#### JAMES H. RATLIFF vs. ROBERT S. HUNTLY.

Where the plaintiff offers to prove a contract by parol evidence, and it is objected that the contract was reduced to writing, the witness who is introduced to shew that there was a written contract must state the contents oi' the instrument to the Court, that the Cmurt may judge whether it relates to the same contract offered to be proved by the plaintiff. It is error to leave this fact to be ascertained by the jury.

Where a part of the charge of the Court to the jury related to a matter totally immaterial, and benefitted neither the plaintiff nor the defendant, this is no ground for a new trial.

In an action of trespass for talcing a slave out of the immediate possession of the plaintiff, evidence of abusive language to the plaintiff, at the time of the trespass, is admissable to shew quo animo the act was done, and to enhance the damages.

Appeal from the Superior Court of Law of Anson County, at the special Term in May 1845, his Honor Judge Battle presiding.

This is an action of trespass brought to recover damages of the defendant for beating the plaintiff’s slave Mary. Plea, not guilty. It was insisted by the defendant, that the slave then belonged to him, and that he had a right to chastise her. Immediately after he had beaten the slave, in the plaintiff’s field, where she was then at work, and before he left the field, he cursed and abused the plaintiff, (who was absent) and threat*546ened to shoot or otherwise injure him. This testimony, as to ^ie abuse of the plaintiff, was objected to by the defendant; but it was admitted by the Court, to shew the quo animo the tregpags was committed. The slave had before belonged to the defendant. The plaintiff paid the defendant, (said the witness Gulledge) three or four hundred dollars, and the defendant agreed to deliver and did deliver the said slave Mary, to the plaintiff. The witness was then asked, whether the contract was put in writing. He said, that Col. White prepared a writing relative to a difficulty then existing between the defendant and his wife, who was the sister of the plaintiff; but he did not know whether it related to the dealings between the plaintiff and defendant about the said slave. The defendant objected to the admissibility of parol evidence, to prove the sale of said slave, as the contract was proved, (as he said) to be in writing. The Court overruled the objection, as it did not appear that the contract spoken of by Gulledge, had been put in writing by "White. The defendant then called White, who said that he did write a contract between the plaintiff and defendant, in order to settle the difficulty between the latter and his wife ; and he, the witness, was proceeding to state its contents, when the plaintiff objected, and contended that the defendant should produce the writing if there was any, relating to this contract. The Judge said, that he could not ascertain whether the contract, spoken of by White, was the same as that spoken of by Gulledge, unless it was produced ; but that he would instruct the Jury, that if they believed it to be the same, then the parol contract proven by Gullege, should be excluded from their consideration. “To which course of the Judge,” the case states, “the defendant’s counsel assented.''1 The defendant then proved, that he and his wife became reconciled, and that she went to live with him again ; and that he claimed the said slave. The Judge charged the Jury, that if Gulludge spoke of a different contract relative to the slave, from that mentioned by White, then the plaintiff had a title and a right to recover; but, if it was the same contract, which had been reduced to writing by White *547then the parol evidence of it, which has been given by Gul-ludge, must be by them excluded, and the plaintiff could not recover, because he had not produced the writing, containing the contract, which was the better evidence. The Judge further told the Jury, that if they found for the plaintiff, that he was the owner or bailee, and the defendant had no right to determine it at the time, they might give smart money by way of damages, if the trespass was committed in a wanton manner, and from a spirit of malice towards the plaintiff. The Jury found a verdict for the plaintiff — damages $> 100. The defendant moved for a new trial for misdirection as to the law ; which motion was overruled, judgment rendered, and the defendant appealed.

Strange for the plaintiff.

Winston for the defendant.

Daniel, J.

Firsts the Judge erred, when he stopped Col. White in his relating the contents of the writing, which he had drawn up; and in deciding that he would submit it to the Jury to say, whether the contract spoken of by Gulledge, was the same as that contained in the writing spoken of by White. It was, we think, a question for the Judge to determine, whether they were the same. And he should have let White inform him, (not the Jury,) of the contents of the writing, that he might see whether the contract relative to the said slave was in it. If he had, from such testimony, been satisfied that the contract had been reduced to writing, he should have insisted on the plaintiff’s suffering a nonsuit; and, if he refused, then he should have charged the Jury to give a verdict against him; as he had not produced the best evidence of his case that was in his power. The admissibility of evidence is a question of law, and to be decided by the Court. But the defendant’s counsel consented to the erroneous course of the Court, and cannot now be permitted to take advantage of it, as consent takes away error.

Secondly, that part of the charge of his Honor, relative to a bailment of the slave to the plaintiff, was immaterial to the *548decision of the eausej as there was no evidence in the case on that point. And as it did neither benefit to the plaintiff nor hurt to the defendant, it is not a ground for a new trial.

Thirdly, the evidence given by the plaintiff, that the defendant immediately after the trespass, and in the same field where he did the act, made use of abusive language relative to the plaintiff, we think was admissible to shew the quo animo the defendant did the trespass; and it was properly left by the Court to the Jury, whether they would or would not give smart money in assessing the damages.

Per Curiam, Judgment affirmed.