Detinue for a Negro Man Slave named Andrew, plea non delinet andissue. — The defendant Absalom *Page 188 Hooper, the father of the deceased, owned the negro in dispute. Col. Taylor, a witness, testified that he knew the negro when a boy about eighteen years ago, then in the possession of the defendant; that the witness wished to purchase a mare of the defendant about that time; who told him that the mare was his son's. Soon after this conversation the defendant told the witness that he had got the mare of his son, and had given him the negro boy Andrew for her. The son was about fifteen years of age about that time, and lived with his father. The witness lived a near neighbor to the defendant. He always after that time heard the boy called the son's in the family. The son intermarried with the plaintiff. He left his father and lived on a piece of land of his own, to which place he carried the negro, where he remained in his possession many years; that the negro was reputed the property of the deceased, after his marriage, through the neighborhood.
The mother of the plaintiff proved, that, a little time before the marriage took effect, the defendant was at her house, when he asked her respecting the intended marriage; upon which she observed that she thought it would not do; that her daughter had not been accustomed to hard work, which she thought was the case with his son; that neither of them had much property; upon which the defendant observed that his son had the negro boy. Andrew, and that he with his son could work; after which the witness was satisfied, and the marriage took place; the negro remained in possession of the son during his life, being considered by himself and others as the son's property. After his death the defendant got possession of the negro, claiming him as his property.
On the part of the defendant, it was proved that the son said whilst the negro was with him he belonged to his father, and that he expected to pay him for him; but it appeared from the testimony on the other side that he generally spoke of the negro as his own, and he was generally reputed as such in the neighborhood. It did not appear that the wife or *Page 189 her connections ever heard of the claim of the father until the son's death. This transaction involves the interests of three parties — the father, son, and the plaintiff — previous to her marriage. Contracts when not in writing are sometimes expressly proved, at others, must be ascertained from such circumstances as attend them; particularly where the interest of third persons are concerned. The jury will consider from the circumstances of the negro's being reputed the property of the son whilst in his possession, his speaking of him as his own, and the acquiescence of the father, if such was the case, whether there was not a gift. Should they believe the conversation which is stated to have passed between the father and the mother of the plaintiff; and that conversation was any inducement to the marriage; and further that the negro was delivered to his son upon his intermarriage, with an intention to make a gift, it should be considered as obligatory upon the father at least as it respects the wife now the administratrix.
It is a rule of law that acknowledgments, or confessions of parties, may affect themselves but not third persons. If the defendant had evidenced his intention to give the negro in marriage by his conversation before, delivery of the negro after marriage, and permitting him to remain in the possession of the deceased till his death, there would seem such an interest in the widow, the present plaintiff, as to bring into operation this distinction. Under this impression, the jury will reject the acknowledgments of the son respecting the property of the father in the negro.
Verdict, $600, the value of the negro; and $440.25damages for detention.