Phillips, guar. vs. Chappell et al. adm'rs.

tionship of parent and child being considered, the intention is doubtless to be presumed, as long as there is nothing but the face of the instrument to go by, to have been an advancement. Ellison vs. Cookson, (1 Ves. Jr. 108.) But this presumption is one which, at least in Equity, is liable to be rebutted, and rebutted by parol evidence; such, for example, as shall show the intention to have been either of the other two mentioned things. In support of this proposition, numerous cases may be found cited in 2 Stark. Ev. 569, and in note 1003 to Phil. Ev. with Cowen & Hill's Notes.

[1.] The Court below, therefore, in rejecting the evidence because it was parol evidence, erred.

At the time when James Hopkins made the admissions, he had, it may be true, parted with the "possession" of the negroes; but if it be true that he had also parted with "all interest" in them, how comes it that his son, the defendant in error, can say that they are any part of the father's estate, and claim them by inheritance? The nature of the son's claim, is such as to make it indispensable for him to concede that the father, at the time of making the admissions, had not parted with all interest in the negroes.

This being so, the admissions of the father bound the father, as they were against his interest; and what binds the ancestor binds the heir. Smith vs. Smith, (3 Bieg. N. C.) And see Dartmouth vs. Roberts, (16 East. 844.) Ivat vs. Finch, (1 Taunt. 141.)

[2.] The Cat below, therefore, in holding that Hopkins, the ancestor, as the time of making the admissions, had parted with all interest in the slaves in such a sort that his admissions could not bind his hoh, etrol.

2

The effect of admitting the ecce, is conceived, would have been, not to "set up a riot to make out the instru ment to be a will, but to me to a deed-a conveyance on a valuable çor sidorption-te compromise of a claima conveyance, therefore, irrevocal-a conveyance conveying a right in the present-a possession in the Lature.

Booth vs. Terrell.

Therefore, as it appears to us, the Court below was wrong in holding that the effect of the evidence, if admitted, would be to set up a will by parol.

No. 5.-MARTHA BOOTH, plaintiff in error, vs. RICHMOND TERRELL, defendant in error.

[1.] The term lend, when used in a will, is generally equivalent to gift. [2.] When the will shows that the testator did not intend the legal estate to pass to the legatee, then the word lend has its appropriate meaning.

[3.] A loan implies that the use of a thing, is parted with for a limited time and for a special purpose-the right of property remaining in the lender. An estate, therefore, which can never revert, cannot be a loan.

[4] A remainder is the remnant of an estate, limited to arise immediately on the determination of a precedent particular estate; and it always creates a new estate in the remainder-man.

[5.] It has never been decided by this Court, that a reversion in personal property could not exist by parol..

[6.] A reversion is the return of an estate to the grantor and his heirs, after the grant is over; a gratuitous permission, by the owner to a third person, to use the chattel for a specified time, the proprietary interest still continuing in the owner, is not a reversion.

[7.] A loan is the bailment of an article for a certain time, to be used by the borrower without paying for its use.

[8.] The borrower is bound to take good care of the thing borrowed; to use it according to the intention of the lender; to restore it at the proper time, and to restore it in a proper condition.

[9.] The borrower must return the increments or offspring of the thing lent. [10.] A loan being strictly gratuitous, the lender may terminate it whenever he pleases.

[11.] The thing loaned is to be restored to the lender, unless it has been agreed that the restitution shall be to some other person. If the lender be dead, it is to be restored to his personal representative, if known.

[12.] During the loan, nothing passes to the borrower but a mere right of possession and user of the thing during the bailment.

[13.] An action of trespass or trover, will lie in favor of the lender, against

Booth vs. Terrell.

a stranger who has obtained a wrongful possession or has made a wrongful conversion of the thing loaned.

Trover, in Newton Superior Court. Tried before Judge STARKE, March Term, 1854.

This was an action of trover brought by John P. Booth and his wife, Martha Booth, against Richmond Terrell, for the recovery of eight negro slaves, to-wit: Letty and seven children, named in the declaration. Pending the action John P. Booth died, and the same proceeded in the name of the wife.

The defendant pleaded the general issue and the Statute of Limitations.

On the trial, plaintiff proved by two witnesses, that in the year 1820, in Jefferson county, Richard Hodges, the father of Mrs. Booth, loaned Letty, the negro woman sued for, to Richmond Terrell and his wife, for and during the life-time of the latter, with the understanding, that at the death of Mrs. Terrell, the said girl Letty should be returned to his daughter, Martha Hodges, the plaintiff in the action.

Plaintiff also read in evidence the will of Richard Hodges, the 2d item of which read as follows: "I give and bequeath to my daughter, Martha Hodges, eleven negroes, named as follows: Mary and her four children, (naming them and others,) and Letty; the last named in the possession of Mrs. Terrell, and to remain so during Mrs. Terrell's natural life; then to become the property of my daughter, Martha Hodges". The plaintiff also proved the death of Mrs. Terrell, the conversion and value of the negroes and closed.

The defendant introduced testimony, which it is unnecessary to set out here.

The Court charged the Jury, "that a loan of a slave by one person to another, for the life of the person to whom the property was loaned, or for the life of his wife, by a parol agreement that the slave should be returned to the owner or his heirs, at the death of such person, vested an absolute title to the slave, in the person to whom it was loaned. And if the

Booth vs. Terrell.

Jury believed that Richard Hodges was the owner of the negro girl Letty, and that he loaned her to the defendant or his wife upon a paról contract, that she was to be returned to him or his heirs, after the death of defendant's wife, that the defendant thereby acquired an absolute fee simple title to the negro, and the plaintiff could not recover; but the Jury ought to find a verdict for the defendant".

To which charge of the Court, Counsel for plaintiff excepted and has brought up the same for review.

EZZARD & W. W. CLARK, for plaintiff in error.

FLOYD, for defendant in error.

By the Court.-LUMPKIN, J. delivering the opinion.

This is an action of trover by Martha Booth against Richmond Terrell, for eight negroes. The plaintiff relies on the following title, namely: that her father, Richard Hodges, intermarried with Louisa Terrell, the daughter of the defendant; and by said marriage, acquired the title to Letty, who, together with her children, constitute the property in dispute. That Mrs. Hodges died some short time after her intermarriage with plaintiff's father; and that thereupon, Richmond Hodges loaned to his mother-in-law, Mrs. Terrell, wife of the defendant, and at her special request, and by the consent and approval of the defendant, the girl Letty, to be held and enjoyed by her as a loan, during her life-time; and at her death, one of the witnesses swears, the negro was to be returned to plaintiff, who is the daughter of Richard Hodges by a former wife. The other witness testifies to the same contract, in substance, except that he states the girl was to be returned to Richard Hodges or his heirs. Richard Hodges died in 1824; and by his will, bequeathed Letty to his daughter, the plaintiff in this action.

The Court charged the Jury that the loan of a slave by one person to another, for the life of the borrower, by a parol agreement that the slave should be returned to the lender or his

Booth vs. Terrell.

heirs, at the death of the borrower, vested an absolute title to the slave in the borrower.

This charge is excepted to, and the only question to be determined is, did the Court submit the Law of the case correctly, upon the facts proven ?

Counsel for the defendant below and in error, insist that the charge of the Court is sustained by the decision of this Court in Bryan vs. Duncan (11 Ga. R. 67.) And also by the doctrine ruled first by this Court in Kirkpatrick vs. Davidson (2 Kelly's R. 301,) and repeatedly recognized since, that a remainder in slaves cannot be created by parol.

[1.] The point decided in Bryan vs. Duncan was, that in a will, the word lend was sometimes construed to be equivalent to give. And in support of this principle, Hinson and Wife vs. Pickett and Myers, adm'r, vs. Pickett (1 Hill's Ch. R. 35,) was relied on.

[2.] But what was the reason given in both of these cases, for holding that in those wills the word lend meant gift? It was because "the testator evinced a clear intention to part with the entire dominion over the party bequeathed. After his death, the property never could have reverted to his executors. A final disposition of it is made by the testator". Such is the language of this Court in Bryan vs. Duncan.

And in the case in Hill, Judge O'NEALL says: "the term lend, when used in a bequest, is generally equivalent to give. In some special cases, it has its appropriate meaning: as in Baker vs. Baker & Red, decided by this Court in December, 1831. But in such cases, there is something which shows that the testator did not intend the legal estate to pass to the legatee. In the will under consideration, the testator has not manifested any such intention; he uses the word to pass from him the entire property in the chattel; and it is worthy of remark, that he uses the word, (lend) not in relation to the life-estate, which he had created, as he supposed, for his daughter, but also to the absolute estate in remainder, which he also supposed he had created in favor of her children.

[3.] The testator parts with the entire dominion in the prop