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Reid vs. Butt, adm'r.

notwithstanding the joint possession, the title was in the father; especially when it is remembered that no such act of dominion was ever exercised by the son. The acts and declarations of the father, that these slaves were the property of the son, were negative in their character; and likely grew out of the deed of gift which the father at one time made to the son, but subsequently destroyed. But here were distinctive acts of individual ownership on the part of the father, necessarily known to, and for aught that appears to the contrary, acquiesced in by the son. Certainly in this view of the charge we are clear ; it was proper, under the peculiar facts of this case.

[4.] Was there error in the Court in its instructions respecting the deed of gift?

It appears from the testimony that a paper was carefully deposited in a cheese box, and locked up in the trunk of the father, which he called a deed of gist to Robert, his son; complaining to his near neighbor, Mr. Farmer, that his son had not treated him well, he directed him where to find the paper, and it was deliberately burnt in the presence of the witness; the father remarking at the time: “ This is an end of that. Bob shall not have my property."

It is complained that the Court erred in holding that so far as the title depended upon this paper, it must appear that it was duly executed, and that the negro in dispute passed by it. Whereas, counsel contend that the paper having been destroyed by the father, every presumption is to be made against him as the spoliator of the title. But this argument assumes that this instrument was a title. That it had been duly executed and delivered. If it had always remained in the possession of the father, it was a nullity, and he had a right to destroy it. For myself I am fully persuaded that it never was delivered. I infer this not only from the careful custody and concealment of it by the father, but if it ever had been delivered the son knew it, of course, he being the


Reid vs. Butt, adm'r.

donee in the deed ; and yet he never attempts to procure the benefit of this important document by giving notice to produce it, establishing it as a lost paper, or proving its destruction and contents. Had he known of the existence of this deed of gift; would he not have taken some steps to make it available, seeing that it would have settled forever this controversy? He says, through his counsel, that he never heard of its destruction until it came out on the trial. If he knew of its existence and not of its loss, how much more probable that he would have taken measures to obtain it.

The truth is, he knew nothing of it, it not having been delivered. And yet all this disclosure shows that the father thought the property his, and that a conveyance from him was necessary to pass the title to his son. And it is a key to all the declarations he made, that these negroes belonged to his son. During the existence of this paper he so spoke of them. And if they did not pass by this inchoate deed, when and how did the son acquire the title?

[5.] Passing over several minor matters, which amount to nothing, counsel for the plaintiff in error argue that the administrator can only recover one half of the property; and that as heir at law, the son's title to Reid to the other half is good. Had the defendant gone into equity and shown that the son, under whom he claimed, was the only heir, and that there were no debts, he might have been entitled to a perpetual injunction against the action of trover. Or if it turned out that Mrs. England, the sister of Robert C. Laughter, was living, or if dead before her father, left children, or since, a husband, then if there were no debts, the recovery would have been restricted to one half the property. Perhaps the same proof might have been made at law, attended with the same results.

But no such evidence was submitted. For any thing that appeared to the contrary, the administrator was entitled to recover the whole property, or its equivalent in value.

Upon the whole, the justice of the case is with the defend

Jackson vs. Paxson, adı'r.

ant in error, and for anght that appears in the record to the contrary, the law of the case has been properly administered.

Judgment affirmed.

John M. Jackson, plaintif in error, vs. James A. Paxson,

adm'r, defendant in error.

Two parties agree that one of them should furnish the materials and the other should

make two buggies, and one of the parties should fix the prico and then either might sell; the death of one of the parties does not affect the power of the other to sell the buggies.

Trover and new trial, from Whitfield county. Decided by Judge Trippe, October term, 1857.

This was action of trover brought by James A. Paxson, as administrator of William A. Monday, deceased, against John M. Jackson, to recover two buggies. It was claimed that the buggies belonged to Monday at the time of his death. The defendant purchased them from Bloodsworth. Evidence was produced at the trial, by the defendant, that there was a contract between Monday and Bloodsworth to the effect that Monday was to furnish the material and Bloodsworth was to make the buggies, and when finished, Bloodsworth was to fix the price of the buggies and either of the parties was to sell them and the proceeds were to be divided equally between them. That Jackson furnished the iron to iron off the buggies, and that he purchased them from Bloodsworth—the amount due to him for the iron being deducted out of the price,

It was proved on the part of the plaintiff that the buggies

Jackson vs. Paxson, adm’r.

were in the workshop of Monday at the time of his death, and that they were removed by Bloodsworth.

The Court charged the jury that if they should find from the testimony that the contract between Monday and Bloodsworth was, that Monday was to furnish the materials and Bloodsworth make the buggies, and that Bloodsworth was to have one-half of what the buggies sold for as pay for his labor, that this would not make them partners, and in that event, they must find for the plaintiff'; that to constitute them partners, the contract must have been to share the profits and loss of the business. And if they should find from the testimony that the contract was to share the profits and loss of the undertaking, this would constitute them partners, and this would authorize Bloodsworth to sell the buggies, and in this state of facts, if they should believe Jackson purchased the buggies from Bloodsworth the jury must find for the defendant.

The jury found for the plaintiff, and the defendant moved for a new trial on the following grounds:

1st. Because said verdict is contrary to law.

2d. Because said verdict is contrary to evidence, and strongly and decidedly against the weight of evidence.

3d. Because the Court erred in the charge to the jury, (above set out.)

This niotion for a new trial was overruled by the Court, and the defendant filed his bill of exceptions, assigning as error the charge of the Court to the jury, and the refusal to grant a new trial.

Walker appeared for the plaintiff in error.

JONES & Moore for the defendant in errror.

By the Court.-McDonald, J. delivering the opinion.

We think that the presiding Judge in the Court below err

Humphries vs. McWhorter & Brightwell.

ed in charging the jury, that, if they should find from the testimony, that, by the contract between Monday and Bloodsworth, Monday was to furnish the materials, and Bloodsworth was to make the buggies, and that Bloodsworth was to have one-half of what the buggies sold for as pay for his labor, this would not make them partners, und in that event they must find for the plaintiff.

The Court ought to have charged the jury that if the contract was as testified to by Cox, and they should find that Monday and Bloodsworth were part owners of the buggies, and that, by special agreement, Bloodsworth had a right to put a price on the buggies, when they were done, and either party might then sell them, in that case, the sale made by Bloodsworth was good, and the verdict should be for the defendant. Collier on partnership, $1217.

If Bloodsworth had an interest in the buggies, and had power to sell by special agreement, the death of Monday could not affect his authority to sel).

Judgment reversed.

GEORGE W. HUMPHRIES, plaintiff in error, vs. McWHORTER

& BRIGHTWELL, defendants in error.

An endorser sued in the same suit with the maker of a promissory note, and residing

in a different county, may waive the issuing of a second original and process, and his waiver will bind him.

Affidavit of illegality, from Cass county. Decided by Judge TRIPPE, September Term, 1857.

An action was brought in the Court below by the firm of McWhorter & Brightwell, against Charles H. Hamilton of Cass county, as maker, and George W. Humphries, and Lloyd

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