Dec. 1829.

#### Martin Palmer v. John A. Faucett,

From Orange.

The 7th section of the act of 1784, (Rev. ch. 225) requiring sales and gifts of slaves to bo in writing, attested by a witness and registered, was passed for the protection of creditors and purchasers only.— Under it, a gift or a sale is good between the parties without a deed properly attested, and if by deed thus attested, without its being registered.

But the act of 1806, (Rev. ch. 701,) avoiding gifts of slaves unless in writing, attested by a subscribing witness and registered, is a statute of frauds made for the protection of donors, and under it, a deed is inoperative against the donor, unless duly attested and registered.

The act of 1820, (Rev. ch. 1055) for quieting the titles of persons in possession of slaves, does not pass the title to a donee who has been in possession three years under a gift void by the act of 180Ó.

Detinue foe a slave, tried on the last Spring Circuit, before his honor Judge Martin.

After the Plaintiff had made out his case, the Defendant proved, that upon his marriage with a daughter of the Plaintiff, in the year 1821, the slave in question had been put into his possession by the Plaintiff — that this possession continued until the year 1825, when the Plaintiff received the slave again, and hired him out for a part of the years 1825 and 1826. After which the slave was again permitted to go into the possession of the Defendant.

There was proof that the Plaintiff sent to the Defendant a writing respecting the negro, but whether it was a letter or a bill of sale, the witness did not know. There was also proof of the loss of this instrument, and it never had been registered.

The Defendant relied upon his possession for three years under the act of 1820, (Rev. ch. 1055) as a validation of his title, supposing it to be defective. His Honor instructed the Jury, that as the act of 1806 avoided all gifts of slaves unless in writing, signed by the donor *241and attested by a witness, so a possession of a slave for three years, held under a gift not evidenced as that act required, would not confer a title under the act of 1820; that every possession of property must either be consistent with, or in Opposition to the title. Where the possession is acquired with the consent of the owner, it constituted the contract of bailment — where the parties intended to convey the titles, but made use of a mode inoperative and void, the ownership remained unchanged, and the possession being still taken by the consent of the owners, forms a bailment, and that supposing such contract to have been constituted, when the negro was first received by the Defendant, it must have been ended, and three years possession have occurred since its dissolution, to enable the Defendant to acquire a valid title under the act of 1820.

Upon the other point, his Honor charged the Jury that the Plaintiff having shown a title in himself, it was incumbent on the Defendant to show that it was divested; and as the latter claimed under a gift since the act of 1806, he ought to satisfy them that the gift was in writing, signed by the donor and attested by a witness subscribing it — and further, that in law a circumstance not made to appear, was taken as not existing.

A verdict was returned for the Plaintiff, and the De» fendant appealed.

The case was argued by Nash and Winston, for the Plaintiff, and by Badger, for the Defendant.

The Re-

porter regrets that he has not been furnished with a note of the argument.

Hall, Judge.

The act of 1784, (Rev. ch. £25, sec. 7,) from its preamble and the adjudications upon it, was passed principally for the protection of creditors and purchasers. The preamble is as follows: “Whereas many persons have been injured by secret deeds of gift to children and others, and for want of formal bills of *242sale for slaves, and a law for perpetuating such gifts ami sales.” It then provides for the registration of such deeds, and that they shall be attested by one, credible wituess.at least. Tiie construction put upon the act, that it was made for the benefit of creditors and purchasers, is evident from the cases of Knight v. Thomas, (1 Hay. 289)—Cutler v. Spiller, (2 Hay. 61,)—Lynch v. Ashe, (1 Hawks 338,)—Rhodes v. Holmes, (2 Hawks 193) Bateman v. Bateman. (1 Car. Law Repos. 85.)

Consistently with this construction of the act, the act of 1792, (Rev. eft. 363,) declares that all sales of slaves bona jide made, and accompanied with actual delivery, shall be good without any bill of sale. According to the cases before cited, it was not necessary, as between the parties, that there should be a bill of sale, or if there was one, that it should be attested by a subscribing witness j or if so attested, that it should be registered.

But the act of 1806, (Rev. ch. 701,) “ declaring what gifts of slaves shall be valid,” was made, as it emphatically declares, “ for the prevention of frauds,” and may be fitly called a statute of frauds. It declares (hat no gift of slaves, hereafter to be made, shall be good or available in law or in equity, unless the same he made in writing, signed by the donor, attested by at least one subscribing witness, and shall be proved or acknowledged as conveyances of land, and registered within one year. This act was made not only for the benefit of creditors and purchasers, but also for that of donors.

It must be well remembered, what a fruitful source of litigation parol gifts and pretended parol gifts were, before the passage of this act; and that too in many cases where creditors and purchasers were not concerned. To remedy that mischief the law was passed, for the benefit of donors. And in proportion as any of the requisites of the act are dispensed with, so in proportion will the mischief be left without remedy.

*243In the present case, between the donor and donee,, if there had been a deed of gift, and that deed had been registered, although the deed were lost, there would be no difficulty in procuring a copy of it. If deeds of gift have been bona fide executed, injury is done to no one by registering them. Mischief may be done by concealing them until after the death of the donors.

But the act is positive, that such deeds shall be registered as conveyances of land. This clears the question of doubt | because nothing passes by conveyances of land, or shall be good and available in law, unless the same shall be acknowledged or proved, and registered.

I am therefore of opinion, after full reflection, that the instructions given by the Judge to the Jury on the trial in the Court below, were correct. It is true, that what I said in Justice v. Cobbs, (Ante 1 vol. 469,) on the question of adverse possession, was extrajudicial. The question involved in the decision of that case, did not require it. That was the case of a possession, where there was no parol gift proved. But it is a warning lesson, not to speculate on supposed cases.

Per Curiam. — -Let the rule for a new. trial be discharged, and tiie judgment of the Court below affirmed-