delivered the opinion of the court. This is an action of trover, by the appellee, who was plaintiff below, for three negroes, which he claims in right of his wife, and comes up on three bills of exceptions taken at the trial by the appellant; on the first of which three objections are raised to the opinion of the court below.
First. That the bill of sale from John Deford to Thomas L. Deford, was void for uncertainty.
Secondly. That it eould not be explained by parol evidence; and
Thirdly. That it was not duly acknowledged, and therefore that the copy was not competent evidence,
'The first and second objections there is some difficulty in understanding. The bill of sale is of “all the vendor’s personal estate, of whatever kind or description.” Now, what uncertainty there is in this, is not easily perceived; the negroes in question are not indeed named in the bill of sale; but surely if they constituted a part of the personal estate of the vendor, ■ they were embraced by a grant of the whole, unless .it can be supposed, that a grant of the whole may not include a part . And if the bill of sale was in itself good and effectual to pass property of that description, the only matter of inquiry was, whether the negroes in question did in fact constitute a part of the personal estate of the vendor? But here the second objec-: tion is started, that the evidence, offered to show that they were • a part of the personal estate of John Deford, was improperly admitted, on the ground that parol evidence cannot be received to explain a written contract.
It is a general rule of law, that parol evidence cannot be admitted to contradict, add to, or vary the terms of a written instrument. But that rule has no kind of application to this case; the parol evidence offered and received, was not to contradict, add to, or vary the terms of the bill of sale; it was not. • *155to show, that a part passed by a grant of the whole, or to explain what was meant by the words “all my personal estate of whatever kind or description,” but only to identify the negroes, and to show that they did constitute a part of th,e personal estate of John Deford, at the time of making the bill of sale, and was for that purpose properly admitted.
The third objection, that the bill of sale was not duly acknowledged, . and the copy therefore improperly admitted in evidence, is of a different character.
The act of 1729, ch. 8, s. 5, requiring sales, &c. of goods and chattels, in certain cases to be in writing, also requires that wi'iting to be acknowledged and recorded. Ry the office copy, which was offered in evidence, of the bill of sale from John Deford to Thomas L. Deford, it does not appear that that paper ever was duly acknowledged; the endorsement on the back of it does indeed purport to be a certificate of acknowledgment before a justice of the peace, but by vvhom the acknowledgment was made is not stated. It was probably an acknowledgment by ,John Deford, the vendor, and his name omitted by negligence or accident; but-to receive such an- imperfect instrument as a due acknowledgment of a deed, might lead to a dangerous laxity in practice, and furnish a precedent of mischievous tendency. It is not, therefore, as to this point, material to inquire, whether under the facts and circumstances of the ease, the sale by John Deford to Thomas L. Deford, was by the act of 1729, ch. 8, required to be by writing acknowledged and recorded; if it was, the bill of sale, not being duly acknowledged, it was improperly admitted to record, and the office copy ought not to have been admitted in evidence; and if it was not required to be recorded, the office copy was equally incompetent testimony, the recording of a paper not required by law to be recorded, not having the effect to dispense with the production of the original, and to make a eopy legal evidence.
The bill of exceptions is badly worded, but the prayer set out must .be considered as an application to the court for the opinion, that the copy offered in evidence of the bill of sale, was not evidence of a transfer of title to the negroes from John' Deford to Thomas L. Deford, which opinion the court ought .to have given.
*156The only question raised upon the second bill of exceptions is, whether in the case of a gift of negroes, where the donor does not retain possession, an office copy of a bill of sale is evidence of title in the donee? -
By the act of 1763, ch. 13, a gift of negroes is only required to be by deed, acknowledged and recorded, where the donor retains possession; and that solemnity not being authorised or required by law, when the possession passes to the donee by delivery, at the time and in pursuance of the gift, an office copy, in such case, of a bill of sale, is not competent evidence to prove title in the donee.
But that question does not properly arise in this case; the proof is, that Thomas L. Deford was in possession of the negroes at the time of executing the bill of sale to Mary Ann Deford, his infant granddaughter, now the wife of the appellee; and there is not one word of evidence to show, that he parted with the possession at the time; on the contrary, the natural and almost necessary inference would be, considering the sex, age, and situation of the donee, that he did not. The application, therefore, to the court to direct the jury, that if they should believe from the evidence that Thomas L. Deford, at 'the time he executed the bill of sale to Mary Ann Deford, did not retain the use and possession of the negroes mentioned in if, the office copy of the bill of sale, which was offered in evidence, was not legal and competent testimony, was upon an abstract proposition, not warranted by, nor founded upon, theevidence in the cause, and the court did right in rejecting the prayer.
The last bill of exceptions was taken to the refusal of the court to direct the jury, that upon the whole of the evidence the plaintiff below was not entitled to recover; in which refusal the court was clearly right. The proof on the part of the plaintiff below was shortly this; that the negro woman named Henny, and her daughter Julian, were formerly the property of John Defac'd', that he frequently acknowledged he had sold them to his father Thomas L. Deford, to whom the use and possession were transferred; and that Thomas L. Deford transferred them, by bill of sale, to his granddaughter Mary Ann Deford, the daughter of John Deford, now the wife of the plaintiff below; and that Alexander and Commodore are *157also the children of Henny, born after the execution of the bill of sale from Thomas L. Deford to Mary Ann. The defence was founded on a deed of manumission of the negroes, for whom the suit was brought, executed by John Deford, since the marriage of his daughter. The proof, therefore, of his acknowledgments anterior to the deed of manumission, that he had sold Henny and Julian to his father Thomas L. Deford, and also that the whole of the negroes in question belonged to his daughter, to whom they had been given by his father, was properly admitted in evidence; and the court Gould not have given the direction prayed, without usurping the province of the jury, and deciding the question of right between the parties, contrary to the testimony in the cause.
Upon the whole, we concur in opinion with the court below, on tire second and last bills of exceptions, but dissent from the opinion expressed in the first exception. That dissent, however, furnishes no ground for a reversal of the judgment; the merits of the case are clearly against the appellant; and if the copy, which was offered in evidence, of the bill of sale from John Deford to Thomas L. Deford had been rejected, there was proof enough without it to sustain the action.
JUDGMENT AFFIRMED.