majority">Running, J.

By the Court. delivering'the opinion.

Did Henry Sanderlin, on his marriage, receive the slave from his father, Jesse Sanderlin, as a gift, or as a loan ? If, as a gift, was the gift cancelled and the slave given back to the father ?

These are the two main questions in this case.

The Court allowed the “complainants to prove the value and kind of property of Jesse Sanderlin.” The first exception is to this decision.

Is the fact, that a man was able to do a thing which, he perhaps, ought to have done, evidence that he did it ? Doubtful, certainly.

. Judge McDonald is clear, that the Court erred in this decision, and the other two member's of the Court are not prepared to say, that he is wrong in that opinion. They are clear that there were errors on other points, and that makes it the less necessary, that they should express a more decided opinion on this point.

The second exception is thus stated: “That the Court erred in refusing defendant’s counsel to ask witness, Josiah Holmes, if he told the truth when he told William Johnson that the negro did not belong to'him, witness, nor to Sarah E. Sanderlin, nor never did, but belonged to Jesse Sanderlin, and that he had known it all the time, for that Jesse Sanderlin had, all the time, paid taxes on him.”

[1.] It is assumed in this question that the witness had told Johnson a particular thing. The witness had denied telling Johnson that thing. This, therefore, was an assumption which the counsel asking leave to put the question, was not authorized to make. It was right in the Court, therefore, to refuse leave to put the question.

The second exception then is not good.

The same is true of the third. The quantity of property owned by Holmes, though he was Mrs. Sanderlin’s father, could not possibly have any bearing on either of the issues.

*588One of the questions being, whether the slave passed from Jesse Sanderlin, the father, to Henry Sanderlin,the son, as a gift, or as a loan, the intentions of Jesse, existing even so long as a month before the time when the slave did so pass, were entitled to some respect. And if they were entitled to any respect, however small, evidence of them was admissible.

There is nothing, then, in the fourth exception.

The bill states that Henry Sanderlin died “seized and possessed, as of his own right,” of“ a man slave named Elias,” “which slave had been in the possession and under the control of said Henry for more than four years immediately preceding his death, as of his own right and property.”

This statement amounts to saying that Henry Sanderlin held the slave as his own property, and not as a loan from anybody.

A part of the answer of ffm. Sanderlin is in these words, “that he (Wm. Sanderlin) was called upon by Jesse Sanderlin, the father of said Henry Sanderlin deceased, and the said Henry, to witness that said boy Elias was only loaned to the said Henry, deceased, and not given to him.”

This part of his answer the Court held not to be responsive to the statement aforesaid, in the bill. Two of us, Judge Lumpkin and myself, think that it was.

[3.] The answer to a bill has to be upon the “information,” as well as upon the knowledge, remembrance and belief, of the party answering. He, therefore, is directly called on to state what his “information.” is.

The Court refused to charge the following request:

“If the negro went into the possession of the son as a gift, and the father and son afterwards rescinded that gift and agreed to make it a loan, then it became a loan, and so remained, and no other person has a right to interfere with-it.”

Was there any evidence to authorize this request ? Judge McDonald thinks that there was not. Judge Lumpkin and myself think that there was.

*589Hay, a witness of the complainants, testified that he heard Jesse Sanderlin say that he “had let Wm. Sanderlin have Bob,’ and charged him to him at five hundred dollars, and had let Henry have Elias, intending to charge him in the same way,but neglected to doit; afterwards finding the boys in debt, and fearing they might get into difficulties, he proposed to let them have the negroes as a loan. Henry hesitated, a moment and then said he would do it, that he believed he would rather take him that way, for if the negro died he would not. lose him.”

This amounts to a statement by Jesse Sanderlin, that the gift had been rescinded, and in its place a loan of the negro substituted.

And such a statement is, in the opinion of Judge Lumpkin and myself, sufficient to authorize a jury to infer that every thing took place necessary to make the rescisión and substitution good; and therefore, sufficient to authorize a jury to infer that a delivery, (either actual or symbolical) of the negro, by the son to the father, and a redelivery by the father to the son, took place. True, we two do not think that a jury would be bound to infer this, but merely that they might do so. And certaiuly a jury ought not to do so if the other evidence was such as to satisfy them that the inference could not be made. These are questions for the jury.

But if the statement amounted to this much, it was sufficient to authorize this request The Court, then, in the opinion of Judge. Lumpkin and. myself, ought to have charged the request.

The rest of the Court’s charge needs but a single remark. The contest in the case was between the father, and the representatives of the son, not between the father and creditors of the son. Therefore, it was quite immaterial, whether the cancellation between father and son, if there was a cancellation, was made to defraud the son’s creditors or not.

New trial ordered.

McDonald J.,

dissenting.

When a gift is perfected by the delivery of the property to the donee, in order to convert the gift into a loan, the property must be revested in the donee, for by the gift the title passed from him. To do this there must be either a conveyance in writing, or an actual or symbolical delivery of the property, and there being no evidence of either in this case, the presiding Judge ought not to have given the charge, on that point, as requested by the defendant’s counsel.

The property remained in the possession of the donee down to his death, if indeed there was a gift; and there having been no conveyance or redelivery of the property to the original donor, to consummate a gift from Henry Sanderlin to Jesse Sanderlin, the charge ought not to have been given.

If the property had returned to the possession of the donor and had remained with him, the admissions of the donee that the gift had been cancelled, made while the property was in the possession of the original donor, would have been admissible.

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