#### *Thomas L. Fraser and others vs. Horatio*McClenaghan.

A delivery of slaves by a father to his son shortly after the son’s marriage, *held,*on the evidence, to be a loan and not a gift, and consequently that the father might dispose of the slaves by will.

Where a bill is filed for the specific delivery of a negro, or other chattel, and it perishes before the hearing of the cause, so that the specific delivery cannot be decreed, *guare,*is the jurisdiction of the court gone ?

Is not there a distinction between cases, where the chattel perishes after the conversion and before the filing of the bill, and where it perishes after the filing of the bill and before the hearing of the cause ? In the fb st case is not the court without jurisdiction, and in the second may not the defend* ant be ordered to account for the value?

The above questions considered of importance and directed to be reargued.

*Before*Johnson, Ch. *at Marion,*

*February,*1845.

*The Chancellor.*The late John Baxter Fraser, who died in 1820, by his last will, dated in 1819, made the following bequests. “Item, I give and bequeath my negro slaves Young Ben, Diana and child Xury, and her future increase, to my said son Samuel, for and during his natural life, and at his death, to the lawful issue of his body; and if he should die without lawful issue living at the time of his death, then, and' in that case, remainder to the surviving brothers and sisters or brother and sister of the said Samuel, equally to be divided between them, share and share alike,” (fee. “Item, I give to my said son Samuel, my negro slaves Toney and Affey, and their increase, and do expressly subject the said negro slaves Toney and Affey with her increase, to the said limitations with those just given to my said son Samuel, in all respects whatever.”

In 1827 or ’8, Samuel the son, sold the said negroes, Toney and Affey, and Diana and her children, to one Richard Howard, for their full fee simple value, and there is no evidence that he had notice of the limitations of this will, or from whom Samuel Fraser had his title. Samuel Fraser died in the course of the last year, leaving issue, the complainants, his children, all of whom were minors at the time of the sale of the negroes to *80Howard, the oldest not being then more than fourteen years of age. The defendant married the daughter of Howard, who, in 1829, gave the negroes, including the issue of Diana, to the defendant as an advancement to his wife. The bill is brought for the specific delivery of Toney and Aifey, and the issue, children and grand children of Diana, eight in number, named in the pleadings, she herself having died.

The answer raises the question whether the complainants were entitled to take under the limitations of the will, but that was abandoned at the hearing, and the defence was put wholly on the ground that the negroes, Diana and her child Xury, were not the property of the testator, at the time of the execution of the will, and that they had been before given by the testator, to his said son Samuel Fraser.

The evidence on this question may be summed up in a few words, and it is a great relief to the court, that it is derived from witnesses of unquestioned veracity, and that there is no collision between them except as to a point of time dependant on memory, which is not regarded as at all material.

James McPherson, sworn for the defendant, stated that Samuel Fraser, the son, married in 1813, much against the will of the testator, his father, who, on that account, declared he would give him nothing, — in consequence of which the son settled at some distance from him; but that the father at length relented and a reconciliation took place between them. That in the Spring of 1816, (and he states various circumstances which enable him to speak with precision of the time,) he saw the woman Diana, whom he knew to have belonged to the father, at the house of Samuel the son, who retained possession of and used her as his own, from that time to the time of the sale, to’ Howard. The fact of the possession, and the use, is sustained by the evidence of Robert Fraser and W. H. Fraser, two of the testator’s sons, sworn for the complainants; according to their recollection, however, the possession did not commence until 1817. This is the case on the part of the defendant. On the part.of the complainants, a small memorandum book, found amongst the papers of the testator after his death, which upon examination was found to have been appropriated exclusively to the purpose-of keeping accounts of advancements to his children, and his own cash receipts and disbursements, was offered in evidence. In the account with his son Samuel, the first items are for a mare and cash advanced, amounting to $143 19, under the, date day *81of — 181 , and immediately below this is the following entry : “March 15, 1817 : Lent to my son Samuel, a negro girl named Diana, and her child Nury, and her future increase — he having agreed to find, clothe, shoe, and pay their taxes, and all future expenses of her increase, if any.” Then follow other items under date 8th January, 1817, for cash, (fee., advanced, amounting to $196, and the names of two other negroes, Ben and Delia, lent. In the accounts with the testator’s sons, Thomas and William H., entered in the same book, all in the hand writing of the testator, they are charged also with negroes lent.

The admission of this book in evidence was objected to by the defendant, on the ground that it amounted only to a declaration of the testator as to the terms of the gift. It was received, however, as proof of the existence of such a book, the entries being worth little, perhaps nothing, unless they should be connected, by other evidence, with the delivery of the negroes by the testator, to his said son, Samuel.

The receipt book of the testator was also given in evidence. This contains a receipt to the testator for taxes, from the tax-collector, for the year 1816 : it is dated 21st May, 1817, and by comparing the amount paid with a list of the testator’s negroes, for that year, contained in the same book, it is clearly shown that the testator paid the taxes for Diana and her child Xury, for the year 1816,

Robert Fraser and William H. Fraser, the witnesses before named, both stated that, according to their recollection and belief, the testator delivered, or lent, the negroes Diana and Xury to his son Samuel, in 1817, and that he had lent, instead of given, the negroes charged to his sons Thomas and William H. The latter, William H. Fraser, testified that between 1818 and the time of the death of the testator in 1820, he had frequently heard the said Samuel Fraser speak complainingly of the terms on which the testator had given him the negroes, remarking, that if he had any thing to give his children, he ought to do it at once ; and when, after the death of the testator, his will was read to him, he expressed great dissatisfaction with the manner in which the testator had left him the negroes.

If the time of the delivery of the negroes was at all important, I should not hesitate to conclude that it was in 1817, and that the witness, McPherson, was mistaken in supposing that it was in the Spring of 1816. The recolle.cfion of Robert and W. H. Fraser, is, that it was in 1817. The tax receipt shows that the testator paid their taxes for 1816, and he was not liable for them *82unless he had possession of them on the 1st of October of that year ; and, above all, the entry in the memorandum book proves it. The testator could not then have had any motive to misrepresent the time of the delivery, and the neatness and regularity with which all the entries in it are made, show that it was not the work of a dullard but a man of business. But the time is not material, for the declarations of Samuel Fraser, made not long after the entry, and frequently repeated, show that the terms on which the negroes were delivered, are correctly stated in that entry, and that it was a loan at will and not a gift in fee simple. In answer to a question put to the witness, McPherson, on his cross examination, he stated that he had heard Samuel Fraser say that his father had given him Diana and her child Xury ; and that was relied on as proof of an unconditional gift. That there was a gift was true, but the occasion did not appear to call for an exposition of all the terms and qualifications of the gift. Give it the effect contended for, and it is greatly outweighed by the evidence on the other side.

Evidence was introduced to show that Samuel Fraser was an improvident man, and constantly embarrassed with debt, and the evidence very clearly shows that he was always pressed for money, although he was supposed to be well able to pay all his debts, up to the year 1821, and the witness, McPherson, proved that the negroes were sold to pay off a debt which Samuel Fraser had contracted with him, even before he had possession of the negroes, and hence it is attempted to be inferred that the testator had a motive to limit the negroes over in the will, notwithstanding he might have before given them absolutely. Such an inference is clearly rebutted by the facts before stated; and besides, the improvidence and embarrassment of the son might have been a motive with the father not to give absolutely.

The defendant states in his answer, that two of the descendants of Diana have died since the filing of the bill; and it is insisted for the complainants, that the defendant is liable to account for their value. I think not, — the manner in which the defendant came into their possession, and the circumstances of the case, well warranted him in retaining possession of them, until the right was tried. And if they have died without any neglect or default on his part, he is not answerable.

It is therefore ordered and decreed, that the defendant do deliver to the complainants such of the negroes named in the pleadings as are alive, and in the possession of the defendant, and that he do account before the commissioner for th.e hire of the *83said negroes, since the death of the said Samuel Fraser. It is not a case, I think, for costs ; each party must pay their own.

The defendant appealed, and now moved this court to reverse the decree of the Chancellor, on the following grounds.

Because it being proved that John B. Fraser, the father, in his life time, put his son Samuel Fraser in possession of the negroes Diana and Xury, unaccompanied with any explanation at the time, the law under the circumstances raised the presumption of a gift —which was not rebutted by any sufficient legal testimony : and, as the defendant claimed under Samuel Fraser, his Honor should have decreed in favor oí the gift, and for the defendant.

And failing in the foregoing motion : then the defendant moved the court to direct an issue, to try the fact, whether John B. Fraser, the father, made a gift or not, to his son Samuel Fraser, of the negroes Diana and Xury.

The complainants also appealed, and moved the court to reform the decree so that the complainants recover,

First. — For the negroes that have died in the defendant’s possession, since the termination of the life estate of Samuel Fraser.

Second. — For the negroes that have died since the demand made and since the filing of the bill.

*¡Sims*and *Harllee,*for the defendant.

*Munro,*for the complainants.

Curia, *per*Johnson, Ch.

The question made on the circuit, as to the admissibility of John Baxter Fraser’s memorandum book in evidence, has not been renewed here. The court, therefore, will not go out of its way to decide it, especially as without it we are of opinion that the evidence sufficiently shews, that Samuel Fraser’s possession of the negroes was under a loan from John Baxter Fraser, and not an absolute gift. I thought so at the hearing on the circuit, and my confidence in the conclusion has not been shaken in the least by reviewing it here; and, on carefully looking into the facts proved, it will be found that there is no inconsistency or contradiction between the evidence of James McPherson and the other witnesses, except as to a point of time, about which either might be mistaken, and which was only important as connecting the declarations of Samuel Fraser contemporaneously with the entry in the memorandum book, and that with a view to its admissibility in evidence as a part of the *res gestee.*The court concur, therefore, in the opinion, that Samuel Fraser’s possession of the negroes was under a loan, and not an absolute gift from John Baxter Fraser, and that he might rightfully dispose of them by will.

*84The grounds of the defendant’s appeal do not call in question his liability to account for the hire of the slaves now alive, from the time of the death of Samuel Fraser. But those on the part of the complainants insist, 1st. That defendant is further liable for the value, and consequently the hire, of all the negroes which died in his possession after the termination of Samuel Fraser’s life estate: and 2d. If not, then for all that have died since the conversion, (the time of the demand made.) The first oí these grounds is distinctly abandoned by the counsel for the complainants in a written argument furnished the court; and the second gives rise to a question which the court regard as of some importance, and which seems to have been entirely overlooked. Until the case of *Young*v. Burton, McM. Eq. 255, instances were very rare in which the.court entertained bills for the specific delivery of negroes or other chattels ; and the necessity for a specific delivery, in order to administer ample justice to the party complaining, is the foundation of the jurisdiction, and it becomes a question of some importance, whether, when the negro, or other chattel, has perished before the hearing of the cause, so that the specific delivery cannot be decreed, the jurisdiction of the court -is not gone. There may be — and the decided inclination of my mind is that there is — a distinction between cases where the property has perished after conversion and before suit brought, and where it perishes afterwards. In the first case I incline to think the remedy is at law; but, as it is intended to have the whole question reargued, I forbear to express any opinion on it. It does not appear from the evidence, nor was important to the decision of the questions before the circuit court, whether the negroes, referred to in the grounds of appeal, died before the bill was filed and after the conversion, or whether they died after the filing of the bill: that may be important on the final determination, and the commissioner of the court will be directed to ascertain the fact.

It is therefore ordered and decreed, that the commissioner of the circuit court do ascertain and report to this court at its next session, whether any, and how many, of the slaves, named in the bill, died between the conversion by the defendant and the filing of the bill, and whether any, and how many, died afterwards. And the Solicitors of the parties are requested to reargue the questions arising out of the second ground of the complainant’s appeal, and also the question of jurisdiction above stated. In all other matters the decree of the circuit court is affirmed.

Harper, Johnston and Dunkin, CC., concurred.