#### RICHARD BENNETT v. GEORGE FLOWERS.

Where one made a parol gift of slaves to his son-in-law, and the latter, by direction of the former, gave them, by his will, to the grandchildren of the donorif was held, that this did not constitute a gift in writing, within the act of 1806, (Rev. eh. 701,) and that the donor might,, after the death, of his son-in-law, resume the possession of them.

This was an action of detinue for several slaves, tried at Iredell on the last Circuit, before his Honor,- Judge Strange.

It appeared that the slaves in question had been delivered by the plaintiff to Charles Shelton, the defendant’s testator, upon his intermarriage with the plaintiff’s daughter, about the year 1811 or 1812, and that they had remained in the possession of Shelton, and the defendant, his executor, ever since. There was no deed of gift for the slaves produced, but it was proved, on the part of the defendant, that a short time previous to the death of his testator, the plaintiff sent him directions to bequeath the slaves to the children, which the testator had by the plaintiff’s daughter, so that they might not go to other children which the testator had by a second wife. The defendant then produced the will of Shelton, in which all the said negroes, except two, were bequeathed to the children which Shelton had by' the- plaintiff’s daughter, and in which the defendant was appointed' executor. Upon this evidence, under the instructions of his Honor, a verdict was returned in favour of the plaintiff for the two negroes not bequeathed in the will, as above mentioned, and in favour of the defendant as to the residue; whereupon the plaintiff appealed.

*468 D. F. Caldwell, for the plaintiff,

relied upon the act of 1806, (Rev. ch. 701,) “ declaring what gifts of slaves shall be validand contended, that the plaintiff was not estopped by the direction sent to the defendant’s testator, because estoppels apply to matters of fact, but never to those of law. He also contended that if the directions were to be considered as a delegation of power to the testator, they conferred a special power which had not been pursued,, and that, therefore, the plaintiff’s interest in the slaves had not been transferred, and his title to them not affected.

Pearson for the defendant,

contended, that the charge of the Jndge might be supported upon the grounds,' 1st, of authority; 2d, of fraud. 1st. The directions to the testator, authorised him to transfer the slaves by his will. The act of 1806 only requires a writing, where parol was necessary before. A person may authorise another to sign a writing for him;' and this authority may be by parol. See the construction put upon the Statute of Frauds, 29 Charles 2. Coles v. Trecothick, 9 Yes. jun. 234.. Timón v. -, I Sch. & Lef. 22. The will does not indeed convey two of the slaves, but the power is good as- far as it goes. 2d. If the owner of property stands by, and permits another person to sell, he is precluded from claiming, as it would be a fraud for him to do so. Bird v. Benton, 2 Dev. Rep. 180'. Gibbotson v, Roive, 2 Vern. 554. If a father is permitted to make a provision for some of his children out of the property of a person standing by and not objecting, and to provide for his other children out of other property, it would be as great a fraud for the person afterwards to set up a claim, and disappoint a part of the children, as it would be in the case of a sale.

Ruffin, Chief Justice.

— We think the plaintiff has a right to all the slaves, as well as to those two,for which he got a verdict. Shelton- held under a bailment up to his death. The message sent to him, and his will, do not constitute a gift under the- act of 1806, (Rev. ch. 701.) That requires a writing, signed by the donor; and attested by *469at least one witness, proven or acknowledged as convey-anees of land, and registered in the office of the public register, within one year. In no one of these several particulars, does this case come up to the statute. It is argued, that the writing need not literally be signed by the donor’s own hand, but it may be by another, under his authority; and, as a deed is not necessary to a gift, that the authority may be by parol, as under the act of 1819, (Rev. eh. 1016). It need not be questioned, that a gift may be made through the instrumentality of an attorney ; though such a case is so little likely to occur, as to render it highly improbable that it was in the contemplation of the legislature. But we deem it clear, that the attorney cannot be constituted by viva voce declaration merely. There must be an' act in writing from the donor himself. The statute is positive and precise in its language. The English statute of frauds and our act of 1819, both, have the words “ or by some person by him thereunto lawfully authorisedand it is by force of those words, it has been held, that the authority need not be in writing, if, at common law, an authority to do the same act would be sufficient, when delegated by word only. Those statutes require the contract to be in writing; but, at the same time, affirm one made by an agent and signed by the agent, without requiring the agency to be established by writing. The sole object was to put the terms of the contract beyond dispute. The act of 1806 has no such clause; but requires a writing “ signed by the donor” himself. The object is to protect the donor and his creditors from fraud or perjury, as to the question, whether the act is his, as well as in respect of the particular terms of the gift. His signature, either to the instrument, importing, in itself, to be a gift, or to one under which the immediate gift is made, is, therefore, indispensable. This is a broad principle, upon which the case is for the plaintiff. But if the authority to Shelton was valid, it has not been properly executed. An authority to give, must be to give in the name of the donor; and the donee is in, under the donor and not under the agent. A gift or a legacy from the agent is entirely a different thing, in form and substance. It must be taken subject to the legal title - and *470assent of the executor, and to the claims of creditors; whereby the gift itself might be defeated.

But it was argued by the counsel for the defendant, that the express consent of the plaintiff to this disposition, made it a fraud in him to defeat it; as in the case of an owner standing by at the sale of his estate, and wilfully concealing his title. On whom is it a fraud 1 It can only be, on those to whom it occasions a loss. Neither the testator nor his executor, the defendant, is in that situation. Neither of them parted with any thing for these slaves, nor has been prevented from receiving all that would otherwise come to him, had the plaintiff resumed the possession of the slaves in the lifetime of Shelton. In a legal sense, therefore, there has been no fraud on the defendant, either in his individual or representative capacity; none, that does not exist in every case of a parol gift, subsequently retracted. Row v. Potts, 2 Vern. 239.

It is said, however, that the testator might have made a different division of his own property, amongst his two sets of children, had he not considered the provision made, at the instance of the plaintiff, for some of them, in these slaves valid. The case is silent as to his other property, and as to his intentions with respect to it: and we cannot decide upon a supposed and possible state of facts. But if the supposition were true, it could not affect the legal right, as between these parties. The utmost that could follow, would be to give the beneficial donees of the testator, the right to call on the plaintiff not to disappoint this provision, or to make good another which their father intended to make for them, and would have made, but for his interference ; as in the case cited at the bar, of the heir at law, who prevented a testator from inserting a legacy into his will, by promising to pay it, without any alteration of the will. Whether that principle has any application to a case of this sort, it is unnecessary to determine. For if it has, the record states no facts to raise the question; and if it did, it is not a question which concerns the title in this court. The donee cannot claim the legal property in the thing given, but only compensation out of it, for *471that which would have been given. The judgment must be reversed, and a new trial granted.

Per Curiam. Judgment reversed.