#### JOSEPH J. ALSTON v. CHARLES HAMLIN.

The act of 1806 (Rev. c. 701) having been enacted on purpose to exclude all parol evidence of a gift of slaves, necessarily avoids every .parol estoppel that might be set up to defeat its operation.

Where the owner of slaves made a parol gift of them to his son-in-law, who bequeathed them to his children, and died leaving his father-in-law executor of his will and guardian of his children, it was held, that the taking possession of the slaves and hiring them out, first as executor and then as guardian, was not a possession adverse to' the title of the father-in-law; and that the statute of limitations did not begin to run against him until he had permitted a division of the slaves between his grandchildren, and delivered them over.

If arbitrators to whom a question is referred, decline rendering a judgment, and only declare an opinion upon it; or if mistaking the subject submitted, they adjudicate not on the controversy of title between the parties, but on the conflicting claims between one of the parties and a third person, the parties will not be bound thereby; because in the one case, there is no award; and in the other it is not on the matter submitted.

A letter written by the plaintiff, with the concurrence of the defendant, to two persons, calling upon them to say how he the plaintiff ought to- dispose of certain slaves, which he had given since 1806, by parol, to his deceased daughter and son-in-law, between his granddaughter and the defendant, who had married another granddaughter, that had died, is not a submission to arbitration of the plaintiff’s title to the slaves in question; and no expression of opinion of the persons called on, in what form soever made, can be obligatory upon the plaintiff’s title to such slaves.

The acceptance of a legacy uuder a will, will not at law, prevent the legatee from setting up any claim which he may have to property bequeathed to another person in the same will.

The Superior Court may in its discretion permit the plaintiff to amend his writ after a verdict in his favour, and the Supreme Court has no right to supervise the exercise of such discretion.

This was an action of detinue for four slaves by the names of Viney, Barney, Areny, and Dorcas. Pleas non detinet, statute of limitations, arbitrament and award. Upon the issues joined on these pleas, the case was tried at Chatham, on the last Spring Circuit, before his Honor Judge Donnell, when the following facts appeared in evidence.

In the year 1814, John B. Mebane, intermarried with a daughter of the plaintiff, upon which the plaintiff sent to him several slaves, among whom was the woman *116Yiney now sued for, and another woman who bore the other slaves in question while in the possession of the said Mebane. There was no written transfer of the said slaves to the son-in-law, but they continued in his possession until his death in 1820, when besides the slaves sent him by the plaintiff, he had some others which had been put into his possession by his own father, and one which he had purchased himself, amounting in the whole, to not more than thirty-two. In July of that year the said John B. Mebane made his will, in which were contained the following clauses:—

“ I give and bequeath to my two daughters, Cornelia and Martha, and their heirs forever, the following property, to be equally divided between them, whenever either of them shall marry, or come to lawful age, viz.: all my land, with its appurtenances, the whole of my negroes, with their increase until that time; if I mistake not at this time, thirty-two in number.” “ Item, I give and bequeath to my father, John Mebane, and to my father-in-law, Joseph John Alston, each, the rifle gun which I had from them.” Of this will the testator appointed his father and the plaintiff executors, who proved the same at August Term, 1820, of Chatham County Court, and immediately took posséssion of all the slaves above mentioned, and hired them out until the year 1827, advertising them as belonging to the estate of their testator, and taking the notes for the hire, payable to themselves as executors. The notes for the hire were also returned in the inventory filed by the executors as part of the estate of their testator. From 1827 to the year 1832, the plaintiff and John Mebane continued still to hire out the said slaves, not as executors, but as guardians to their testator’s children. During the life time of the testator, he had frequently recognised the right of the plaintiff to the slaves sent to him by the plaintiff, and on his death bed had declared to the plaintiff, that he had given the said slaves to his children, but he knew he had no title to them; upon which thé plaintiff replied that “ ,your will is my will.” It appeared that the rifle gun bequeathed to the plaintiff, *117had been received by him, and appropriated to his own use.

The testator, John B. Mebane, survived his wife, the plaintiff’s daughter, and left only two children, to wit, the daughters mentioned in his will, with one of whom, (Cornelia) the defendant intermarried in the year 1831. In January 1832, three persons were selected by the guardians of the children and the defendant, to make a division of the slaves of which John B. Mebane died possessed, together with their increase. A division was accordingly made, and the plaintiff-, one of the guardians, being present'thereat, delivered to the defendant in right of his wife, one moiety of the said slaves, including those in dispute, as his property, under the will; and the defendant accepted them, took possession of them, and retained them, claiming them as his own. In July 1832, £he defendant’s wife died without issue, and in October, 1833, the plaintiff" demanded the slaves Yiney, Barney, Areny, and Dorcas, of the defendant, and upon his refusing to deliver them, brought this suit in 1834.

In relation to the question of arbitration and award, it appeared' from the testimony of several witnesses who deposed to conversations between the parties, and from several letters written from one to the other, that before the suit was brought, there was a proposition between the plaintiff and defendant, to refer the controversy relative to the said slaves to arbitrators. After the conversation referred to by the witnesses, a letter (marked E,) was addressed by the plaintiff to Joseph Ramsay and Green Womack, and was sent by the plaintiff’s son, who was to attend on behalf of the plaintiff, and who was accompanied by the defendant. A witness who was present when this letter was written, stated that he understood from the conversation between the plaintiff and defendant that the matter was submitted to Ramsay and Womack on the terms stated in the letter, which was in these words:—

“ Jan’y 15th, 1833. Messrs. Jos. Ramsay and Green Womack. An occurrence has taken place in my. family •which is a delicate one with me, so much so, that I feel *118unwilling to decide on it without having the opinion of some of my acquaintances on' the subject. I have, therefore, in conjunction with Mr. Hamlin,” (the defendant) “ selected you two gentlemen as proper persons, and should you not agree, to make choice of some other person. The circumstance is this — Mr. Charles Hamlin, who married Cornelia Mebane, seems to think that the property of his deceased wife ought to be his. And as Í have never made a conveyance to any person, the painful duty devolves on me to say how it shall be disposed of; whether to Mr. Hamlin, or to Martha Mebane, the only surviving child of John B. Mebane, deceased; that being the case, I hope you will be so obliging, for my satisfaction, to say in what manner you think the property would be rightly and properly disposed of. Your compliance, gentlemen, I do assure you, would greatly relieve my mind, and ever lay me under obligations to you. Mr. Hamlin has received one half of the hire of the negroes from the death of John B. Mebane to the present time.

Yours, &c..

Jos. Jno. Alston.”

Mr. Ramsay was called as a witness, and stated that he acted entirely upon the contents of this letter, not knowing of any other authority, or terms of submission to him and Mr. Womack — that they having called in a third person, had accordingly considered the matter understood to be in controversy between the parties, as stated in the said letter, marked E, and decided that the negroes should go to the defendant' — that this decision was addressed to the plaintiff in the form of a letter signed by him, Ramsey, and Womack, and sent to the plaintiff by his son who had brought the letter E ; that no copy or duplicate was made of the letter containing the said decision ; that he considered himself as acting as an arbitrator; and that he decided altogether upon the contents of the letter E; and that he understood it was a controversy between the defendant and his wife’s sister. He stated further that they did not consider themselves as deciding on the plaintiff’s right, not supposing that matter referred to *119them, and therefore not considering it. The letter containing the decision was not produced on the trial, but its contents were proved by the witness Ramsey. Mr. Womack was also called, and testified substantially the same with Mr. Ramsey ; stating further, however, that when the letter containing the decision was handed to the plaintiff’s son and the defendant, he told them that he did not consider the decision final, but merely as an opinion, as requested in the plaintiff’s letter to Ramsey and himself.

Upon these facts the defendant’s counsel contended, 1st. That the possession of the slaves in question by John B. Mebane, till his death; his bequest of them to his children; the qualification of the plaintiff as one of the executors of the will; the receiving by the plaintiff of the rifle bequeathed to him by the will; the hiring out of the slaves from the death of John B. Mebane till the end.of the year 1831, first as one of the executors of the said Mebrane, and afterwards as guardian to -his children; inventorying the hire of the said slaves as part of the testator’s estate, and accounting therefor to his children ; the assenting to the division of the said slaves after the marriage of the defendant with one of the children, and delivering over the defendant’s share to him, estopped the plaintiff from claiming the said slaves from the defendant.

2dly. That the plaintiff was barred by the statute of limitations, on account of the length of time the slaves were hired out by the plaintiff and John Mebane, as executors of John B. Mebane, and as guardians to his children.

3dly. That the plaintiff, having received the legacy of the rifle, and treated the slave bequeathed to his grandchildren as their property, had thereby assented to the legacy to them of the said-slaves; and had elected to take the legacy given him in the will in lieu of his property in the slaves.

4thly. That the plaintiff’s right to the said slaves, was barred by the award of Messrs. Ramsey and Womack, in favour of the defendant, upon the submission of the *120matter in controversy to them. Upon this point the counsel for the defendant presented two views in their arguments to the jury ; contending in the first place, that from the whole evidence in the case, and more particularly from the letters and conversations between the parties in reference to a submission of the matters in controversy to arbitration, the jury would be well warranted in finding that the parties had agreed to refer the matter to arbitrators, to make a final award between them; that it was not necessary that the reference should be in writing; that in pursuance of the agreement, Ramsey and Womack were appointed such arbitrators; that the letter marked E, of Alston to the arbitrators, was merely a statement of his views of his own right, and could not be considered as containing the terms of the submission, being signed only by Alston, and in the form of a letter to the persons selected as arbitrators; that in pursuance and by authority of the agreement and submission made between the parties, the said arbitrators, Ramsey and Womack, had made an ■award in favour of the defendant, which was in law final and conclusive of the right of property in the slaves; and that although Ramsey and Womack were not informed of the agreement of submission, but supposed themselves acting merely upon the letter addressed to them by the plaintiff, and although they supposed their decision not to be final or conclusive of the plaintiff’s rights, yet, that in law, it had become so, being founded on an agreement between the parties to refer the matter in controversy to their decision, and that decision having been made by them. The other view presented upon this point by the counsel, was, that if the letter of the plaintiff to Ramsey and Womack, contained the terms of the submission as agreed upon by the parties, the decision of those gentlemen in pursuance of such submission in favour of the defendant’s claim to the slaves, was conclusive on the plaintiff, and supported the plea of arbitrament and award,, and entitled the defendant to a verdict thereupon.

His Honor upon the three first points charged the jury adversely to the position contended for on behalf of the defendant. On the fourth, he instructed them that if, *121From the evidence in the cause, they could collect that , r , • such a contract or agreément to reter the matter in controversy to arbitrators had been made between the parties, as that contended for by the defendant’s counsel in argument, and that in pursuance of such contract of submission, arbitrators were appointed, and awarded or decided the matter in favour of the defendant, it was in law, a bar to the plaitiff’s right of property in the slaves, and entitled the defendant to a verdict; and this, although the contract of submission was not reduced to writing: and that if Ramsey and Womack were the persons selected by the parties, in pursuance of such contract of submission, their decision in favour of the defendant was equally conclusive upon the plaintiff if they acted under the authority of, or in conformity to, such contract of submission, although they did not know at the time, the precise terms of the agreement; and that their views as to the legal eifect of their decision, though they may not have thought it final, would yet not render it less conclusive upon the plaintiff, in point of law. But on the second view presented by the defendant’s counsel in argument, if the jury should be unable to find from the evidence in the case, any other agreement of submission or reference by the plaintiff, than that contained in his letter to Ramsey and Womack, before referred to, and if they found that said letter did contain the terms of said submission between the parties, then the decision of those gentlemen, in pursuance of such reference, did not conclude the plaintiff, or affect his right or title to the slaves in controversy, if he should have succeeded in making out a title in himself.

As to two of the slaves in question, another ground of defence was taken on the trial, to wit, that the said slaves were named in the writ, Vicy and Amy, instead of Viny and Areny, and it was insisted, that such was the correct reading of the writ, and that it was the duty of the court to inspect the writ, and instruct the jury, that the slaves, Viny and Areny, not being sued for, no verdict could be given for them. For the plaintiff it was contended, that the names in the writ were meant for Viny and Areny, *122and that such was its true reading. It not appearing that the said slaves were known by any other names than Yiny and Areny, his Honor directed the jury to inspect the writ for themselves, and charged them, that unless the names therein contained, were the names Yiny and Areny, the plaintiff would not be entitled to a verdict for those two slaves, although he might be entitled to a verdict for the others mentioned in his writ. A verdict was rendered for the plaintiff for allt he four slaves, Yiny, Barney, Areny and Dorcas. The defendant’s counsel moved for a new trial; first, because of misdirection by the Court, in the charge to the jury; and secondly, because the objection made to the writ ought to have been decided by the Court, and not referred to the jury. His Honor gave leave to the plaintiff to amend the writ, by writing the names Viny and Areny, plainly and legibly, and then overruled the defendant’s motion for a new trial, and rendered a judgment ; from which the defendant appealed.

W. H. Haywood, Badger and Iredell for the defendant.

'Waddell and Devereux for the plaintiff.

Gaston, Judge.

We see no error in this case, on which to reverse the judgment. The estoppel, which was attempted to be set up, does not vary from, that which was ineffectually urged in the former suit between the same parties. Hamlin v. Alston, Ante, Vol. I. p. 479. We then held, and we think held properly, that the act of 1806, (Rev. c. 701), having been enacted on purpose to exclude all -parol evidence of a gift of slaves, necessarily avoided every parol estoppel that might be set up to defeat its operation. The statute of limitations could not protect the defendant, for his adverse possession did not commence before the slaves were delivered over to him, at the end of the year 1831, and this action was instituted in April, 1834. To so much of the Judge’s instruction relative to the alleged award, as held — that if the jury could collect from the evidence, that the plaintiff and defendant had agreed to submit the matter now in controversy, to the decision of arbitrators, aftd the arbitrators had decided in favour of the defendant, such a decision was a bar to this *123action, although the arbitrators did not know the terms of the submission, nor regard their decision as final — no exception could be taken by the defendant, for it is substantially such as he prayed for, and at least as favourable as he could have required. It is unnecessary for us, therefore, to examine into its correctness. We feel ourselves, however, bound to say, waiving altogether the inquiry, whether a parol submission could conclude the question of title, that if the instruction can be understood as holding, that if this question was submitted to the decision of the arbitrators, and the persons so appointed to decide, declined to render a judgment, but only declared an opinion upon it; or if, mistaking the subject submitted, they adjudicated, not on the controversy of title between these parties, but on the conflicting claims of the defendant and his deceased wife’s sister, so understood, we apprehend it would be erroneous. In the one case, there was no award; in the other, the award was not on the matter submitted. As to the residue of the instruction in relation to the award, we entertain no doubt of its correctness. If the letter E, addressed to Messrs. Womack and Ramsey, contains the terms of the submission, it is indisputable, that the question of title between the plaintiff and defendant was not submitted to adjudication. According to that letter, these gentlemen were called on as disinterested friends, to give their opinion to the plaintiff, on a matter which he conceived himself competent to decide, but which, from considerations of delicacy, he was unwilling, of himself, to determine how he ought to execute the painful duty which had devolved on him, of disposing of the negroes which he had given to his daughter, the wife of John B. Mebane, but which he had never conveyed, and which therefore remained, in law, Ms property, whether wholly in favour of the surviving child, or partly in favour of the husband of the deceased child of such son-in-law. No expression of opinion, by these gentlemen, in what form soever made, could be obligatory upon this submission.

If the defendant can avail himself of the implied election which was insisted on at the trial, it must be before a tribunal, competent to decide upon the equity of such eleo*124tion. The principle of election, as here asserted, is a principle of equity, proceeding on the doctrine of an implied condition, of which a court of equity, in a proper case, will enforce the performance, by compelling the legatee, if he elects to take the bequest, to make compensation out of his own property to the disappointed legatees. In the will, there is no condition expressed, that if the plaintiff take the rifle, he shall relinquish these negroes to the testator’s children. Without stopping to inquire what would have been the effect of such a condition, had it been expressed, it is, in this case, clear, that the law has not taken away these negroes from the plaintiff, because he accepted of this legacy.

In regard to all that is stated in the case, as to the supposed mistake in the writ, it is enough to say, that the court had a discretion to amend the writ, and that we have no right to supervise the exercise of that discretion.

Per Curiam. > Judgment affirmed.