When this case was in this court at a previous term, (17 Ala. 222,) most of the points now presented by the bill of exceptions were decided. That decision will show that the Circuit Court did not err in admitting the declaration of Garland Dawkins, made while he was in possession of the mother of the slaves sued for.
Wo are unable to perceive any error in admitting the testimony of Mrs. Dawkins to prove that her late husband was in the habit of exercising control over the slave. We understand the witness to moan by the term “habit,” that her husband exercised repeated acts of control — that he usually or customarily controlled the slave. If the term, being general, required explanation so that the jury might attain to a more definite idea of the witness’ meaning, the plaintiff could have called for such explanation as he deemed necessary, by cross examination. The proof made by Mrs. Edge, instituting a comparison between her child and that of Mrs. Nelson, was, wc think, irrelevant, and *99should, have been rejected; but vre cannot percieve how such proof could have injuriously affected the plaintiff.
As to the declarations of Mrs. Nelson, while she had the slave in her possession, if it were conceded that she held as'the guardian or bailee for her infant son, then it is clear that no declaration of her’s could be received in evidence to defeat his rights; but we gather from the record that the character of her possession, which she testifies continued for more than seven years, was an important inquiry; for, aside from the fact whether there was a gift, yet if she held the possession of the slave, claiming her as the property of her infant son, asserting his title in an open, notorious manner, as hostile to the claim of every one else, the statute of limitations would perhaps have an important bearing and render it necessary for Dawkins, or those claiming under him, to show that by her acts and declarations contemporaneous with her possession and tending to show its character, she was holding the slave as the property of Dawkins, and not for her son.
We are, however, of opinion that the court misconceived the law in the instruction to the jury, as to the force and effect of Mrs. Nelson’s testimony in respect to the gift. She not only speaks of a conversation had in June, 1828, as tending to show an intention to give, but of an actual delivery of the slave, which, if made in pursuance of such intention, would have consummated the gift. The court could not then properly assume, that when the witness said the slave was given in 1823, that this was a conclusion deduced from the conversation merely, but should have left the whole testimony to the jury, that they might weigh it and determine for themselves whether the gift was not made in fact, as consummated by the delivery.
Let the judgment bo reversed and the cause remanded.