Garner v. Smith

7 Gill 1

• Court: Court of Appeals of Maryland
• Decided: December 15, 1848
• Status: Published

Opinion

Spence, J.,

delivered the opinion of this court.

Action of replevin, pleas, non cepit, property in defendant, and property in a stranger.

The plaintiff offered evidence to the jury, that the negroes were owned and raised by his testator; that they remained in his possession until 1832, when they were sent on the farm of testator’s daughter, then Mrs. Campbell, after her husband’s, Campbell’s, death, (now Mrs. Miles,) where the negroes have remained ever since, in the possession of Mrs. Campbell, up to her marriage with Milas, and in his possession ever since, and employed by said Miles in working on said farm.

And further proved, that Elwily Smith did stock the farm of his daughter, Mrs. Miles, and sent a large number of negroes, including the negroes in dispute, to said farm, in June 1832.

The defendant proved by a competent witness, that he was at Ehoily Smith's the plaintiff’s testator, in 1841 or 1842, when said testator told witness, that he had given nearly all the young negroes to his sons at the south, and to Mrs. Miles, his daughter, and that his stock of negroes was old and unable to work his farm, and that he should be obliged to buy negroes for his own use. The defendant also proved by another witness, that he was assessor in 1841, and, at that time, called on Elwily Smith to assess his property; when Ehoily Smith told him, that he had given nearly all his young negroes to his children, naming Mrs. Miles as one, and that he should be obliged to buy negroes, as his stock of them was old and unable to work his farm; that he gave in twenty odd negroes to the assessors; the witness then went to Thomas H. Miles, and Miles gave in from fifteen to twenty, his wife aiding him in doing so. The plaintiff then offered to prove by C. Combs, that in the fall of 1831, he was called on by Mrs. Campbell, then a widow, and now Thomas H. Miles' wife, to go her security for the rent of the farm called “ Chancellor's Point;" that Mrs. Campbell then told witness, that her father, Elwily Smith, had said, he would give her one-third of every thing on his farm, to stock her farm, except negroes, and would loan her one-third of his negroes during his life, and, after his death, would give her one-half of them. To the admissibility of which evidence, the defendant, by his attorney, objected, but the court overruled the objection, and permitted the evidence to go to the jury.

The only question in this case is, whether the testimony given by Combs, was legally admissible to go to the jury?

The plaintiff in this case had offered evidence to the jury, to prove property in his testator to the negroes in dispute, and the defendant, without offering any evidence to the jury to prove property in himself, attempted to prove property in Mrs. Miles, by a gift from Elwily Smith, the plaintiff’s testator, to his daughter, Mrs. Miles, by the declarations of said Smith, made to other persons. Now, although Mrs. Miles is not a party to this suit, and her right of property, if she have any, to the negroes involved, will not be affected by the decision in this case; yet, forasmuch as the defendant has relied on her right of property, and offered evidence to prove it, to defeat the plaintiffs, we see no sound reason why declarations made by her, about the time she obtained the possession of the slaves, as to the nature and character of her possession to them, might not be submitted to the jury, to rebut the evidence offered by the defendant, to prove property in her. The question made for the jury to decide by the evidence, is, whether the slaves were the property of Mrs. Miles, by a gift from her father, in June 1832? the declarations made by Mrs. Miles about that time, that the negroes were loaned to her by her father, is a fact explanatory of her possession, and may be considered a part of the res gesla.

“In general, where the evidence is offered as a mere fact, which is connected with the matter in dispute, and not with a view to affect the party, otherwise than as the actual existence of the fact affects the nature of the transaction itself, then, although it was a transaction between others, yet, as a mere fact, and part of the res gesta, it is evidence.” Kolb vs. Whitely, Trustee of Trowbridge and Taylor, 3 G. & J., 188.

JUDGMENT AFFIRMED.