Powell v. Olds , 9 Ala. 861 ( 1846 )

ORMOND, J.

We think the decision made by this court in Olds v. Powell, 7 Ala. 652, determines most, if not all the questions of evidence raised upon this record. That case, and this, arise out of the same transaction. In both, the question is, what did the father intend, when the slaves were sent home to the son-in-law? Did he design to make an absolute, or a qualified gift ? To ascertain this fact, it was decided, that the declarations of the father-in-law, at, or about the time, explanatory of his intention, was competent testimony. It was not intended to limit the period of making these declarations, to the precise point of time when the slaves were sent. It would generally happen in such cases as the present, that some discussion would be had in the family, before the property was lent, or given. When the property consisted of slaves, it is reasonable to suppose, that the wishes of the child would to some extent be consulted, as they would generally have a preference.

'Such appears to have; been the case here what negroes the son-in-law was to have, and the nature of the title he was to get to them, appears to have been fully discussed in the family, in the Interval between the marriage in August, 1840, and the succeeding January, when the plaintiff and his wife commenced housekeeping. The declarations therefore of the father, during this interval, explaining the nature of the title he intended to give, made in reference to the loan or gift of these slave to the plaintiff, or his wife, would be competent evidence of his intention. What he said after-wards, when the act was consummated, was not competent evidence for him, as he could not then alter, limit, or change the title he had made.

The deposition of Mrs. Gilmer, the first witness, was properly rejected, as it appears to relate, so far as it is pertinent; to a period anterior to the marriage; as where she speaks of what her father said when she received her own portion ; and to a time subsequent to the delivery of the slaves, when she states the reason her father gave, why “he had not entailed them.” This appears to point to a time subsequent to the delivery, and was properly rejected.

That portion of Frances Powell’s deposition which relates to the defendant’s declarations before the negroes were sent, should have been admitted’ — what she states of what he said after they were sent, does not vitiate the previous part, which evidently points to declarations after the marriage, and relates to this particular slave, and the character of the title the plaintiff was to get, when she was sent.

The deposition of Seymour Powell, for reasons already given, was properly excluded; it does not appear that the declarations were in relation to these slaves.

The evidence of Abner Powell falls within the rules here laid down. The conversation with defendant, deposed to, was in relation to these slaves, and to the nature of the title the defendant intended to make to them, to the plaintiff. It was some time after the marriage, being the latter part of the year 1840, and but a short time before the slaves were actually sent home to the plaintiff; it was therefore competent testimony of the intention of the defendant, to give the plaintiff a qualified, and not an absolute right to the slaves.

In reference to all these declarations of intention, prior to the actual delivery, it is proper to remark, that they are weaker in proportion as they recede from the time of the delivery, and will be entirely valueless, if at the time of the delivery, a contrary intention was expressed, or if from any other fact attending the transaction, it could be presumed the intention previously formed, had been abandoned.

The court erred in excluding the testimony of the juror, called to sustain the witness, whose credit had been impeached. The admissions made by him on the cross-examination, may have shown to the jury, that his recollection of what transpired on the trial, was too imperfect to be relied on ,• but that was a matter which the court could not determine. It was peculiarly the province of the jury to decide, what weight his testimony was entitled to, in support of the witness.

The facts proved, were doubtless quite sufficient to establish a conversion of the slave. The employment of her by the defendant for such a length of time, in the ordinary avocations of a domestic, and as part of his own household, is quite sufficient to require explanation from him, showing why he retained the possession. Instead of which we find he is now asserting title to the slave, and denying that the plaintiff ever had any right to her. In such a case, as it is clear a demand would have been met by a refusal, no demand is necessary.

Let the judgment be reversed, and the cause rémanded.