1

ERROR to the district court for the district of Kentucky, in an action of detinue for certain slaves.

2

The plaintiff below, Rebecca Willison, claimed title to the slaves under her grandmother, and at the trial offered parol proof that the grandmother, while Kentucky was a part of Virginia, had given them to her by a deed, which was lost. To this testimony the defendant below (the plaintiff in error) objected, and prayed the court to instruct the jury that the said deposition was not legal evidence in this cause; and that at the time this gift was supposed to be made, no gift of a slave in Virginia was valid unless made in writing, which writing was afterwards reduced to record; which motion was overruled by the court, and the defendant excepted.

3

P. B. Key, for the plaintiff in error, contended, that as there could be no valid gift of a slave but by deed in writing and recorded, no parol evidence could be given of the existence of such a deed and of its contents, unless it were first proved not only that the deed itself was lost, but that it had been duly recorded, and the record also destroyed.

4

The next best evidence to the deed itself is the copy from the record, and unless the loss of this better evidence be proved, an inferior grade of evidence ought not to be admitted.

5

The court ought also to have instructed the jury that a parol gift of a slave in Virginia was not valid. 1 Wash. 139. Turner v. Turner.

6

Jones and Harper, contra.

7

It is not stated in the bill of exceptions that this was the whole evidence. It was good as far as it went. If there was evidence that the deed had been duly recorded, and that the record had been lost, it would have been complete evidence of a title. But it appears by the depositions that before the expiration of the time limited for the recording of the deed, the plaintiff and the slave removed from the state of Virginia to South Carolina. It was a good deed at that time, and vested a title in the plaintiff until the expiration of the time for recording. Before that time arrived, the plaintiff and slave were both out of the jurisdiction of the laws of Virginia.

8

But by the laws both of Virginia and South Carolina, possession for a certain time gives a good title. Evidence of the deed was evidence of the claim under which the plaintiff held the possession.

9

It was not necessary for the plaintiff to prove a special title, for possession alone was sufficient to support the action.

10

The prayer to instruct the jury that a parol gift was not valid, was a prayer for an abstract opinion, and in its terms not applicable to the case. The court merely refused to give the instruction. It might be because the question was put to the court in such a manner as not to connect it with the case; it might be that the court thought the question irrelevant.

11

Key, in reply.

12

The fact of removal does not appear in the bill of exceptions, and we cannot seek for facts elsewhere.

13

MARSHALL, Ch. J.

14

The error assigned consists in both the admission and the operation of the testimony. So far as evidence of the existence of a deed went to show the nature of the possession which accompanied the deed, so far it was admissible; but it was not in itself evidence of any title in the plaintiff. There was no error, therefore, in admitting the testimony as to the deed.

15

But in overruling the prayer to instruct the jury, 'that at the time the gift was said to be made, no gift of a slave was valid unless made in writing, which writing was afterwards reduced to record,' the court below is to be considered as having given an opinion that a parol gift was good. This court is, therefore, of opinion, that the court below erred in refusing to give the latter part of the instruction prayed by the defendant.

16

This court gives no opinion as to the validity of title acquired by possession.

17

Judgment reversed, and the cause remanded.