D. Snowden, not only in the life time, and in the presence of the said James D. Snowden, but after his death; and acting upon the supposition that the gift of the said negroes to this defendant, at the time above mentioned, was a good and valid gift, against which no other claim could be advanced, the said William. Pope refused to bequeath any part of his large estate to the children of this defendant by his daughter, who had been dead some time before the making of his last will, giving as a reason, that they had already been sufficiently provided for by the gift of the aforesaid negroes to this defendant, and that the estate of James D. Snowden, which was then supposed to be ample, would go exclusively to the complainant, under a certain deed executed by her mother, previously to her marriage with this defendant, and with his assent. That the said James D. Snowden, his widow, Mrs. Sarah Snowden, afterwards this defendant’s wife, Mrs. Sarah Pope, the defendant, and Chas. Blair Snowden, the administrator, always regarded the possession by the said James D. Snowden of the aforesaid negroes, merely as a temporary loan, which terminated with his life, this defendant believes he can abundantly prove by the conduct and admissions of each of the said persons.

Further states, that complainant not only admits that there never has been, at any time, a partition of the estate of the said James D. Snowden, or any part of it, but now seeks to have a partition of the aforesaid negroes, as the estate of the said James D. Snow-*180den; and it is not pretended that the said Charles Blair Snowden ever parted with the legal estate in the said negroes to the complainant, or her mother, or ever admitted that the aforesaid ne-groes constituted the remainder of the estate of his said intestate, after the payment of debts, to which complainant and her mother, as distributees of James D. Snowden, were entitled.

Defendant submits, that if the said negroes ever did belong to the said James D. Snowden, which this defendant in no sort admits, the possession of this defendant since March, 1820, has been adverse to the right of the said James D. Snowden’s administrator, in whom alone the right of action was; and that this defendant has acquired a good and perfect legal title to the said ne-groes, and their increase and hire, by the operation of the statute of limitations, against the administrator of the said James D. Snowden, and of course against complainant; and he prays that he may be allowed the full benefit of this defence, as if he had pleaded the same specially.

•Denies combination, and prays to be dismissed with costs.”

*Plaintiff’s Evidence.*

Mrs. Sarah Pope' — Is the plaintiff’s grandmother. The plaintiff will not be of age until February next. Mrs. Snowden was married in 1816, at her father’s, at May River. Snowden then lived in Charleston: whither the young couple proceeded in about two weeks. The negroes and furniture were sent as a gift.— Heard Mr. Pope call them a gift at the time, and repeatedly, both before and afterwards. He never spoke of them otherwise.

The negroes sent were Ben, Jack, Cyrus, Fanny, Kate, Catha-rine, Nelly, and her two children. Two others were sent, who have since died. Witness was anxious to have the property settled ; Mr. Pope was decidedly opposed to it. Betsey, a negro, also sent, was given to Mrs. Snowden in her childhood. There was another, Kate, lent, (not given) about ten months afterwards. She was returned. Mr. Snowden died in August, 1818, on a visit at May River. Mrs. Snowden, who was with him, returned to Charleston. The February following, her father went and brought her to his residence. The negroes and furniture were also brought *181back. She remained with her father until her second marriage;' during which time the negroes, except two, were about her. On the second .marriage, the negroes in question here, with another, set, were brought out and put in a line, with a space between the parcels, and in presence of witness, her sister, (now dead,) and James Pope, Mr. Pope, pointing to the parcels respectively, said to Major Logan — “ This set I gave to Mr. Snowden that I now give to you.” There were twenty-two in all. Major Logan took them home, a distance of six or seven miles. The furniture was also sent; including a piano forte, which Mr. Snowden had given his wife.

A short time before Snowden’s death, Mr. Pope said he intended to make him another gift, which, added to the previous gift, would make him up twenty-five negroes.

Cross examined. — There were no other persons present at the delivery to Logan, but those mentioned by witness, except her daughter, now dead. Mr. Pope had possession of the negroes during Mrs. Snowden’s widowhood; eighteen or nineteen months. Mrs. Snowden got a part of the profits of those who worked out. At the drawing of his will, Mr. Pope declared his reason for not providing for Mrs. Logan’s children, was, the ample provision he had already made for her. The object of the deed executed before Mrs. Snowden’s marriage to Logan, was to secure Snowden’s estate to his daughter.

The delivery to Major Logan was a few days after his marriage. Plaintiff has lived with witness since 1822, when her mother died.

William Pope, Jr. — Is plaintiff’s uncle. Remembers the sending of the negroes and furniture. Mr. Pope sent them to his daughter as a gift. Such were his declarations at the time. After Mr. Snowden’s death, Mr. Pope brought his daughter back; and the negroes came back by boat. He afterwards spoke of the negroes as those he had given to Snowden. He had intended to give more, but witness, who was much in his confidence, dissuaded him. He always gave out and out.

Cross examined. — After the negroes came back, part were in Mr. Pope’s field, part about his house in the same capacity as his *182own. The slave Betsey had been called Mrs Snowden’s from her infancy, in the family.

Benjamin F. Scott. — Mr. Pope, Sen. was witness’ brother-in-law. Has heard him often, after *the negroes were sent,*spealcfof them as a gift; never as a loan. He also spoke of his intention to make further gifts. The negroes given were house servants, and their husbands. The negroes and furniture, including the piano, went into Logan’s possession. Witness attested William Pope’s (the younger) execution of a deed made by Mrs. Snowden, before her second marriage.

Cross-examined. — Witness would have bought from Snowden. Logan planted with the negroes ; and hired some of them out.

James Pope. — Is plaintiff’s uncle. The negroes were sent by Mr. Pope to Charleston, by water. Witness was then a lad of fourteen or sixteen, and not much at home. Was present when the delivery to Logan took place. • The negroes were drawn up and delivered, but witness does not remember the precise expressions of Mr. Pope.

Cross-examined. — Hoes not recollect whether the negroes were separated into two parcels. Major Logan has been in possession ever since; and has, particularly since 1825, claimed them as his own.

Dr. John A. P. Scott. — Knew when the negroes were sent to Charleston. Saw them in Snowden’s possession there; and often heard Mr. Pope speak of them as a gift, never otherwise.

Cross-examined. — After Logan’s marriage he called witness to some of these negroes. He made out his bill against Logan. — ■ Has heard Mr. Pope distinctly say, he gave the negroes to Snow-den.

The letters of administration granted to Mrs. Pope on Snow-den’s estate, were here given in evidence. Also, a deed, dated February 15th, 1820, from Mrs. Snowden, before her second marriage, conveying her undivided interest in Snowden’s estate to William Pope, Jr. and the Rev. Charles Blair Snowden, in trust, for the plaintiff. This deed was given in evidence at the request of the defendant.

Also the last will of William Pope, Sen.

Plaintiff closed here.

*183*Evidence for Defendant Logan.*

John Norton — Visited Charleston twice in 1816, in company with Mr. Pope.

(Declarations made by Mr. Pope in Charleston, and on the way, in contradiction to the gift, were offered to be proved by this witness. They were objected to; but the court received them, subject to the objection; and the witness proceeded.)

On the way, Mr. Pope told witness he had little confidence in Mr. Snowden’s avocation; which was trade. That he had loaned the negroes to.him; and that even the furniture in the house was his (Pope’s). Witness understood him distinctly.

While in Charleston, Snowden was relating to Mr. Pope the misconduct of Ben, one of the slaves: upon which Mr. Pope replied, that he would take him home and lend another in his place. Mr. Snowden thereupon said, “ let me try him a little furtherto which Mr. Pope consented. Witness drew Mr. Pope’s will.— The testator told him he had promised Maj. Logan, when he was married, to give him twenty-five negroes: that he had given him twenty-two, and loaned him money; and would have given him three more negroes, if his daughter had Jived. As she was dead, he must be satisfied with what he had given him. He died but a few days afterwards.

The negroes were then in Logan’s possession. In the conversation as to the will, Mr. Pope said he had loaned the negroes to Snowden and had got them back and given them to Maj. Logan. He said also, that Petigru had drawn the trust deed from Mrs. Snowden, in favor of her child, by his advice. Witness would have taken Maj. Logan’s title for the negroes.

Cross-examined. — Mr. Pope said, on the Way to Charleston, that he intended to sell a house in Savannah and give the proceeds to Snowden. He said he had given him nothing, but only loaned him the negroes and furniture. Witness was born in 1777, and was in 1816, thirty-nine years old. Is now sixty-one.

Examined again by defendant Logan. Mrs. Pope was present at the directions respecting the will. No one else was present. Witness was requested to keep the matter secret until his death. .It never transpired, from him, until after Mr. Pope was dead.

*184George Logan — Is son of Maj. Logan. Was present when a group of negroes was drawn up, and Mr. Pope said, “ Maj. Logan there are the negroes I give my daughter;” or words to that effect. Mr. Pope’s family was present. Maj. Logan always worked the negroes afterwards.

Cross-examined. Witness is now in his 29th year. Was then 10 or 11. Thinks he has a distinct recollection of what took place; but is of opinion his mind was not sufficiently matured to have understood the effect of giving in separate parcels, as represented by Mrs. Pope.

A certificate from the ordinary of Charleston, showing the return made by C. B. Snowden, as administrator of Snowden’s estate.

Plaintiff in reply. Wm. Pope, jr. again. — Thinks C. B. Snow-den died in 1825.

*Copy of Deed referred to from Mrs. Sarah Snowden in favor of complainant*

Sotith-CaROLina. :

This indenture of two parts, made and executed this 15th day of February, in the year of our Lord 1820, between Sarah Snow-den, of May river, in the district of Beaufort, widow, of the one part; and William Pope, jr. of Hilton Head, in the district aforesaid, planter, and Charles B. Snowden of the city of Charleston, preacher, of the second part. Whereas, James D. Snowden, the late husband of the said Sarah Snowden, of the city of Charleston, merchant, died intestate, leaving considerable estate in moneys, specialties, outstanding debts and merchandize, belonging to the late firm of William E. Snowden & Co., and leaving issue an infant daughter, that is to say, Sarah S. Snowden, between whom and the said Sarah Snowden, the said estate remains to be distributed, according to the provisions of the act for distribution of intestate’s estates: and whereas, the said Sarah Snowden is desirous of transferring and assigning to the use of the said Sarah S. Snow-den, all and singular, her right and title in and to the estate of her late husband, both real and personal. Now this indenture witnes-seth, that the said Sarah Snowden, for and in consideration of the *185love and affection which she hath and beareth to her said daughter, and for and in consideration of one dollar to her, the said Sarah Snowden, by the said William Pope and Charles B. Snowden, in hand well and truly paid, at or before the signing and delivery of these presents, (the receipt whereof is hereby acknowledged,) and also for divers other good considerations, her thereunto moving: hath given, granted, transferred and assigned, and by these presents doth freely and absolutely give, grant, assign and transfer, unto the said William Pope and Charles B. Snowden, all and singular, her right, title and interest of, in and to the estate, real and personal, whatsoever and wheresoever, of the said James D. Snow-den, deceased: Upon this special trust and proviso, nevertheless, that they, the said William Pope and Charles B. Snowden, shall get in and receive all and whatsoever the. undivided interest and share of her, the said Sarah Snowden, in the estate of the said James D. Snowden, deceased, and shall lay out and apply the same, as to them, in their discretion shall seem most fitting and expedient, for the education, maintenance and advancement of the said Sarah S. Snowden, as long as she shall continue single and under the age of 21 years: and afterwards, to assign, transfer and deliver the same, and all interest accruing thereon, to the said Sarah S. Snowden, at the age of 21 years, or upon her day of marriage, if she should be married under the age of 21 years; and in case the said Sarah S. Snowden should depart this life unmarried, and without attaining the age of 21 yeárs, then to assign, transfer and deliver the same to the sole separate use of her, the said Sarah Snowden, with power to dispose thereof by any writing in nature of her last will and testament, which she, notwithstanding'her coverture, may limit and appoint-; And she, the said Sarah Snowden, doth covenant and agree, to ■ and with the said William Pope, jr. and Charles B. Snowden, that she will, from time to time, and at all times hereafter, at the reasonable request of them, the said William Pope, jr. and Charles B. Snowden, do, execute and perform, all such acts and deeds for the better assuring of the premises, as by the said William Pope, jr. and Charles B. Snowden, or the survivor of them, or by his or their counsel, *186learned in the law, shall be reasonably advised, devised, or required.

In witness whereof, the parties to these presents have hereunto set their hands and seals, the day and year first above written.

Sabah Snowden, [l. s.]

William Pope, jr. [l. s.]

C. B. Snowden, [l. s.]

Sealed and delivered in the presence of (the word “Estate,” in the 12th line of the 1st page, first interlined,)

*John A. P. Scott,*

*Benj. F. Scott,*

Witness to C. B. Snowden, *James G. Stoll*

The clause of William Pope, senr.’s. will, referred to in the evidence, is as follows:

“ As I have given off to my deceased daughter, the late Mrs. Sarah Logan, in her life time, a portion or part of my estate, about equal to that which my younger daughters will inherit, I have not thought proper to bequeath any thing to my grand children, her three daughters.”

The Rev. Charles Blair Snowden’s (of St. Stephens’) estate, is not represented in this office. The said Rev. C. B. Snowden administered on the estate of James David Snowden, late of Charleston, on the 26th February, .1819, and returned an inventory as follows:

May 15,1819.

Amount of furniture, &c., - *$1,024 00*

Do. stock in trade,. 15,862 30

Do. one-third of a vessel, *(brig*Catharine.) - 2,000 00

Do. of negro man Jim, or James, - - 700 00

$19,586 30

Letters of administration de bonis non, on the estate of J. D. Snowden, were granted to Mrs. Sarah Pope, of St. Luke’s Parish, *187widow, on the 29th day of March 1837. Estate declared not to exceed in value $15,000.

No inventory rendered up to this time.

Thomas Lehke, *Ordinary C. D.*

July 6th, 1837.

DECREE.

Mrs. Pope proves that her husband gave the slave Betsey to his daughter, long before her marriage to Mr. Snowden; and after her marriage, sent her with the other slaves and the furniture, to Snowden’s residence in Charleston: declaring at the time, as he also did repeatedly both before and afterwards, that they were a gift. Two circumstances serve to impress this on her memory: the first of which is, that the absolute gift was made in direct opposition to her own anxious request that the property should be settled on her daughter; the other is, the contrast between the *gift*of these slaves and the *loan*of another, sent at another time and afterwards returned.

Mr. William Pope, jr. testifies to the gift of Betsey in the childhood of Mrs. Snowden. He also says, that at the time Mr. Pope sent the slaves to Mr. Snowden’s, he declared them to be a gift to his daughter: and that after he had brought Mrs. Snowden home again, with the slaves, in consequence of Mr. Snowden’s death, he spoke of the negroes as those he had given to Snowden.

Mr. Scott swears, that after the slaves were sent, he often heard Mr. Pope, senr. speak of them as a gift: never as a loan.

Dr. Scott knew when the slaves were sent to Snowden in Charleston, and saw them there in his possession, and has heard Mr. Pope, senr. speak of them as Mr. Snowden’s, by a gift: never otherwise. He has heard Mr. Pope distinctly say, he gave them to Snowden.

It appears that the slaves were constantly in Snowden’s possession from the time they were sent, until his death: a period of two years or more: and were not removed from his residence until after his decease; and then before a representative of his estate was appointed.

It is not disputed that this evidence, standing alone, is sufficient *188to establish most satisfactorily, a title in the plaintiff’s father. But the defendant, Maj. Logan, has introduced evidence, intended to show that no gift was in fact made to Mr. Snowden.

This evidence, (which was received subject to objections,) consists partly, of a conversation between Mr. Pope and Mr. Snow-den, after the slaves were sent by the former and received by the latter. This testimony, so far, is undoubtedly competent, and I shall hereafter briefly state its effect upon the case.

The evidence propounded and objected to, consists further of declarations made by Mr. Pope, out of Mr. Snowden’s presence, after the slaves were received by the latter.

For the admissibility of this evidence, the case of Sims v. Sanders, (Harper’s Rep. 374,) is relied on. The argument on the other side is, that the plaintiff’s evidence conclusively establishes a title in Mr. Snowden, by gift; and that no after declaration of *the*donor can be received to divest him of it.

There is no doubt that gifts of chattels, whether parol or written, are always executed contracts, in which the title with the possession, (or the means of coming at the possession,) is completely transferred. If, therefore, the object of such evidence as is offered here, was to undo the contract, the evidence would be clearly incompetent. But the evidence is not offered to control a gift already perfected, but to prove that in fact no gift was made. The object is not to divest a right, but to meet and overthrow the evidence given on the other side, by showing that no such right ever vested.

Having endeavored to point out the true object of the evidence, I will suggest a few acknowledged principles, which I desire may be carried with us when we enter on the consideration of its competency.

The definition of the gift is pure matter of law. Whether the acts done, do or do not, fall within the definition, is purely matter of evidence. So again with respect to the competency and the weight or credibility of evidence : the one is a mere matter of law exclusively determinable by the court; the other is entirely matter of fact, whose determination appertains to a distinct forum.

The objection raised to the evidence propounded, is that the *189plaintiff’s proof is clear and conclusive, of acts amounting in law to a gift: and that where the proof is clear, after declarations counter to it shall not be received; though they may be competent where the proof is loose and inconclusive. So it is observed in Sims v. Sanders, “ if the gift-had been proved perfectly and conclusively, the after declarations should have been rejected.” The position contended for here, and apparently assented to in that case, seems to be this, that the competency of the ’ donor’s after declarations, depends on the fullness and distinctness of the proof of a previous gift. This position is, in my humble judgment, more than questionable.

I conceive that the competency of testimony propounded, depends entirely upon its relevancy to the issue; and that the strength or weakness, distinctness or indistinctness, of the opposing testimony, forms no criterion at all. That if on the one hand the witnesses should swear to an actual and formal gift, no counter evidence which is at all applicable to the issue, (gift or no gift,) can be excluded: And if, on the contrary, the proof of the gift be the flimsiest imaginable, that circumstance does not render competent, or let in any evidence, however strong, which does not bear on the issue. Can the weakness of my opponent’s testimony make mine relevant if it was not so before ? Or can the strength of his destroy the relevancy of mine ?

The legal incorrectness of the position which I am controverting, results, I think, inevitably from' the well settled distinction which I have already stated, between matters of law and matters of evidence; and from the structure of our tribunals, in which the law and the facts are separately considered and determined.

Thus, in a law court for instance, where .the law is exclusively for the judge and the facts for the jury: After thé plaintiff has proved the most solemnly formal gift by^as many eye witnesses as you please, let us suppose the defendant propounds the donor’s after denials of the gift. Shall the court reject the evidence, not on account of its irrelevancy, but solely because “ a prior gift has been proved 1” How is the court to know, until it hears the verdict of the júry, what has or has not been proved ? Whether the evidence of the gift already received is credible, or. will be credi*190ted *1*Or whether, if the counter evidence which it is asked to reject, \vere sent to the jury along with it, it would not preponderate ?

On the other hand, suppose the proof of the gift to have been a patch-work of the flimsiest circumstances, shall the court receive the after denials of the donor, not because they are relevant to the issue, but solely on the ground “ that a prior gift has not been conclusively proved f’ What is meant by conclusively ? I suppose that what the jury believes is conclusive. How shall the court, without the power of prophecy, ascertain what the rule contended for, demands as a prerequisite, whereby to determine the competency of the evidence propounded ?

Now, although in this court the same person decides both law and fact, the functions are as distinct as they are at law, where the forums are separated and the judgment given to different persons. If the chancellor will not perpetrate a violation of principle, (which sooner or later always results in confusion and injustice,) he must keep his provinces distinct, and proceed in them in an orderly method. He must decide on the competency of testimony, apart from considerations of the weight of any other testimony ah’eady received. He is as much bound to receive all competent, and reject all incompetent testimony, as if a jury, and not himself, were afterwards to weigh the evidence. Indeed it is absurd to talk about the weight of evidence already received, until all the rest is also received and compared with it. It would be positively unjust and unfair to draw conclusions from any *thing*less than the whole. Besides, as this tribunal is subject to appellate supervision, what the chancellor might, on account of his personal opinion, exclude from himself, would be also excluded *from*the court above ; thereby virtually denying the benefit of appeal.

The position contended for, cannot be applied to a court of law, because it translates the judge from the bench to the jury-box; it exonerates him from the decision of the competency of evidence, which is his duty, and assigns him the function of weighing evidence, which is neither his duty nor his privilege.

Being satisfied that the competency of evidence depends altogether on its relevancy to the issue, my next position is, that the *191relevancy of a defendant’s evidence is tested by considering whether it answers or avoids that of the plaintiff. If the plaintiff gives no evidence, there is no room nor necessity for the defendant to offer proof at all. If the plaintiff does introduce proof, it is the danger of its being believed, and that alone, which drives the defendant to counter testimony. His evidence must, therefore, go to disprove, or qualify what has been sworn to on the other side; or to show that although true, the facts proved are superseded, or avoided by other facts.

The proof which Maj. Logan attempts to meet, is of two kinds: First, that Mr. Pope sent the slaves to Snowden, with a declaration that they were a gift. Secondly, his subsequent declarations that he had given them to him.

As to the first: the donor’s subsequent denials of the gift no more disprove the gift, than the disavowal of his hand and seal would have been disproof of his bond: nor is the evidence a whit more competent in the one case than in the other. The denial is not an operative act in itself. It lays no other foundation for disbelieving the witness who proves the act of giving, than the mere veracity of the declarant. It is the mere statement of a fact, without the sanction of an oath.

Then as to Mr. Pope’s after admissions, that he had given. It is true that these admissions, like all other admissions, are not conclusive of the fact admitted. They only form the ground of a reasonable inference that the fact exists. But surely the truth of admissions made at one time, is not impeached by assertions made at another, that they are untrue. ■ Can you apply such evidence to a gift, any more than to a sale, or to either, more than to a debt ?

I shall, upon the whole reject all the after declarations of Mr. Pope, in opposition to the gift, except those made in the presence of Mr. Snowden. I reject them not on the ground that a gift is made out by the previous proof, but nakedly because they are irrelevant. In Sims v. Sanders, and in the present case, it happens that both parties claim under a common donor: a circumstance which lends an air of impartiality to his after declarations, and obscures the irregularity of admitting them. But really the junior donee stands to the senior as the donor did before making *192the second gift. The error of Sims v. Sanders will appear when a donor shall, by his own declarations, recover back what he had given. The principle will still be the same, though the enormity may be greater, if a vendor, shall, by virtue of his denials of the sale, be permitted to hold the price and recover back the property.

But if I had allowed the evidence which I have excluded, I should, nevertheless, have pronounced in favor of the gift. For admitting that no gift was made in 1816, when Mr. Norton conversed with Mr. Pope, or when the conversation took place between Mr. Pope and Mr. Snowden concerning the fellow Ben, (which is a point I promised to speak to,) how are we to get over Mr. Pope’s admissions after he had brought home his daughter and the slaves? These are entirely reconcilable with every word uttered by Mr. Norton respecting these conversations, by merely supposing that Mr. Pope made a gift afterwards.

With respect to what Mr. Pope is represented to have said to Mr. Norton when the will was drawn, it is clear tome that he was misunderstood by that gentleman.

The will holds a different language. The testator signifies that he is restrained from providing for his daughter’s children by the fact, that he had already given her a full portion. She was then dead, and the implication is, that the children had already received the benefit through their mother. But if all had been given to Major Logan, and nothing to Mr. Snowden, the reason was very good so far as the children of the last marriage were concerned ; but how was Miss Snowden benefitted ?

On the other hand, the distribution which he is supposed to have made of his daughter’s portion in the gift of about one-third to Snowden, and two-thirds to Logan, might reasonably satisfy him that the three grand children would each receive a benefit nearly equal.

I have drawn no distinction among the slaves, nor between the slaves and the furniture. The doubtful part of the testimony related to the body of the slaves. As to Betsey, the gift of her to Mrs. Snowden before her first marriage, is indubitable. Of course Mr. Snowden’s marital rights attached to her: and she formed part of his estate at his death. There is no attempt to controvert *193the gift of the furniture ; but as it was not specially described in the bill, or at the trial, it must be the subject of a special order.

Being of opinion that the property claimed by the plaintiff was given to her father, I am now to inquire whether she is deprived of it by the act of limitations.

Mr. Pope did not hold adversely, either to the administrator, or the distributees, during his daughter’s widowhood. On the contrary, the evidence is abundant that he acknowledged the title of his deceased son-in-law.

The widow set up no exclusive claim. Therefore, if there has been an adverse possession, it must have begun with Maj. Logan.

If Major Logan came to the possession under his wife, she holding as a co-distributee, it will not bear an argument that he cannot bar an infant co-distributee, especially if he had notice of her rights when he took possession.

If, on the other hand, Mr. Pope was in possession, and made a direct gift to him of the property in question, I suppose that he might bar the administrator, and through him the distributees.

This is the ground taken in the answer ; but as the answer is not responsive in this part, but sets up a distinct fact, it is not evidence.

Three witnesses were sworn to this point. I take them all to be above suspicion ; and if their evidence were not perfectly re-concileable, I should feel great embarrassment.

An issue was offered by the court, and declined by both parties, which satisfies me that neither party desires to raise a question of credibility. Certainly none was raised before me. The argument was upon the probability of mistake where there was the least appearance of contrariety. A mutual confidence so entire leaves me at little loss. Mrs. Pope declares that the slaves (for this gift relates entirely to them) were drawn up in a line, with a space separating those now in controversy ■ from another parcel; and Mr. Pope said to Major Logan, “ this set I gave to Snowden — . that set I now give to you.” This was on the second marriage.

Mr. James Pope, then quite young, was present on the same occasion, and remembers the negroes being drawn up. He does *194not recollect, however, whether a space was put between them, nor the precise words used by his father.

Mr. George Logan, then ten or eleven years old, was álso present. A group of negroes was drawn up, and Mr. Pope said, “ Major Logan, there are the negroes I give my daughter,” or words to that effect. He thinks he has a distinct recollection of what took place, but is of opinion he was not, at that time, of a mind sufficiently mature to have understood the effect of giving in separate parcels, as represented by Mrs. Pope.

Now I have not the slightest doubt that each of these witnesses has told the exact truth. It is entirely probable that Mr. Pope used the very words related by Mr. George Logan, or equivalent words. It is very natural he should speak of all the negroes as given to his daughter ; his affection for her, and his intent to benefit her, being the motive to the gift.- It is also as probable that what Mrs. Pope speaks of also took place, and that it was done by way of explaining the expressions remembered by Mr. Logan. It was a mere detail of the other. The only difference among the three witnesses is, that Mrs. Pope remembers particularly, what the other two do not remember. Is it at all surprising that she should have observed attentively, and remembered minutely, that in which she felt a deep interest, and was able to understand ; while two lads should have been comparatively inattentive to, or should not have observed or remembered what, at their time of life, was neither interesting to, nor thoroughly understood by them ?

My conclusion upon the whole, is, that the plaintiff is entitled to a decree.

I shall decree a partition to the plaintiff of two-thirds of the slaves, with hire. As regards the furniture, with the exception of the piano forte, it was not sufficiently described in the proceedings, or evidence to enable me to award a writ for it. If, therefore, the parties do not agree on some other course, the commissioner will inquire and report upon its character and value, to enable’the court hereafter to direct partition or sale, or an account of it. And it is so ordered.

It is also decreed, that a writ do issue for a partition of the *195slaves-set forth.in the pleadings, with the increase, two-thirds in value thereof to be allotted to the plaintiff. The commissioner of this court to insert the names of the commissioners, and that the defendant, George J. Logan, do account to the plaintiff, before the commissioner, for two-thirds of the annual hire of said slaves, since he received the same into his possession, and that he do pay the costs of this suit.”

The defendant appealed from the above decree on the following grounds •: . ■

1. Because the assent of an administrator is essential to vest in distributees a legal title to the distributable residue of his intestate’s estate ; and the bill admits, and proceeds upon the ground, that the estate of James D. Snowden has never been administered or divided : the complainant’s claim is, therefore, only through the administrator, and as he would be barred by the statute of limitations, were he now sueing either at law or in equity, so ought the complainant to be, notwithstanding her minority.

2. Because the legal title in the said negroes until the distribution, or until they were delivered by the administrator to the dis-tributees for partition, was in the administrator alone, and seventeen years adverse possession by the defendant, Logan, is sufficient to give him a good legal, title.

3. Because Mrs. Logan did not hold the negroes in.dispute as a co-distributee, and Logan took possession of them upon his marriage, as an adverse claimant, in opposition to the administrator, and all claiming through him; and it is immaterial to the defence, whether he, knew the negroes to be the property of James D. Snowden, or of any body else.

4. Because, although it has been lately decided that a court of equity has a concurrent jurisdiction with a court of law to try a title to negroes under particular circumstances, it has not been decided that a defence which would be sufficient to bar the action at law, shall be of no avail, should the plaintiff think proper to transfer his suit to a court of equity.

5. Because the evidence sufficiently proved that the negroes had been only loaned to James D. Snowden, and afterwards given to the defendant 4 and the subsequent declarations of the donor to that *196effect, (as they were admitted to prove the gift to Snowden,) ought to have been received and considered by the chancellor.

6. Because the declaration of William Pope, Sen., that he had loaned the negroes to Snowden, and had got them back and given them to Logan, if not sufficient to prove that the negroes were only loaned to Snowden, at least prove the nature of his own and Logan’s possession of the negroes, and that that possession was adverse.

7. Because' the negro Ben was clearly shown to have been loaned to James D. Snowden, by the evidence of the witness, John Norton, and the decree ought to be modified with respect *to*him at least.

8. Because the decree is, in other respects, contrary to law and evidence.

CuniA, per Johnston, Chancellor.

Whether the property embraced in the decree was given by Mr. Pope to the plaintiff’s father, does not appear to admit of much doubt, under the evidence ; and I am instructed by the court to state, that it is satisfied with the determination of the fact in the circuit decree.

The only other material question relates to the statute of limitations. This applies to the slaves alone. The plea of Major Logan is, that “ the possession of this defendant, since March, 1820, has been adverse to the right of the said James D. Snowden’s adm’r, in whom alone the right of action was; and this defendant has acquired a good and perfect title to the said negroes, and their increase and hire by the operation of the statute of limitations against the said administrator of the said James D. Snowden, and of course against the plaintiff.” ■

The argument contained in this plea pervades *the*grounds of appeal also ; and embraces in a few words the substance of all that has been argued before us. It is not deemed necessary to inquire whether Major Logan’s possession was adverse to the administrator, or whether in fact the administrator’s title was barred by it; because the court is clearly of opinion, that if he was barred, it by no means follows; that the plaintiff is barred also. That Mr. Pope delivered the negroes to Major Logan, with the decía-*197ration stated by Mrs. Pope, the court is entirely satisfied. When Mr. Pope delivered them as property which he had given to Mr. Snowden, Major Logan by accepting them, bound himself as strongly as if he had expressly undertaken to hold them in the,, character in which they, were delivered to him. Being the husband of one of the distributees, and holding for the benefit of both, suppose he did set the administrator at defiance and bar him. The bar was effected by virtue of the joint possession of the distribu-tees holding adversely to the administrator. It is not like the case of an entire stranger, who, if he bars the personal representative, destroys the rights of the distributees also. It is not even like the case of one of several distributees, who takes and holds possession professedly for himself alone ; in which case it may well be that both the representative and the co-distributees are barred. But it is the case of one distributee holding for himself and his co-distri-butees against the administrator, and is attended with the same consequences as if all the distributees held an actual possession in common. The administrator may be barred; but if so, his legal title has passed to the distributees, just as if he had assented to their distributory rights, and delivered the property to them. As among themselves the right to partition still exists after the bar of the administrator, as perfectly as if he had voluntarily put them in possesion. It is not perceived how, upon principle, Major Logan can be excused from accounting for hire ; his case being that of an adult distributee in possession. The court, however it may regret the hardship of his being held to this account, cannot exempt him from it without establishing a precedent ruinous to the interest of minors, such as this plaintiff was when she filed her bill. He had it in his power at any time by partition, to have severed the possession, and exempted himself from this, account.

These remarks dispose of the merits of the appeal. A ground has been taken, however, in argument, which was not taken on the circuit, nor embraced in those set down for argument. It is that the administrator of Mrs. Logan was a' necessary party to the partition sought and decreed, Mrs. Logan being entitled, according to the bill, to one-third of the property to be partitioned. But it is the opinion of my brethren,' that if the point was properly *198made now, the case falls within the principle of Burgess v. Heape, 1 Hill Ch. 404, and that Major Logan’s marital rights attached Upon his wife’s share in his hands.

*Be. Treville,*for the motion.

*Rhett,*contra.'

It is ordered, that the appeal be dismissed, and the circuit decree affirmed.

David Johnson and Harper, Chancellors concurred.

Chancellor Dunkin being of counsel gave no opinion.