On the part of the Plaintiff, it was proved that these slaves were once the property of Barnaby Bulls; that his daughter intermarried with Willis Watson in June, 1807, and that shortly after the marriage Bulls told the negro Nanny that she must go to Watson's, and wait upon his daughter; that he would not part her from her husband, but she must go and stay until he got another to send in her place. Another witness proved that a few days before Nanny went to Watson's, Bulls said he intended to send her there to wait on his daughter. Another witness swore that he was once called upon by Watson to write his will, and that Watson, after disposing of his property, said, that as to Nanny and her children he would have nothing to do with them, but leave them to his wife and her father to manage. This witness also swore that George went into Watson's possession in the spring of 1807 or 1808, from three to six months after the marriage; that he had only one conversation (134) with Watson about the negroes, and that was when *Page 106 he was called upon to write his will and being asked to repeat the conversation, he said that Bulls told him he had bought the negroes at John N. Smith's sale, and had sent them to him, and that his wife might have them; he would have nothing to do with them. Upon further examination, he said, Watson told him the negroes were not his property; and upon his last examination, he said, Watson's remark was, that Bulls and Betsey (Watson's wife) might do as they pleased with them. There were circumstances in the appearance of this witness, and variations in his evidence, which called upon the jury for an exercise of their judgment as to his credibility.
Another witness swore that she had lived some time in Watson's house, and frequently heard Watson say that the negro Nanny and her children were not his property: that Bulls had never given them to him, and he did not expect he ever would; that he had a mind to send them home, as they were only an expense to him.
As to the negro George, the evidence was that he come into the possession of Watson after the marriage; and a witness said that wishing to purchase him, he applied to Bulls for the purpose, who told him that he had given the negro to Watson and he must apply to him.
Barnaby Bulls died intestate, leaving Watson and his daughter surviving him. Watson died, and the Defendant, as his Executor, took the negroes into his possession. One Jernigan then married the widow Watson, and applied to Brooks, the Defendant, to know whether he would deliver the negroes up to Bulls' administrator? He answered that he would hold them as the property of Watson, whereupon this suit was brought.
The Judge left it to the Jury to say whether a parol gift had been made by Bulls to Watson; and instructed them that if they believed such gift had been made, the Plaintiff could not (135) recover; but if they believed there was only a loan of the negroes, he should have a verdict.
The Jury found for the Defendant, and a rule for a new trial being obtained, the same was sent to this Court. The act of 1806 was made to put an end to litigation, perjury, and the difficulty of investigating ancient transactions, of which parol gifts of slaves had been so peculiarly prolific. With this view, the sixth clause requires that such gifts shall be in writing, signed by the donor, attested by at least one credible witness, and proved or acknowledged, and registered within one year, in the county where the donee resides, provided he be in the actual possession, otherwise to be *Page 107 registered in the county where the donor resides. From this general purview, the second proviso to the third section exempts the case of a gift from a parent to a child, of slaves which remain in possession of the child at the time of the death of the parent, intestate. In such case, the slave or slaves are to be considered as an advancement to the child, and to be regulated by the laws then in force relating to advancements made to children by a parent in his lifetime. The case described in this proviso has then occurred in the state of facts exhibited in this case; and no law then in force permitted the recovery of an advancement by the representatives of the parent. It is a gift, or not, at the option of the child advanced; if, at the death of the parent, he elect to bring it into hotchpot, he may do so, and come in for a distributive share; but if he be satisfied with what he has received, he may consider it as a gift, and a gift protected by this proviso. There is nothing in the language of the proviso, from which an intention in the legislature can be inferred to confine its operation to gifts theretofore made. If such only had been intended, it is highly probable that the language used would have been more explicit, and more expressive of such an intent. But the words "shall have put" clearly embrace the case before us. There must be judgment for the Defendant.
Cited: Stallings v. Stallings, 16 N.C. 303; Thompson v. Todd, 19 N.C. 63;Cowan v. Tucker, 27 N.C. 82. (137)