Raines v. Perryman

— Penning J. By the Court. delivering the opinion. • Was the opinion of the Court below, on the motion for a nonsuit, right ? [1.] At the time when that motion was made, the only evidence to show title in the plaintiffs, was the deed from James Fretwell to Cullen Fretwell conveying the slave to him in trust for Nancy Perryman, during her life, and afterwards, for her children. And there was evidence to show, that James Fretwell, though he made this deed, had never been in possession of the slave. There was no evidence to show, that he then had, or that he ever had had any title to the slave. Thus stood the case, at the time when a motion for a nonsuit was made. The Judge announced, that he would sustain the motion, unless further evidence was offered. And we think, that he was right. The plaintiffs claimed under James Fretwell. If he never had title, he could give them none. He never had title. The evidence thereon, being the best. Therefore, they had none. The plaintiffs then, acting on this announcement of the [534] Judge, attempted, by further evidence, to show title in James Fret we II. And first, they offered the interrogatories of Cullen and Elizabeth Fretweli. These two witnesses swore, that Martha Henderson, the daughter of John Henderson, became the wife of James Frptwell; that the slave Malinda, originally, belonged to John Henderson; that they heard him say, in 1834, that he had given Malinda, to his daughter Martha. But they also swore, that he made this gift to Martha, by will and deed of gift The Court excluded the interrogatories — holding that the interrogatories showed that there was better evidence of the gift to Martha, than the sayings of John Henderson, viz: the will and the deed of gift. And we think, that the Court was right. It is true, that the interrogatories did show, that Shere was a will and a deed of gift of John Henderson, which conveyed the slave to his daughter Martha. A deed or a will is higher evidence than sayings. And it is a rule of law that when the existence of superior evidence is shown, inferior evidence shall not be received, until it. be also shown, that the superior is unattainable. It was not shown, that the deed or will was not attainable. [3.] Secondly, the plaintiffs offered the will of John Henderson, of which the fifth clause was as follows : “ I confirm, unto my daughter, Martha Henderson, the land and negroes given her, by me, m a deed of gift, bearing-date 30r.b July, 1833; and vest in her, the right of said negroes and land.” The Court held, that this will should be excluded, until the deed of gift to which, it refers, should be produced. And we think, that the Court was again right. The will did not, itself, identify the negroes, but referred to the deed, as that by which they were to be identified. The will, therefore, did not, by itself, show, that Malinda, the slave in dispute, was one of the negroes, it gave to Martha Henderson ; it did show, however, that that was a matter to be settled by the deed. On that point, then — the point, wheth [535] er Malinda was one of the negroes covered by this clause of the will or not — the deed was the highest evidence. The deed was not produced; no excuse was offered for its non-production. Under the rule aforesaid of the best evidence, the Court was, therefore, we think, required to exclude the will. [4.] Thirdly, (he plaintiffs offered to establish title in James Fretweil, by showing, that he, Fretweil, had said, that the girl Malinda, was his; in other words, by showing, that Fretweil, whilst admitting, that he had never been in possession of Malinda, yet claimed title to her. This, they offered to establish, by the interrogatories of James Fretweil himself. In those interrogatories, he swore, that he had never had possession of the slave, and yet, that she was his ; but he also swore to matters which made it clear, that this, his claim to the slave, was a claim under the will of John Henderson. That will, then, was better evidence of his title, than his verbal assertion that he had a title under the will. This verbal assertion was, therefore, to be excluded, under the rule aforesaid, until the will should be produced, or its non-production be accounted for. The Court did exclude it. We think, therefore, that the Court did right. The charge of the Court, was but a repetition of the opinion of the Court, announced on the motion for a nonsuit. The charge was, therefore, we think, right. In conclusion, it may be remarked, that according to the disclosures of the evidence in this case, the title to the slave, is not in Elisha Perryman, but in the legal representative oí David Perryman. Those disclosures show, that Elisha received the slave, from David, to secure the payment of a loan of $400 — of which $300 has been repaid; they show also? that the hire of the slaves thus far, has been more than sufficient to pay off the remaining $300. Should the legal representative of David, recover the slaves, the present plaintiffs may, perhaps, assert against him, the title which they have been trying to assert against Elisha [536] Perryman ; if they can and should do that, they may, by bringing forward their higher evidence, have better success, than they have had in this suit. Judgment affirmed.