#### Samuel Skinner, executor of the last will of Evan Skinner, dec’d. v. John Skinner.

From, Washington.

Construction of the 3d section of the act of 1806, relative to gifts of slaves..

The words “ Every person claiming title to any slave or slaves, by virtue “ of any parol gift heretofore made, shall commence and prosecute his “ or her suit for the same, within three years from the passing of this “ act, otherwise the same shall be forever barred,” mean that the remedy shall be barred, and not the right.

Detinue for sundry negro slaves. Pleas — non detinct, and statute of limitations. Replication — act of 1806, c. • — .

In the year 1794, Evan Skinner, the testator, made a parol gift of a negro girl named Bet to his son, the Defendant. Bet had issue after the year 1794, Jim, Agg, March, Candis, Wilcox, John, Clarissa and Frank ; and she and her issue remained in possession of the testator until his death, lie acknowledging that they were the property of the Defendant. The negroes came to the possession of the Plaintiff, who was appointed executor of the last will of *536Evan Skinner, and ho as executor, hired to the Defendant the negroes Bet, Jim, John, Clarissa and Frank. Before the term of hire was expired, the Defendant got into his possession the other negroes, Agg, March, Candis and Wilcox, and the tern! of hire having expired, he refused to return to the Plaintiff any of the negroes, setting up a claim to them under the parol gift made in 1794. The Plaintiff brought an action of detinue to recover the ne-groes. The Defendant pleaded, “ the, general issue, and “ statute of limitations.” The Plaintiff replied, “ the act “ of 1806, ch. .”

Upon the. trial, the presiding Judge charged the Jury, that as to the negroes Bet, Jim, John, Clarissa and Frank, the Defendant was estopped to deny the Plaintiff’s title, he having conic into possession of them by hiring them from the Plaintiff; that therefore a verdict must be given for the Plaintiff, as to them. That, as to the other ne-groes, the gift from Evan Skinner to the Defendant being valid,, the Plaintiff was no.t entitled to recover. That the act of 1806 barred the action and not the title; and, as the Defendant had obtained the peaceable possession of those negroes, and without any contract, with the Plaintiff, Ms possession ought not to be disturbed in this suit. The Jury gave a verdict as directed by the Court, and the Plaintiff having obtained a rule for a new trial, and the rule being discharged, the Plaintiff appealed to this Court.

Henderson, Judge.'

I have laboured in vain to discover a substantial difference in the wording of the act of 1806, respecting the, limitation of time within which actions shall be brought on parol gifts of slaves theretofore made, and our common act of limitation of actions ; and the construction uniformly put on the. common act of limitations, being that it affects the remedy only, and not the right, or that possession aids only in repelling a claim, and not in shewing a right, I am constrained to put the same construction on the act of 1806. But I well remem-*537■her, when on the Circuit Bench at Person Superior Court, ' I decided that the act of 1806 barred the right, and not the remedy only. 1 then thought the construction right; but on a full examination, I am induced to think I was wrong. ■ I think the construction which Í feel constrained to put upon the act, fraught with evil consequences j but I cannot make the law. These evil consequences, in all those cases where an action of replevin will lie, may be avoided by bringing that actios. In it the Defendant or avowant becomes the actor, and the Plaintiff may plead the statute of limitations to his claim. The rule for a new trial must be discharged, and the judgment of the Superior Court affirmed.

Hall, Judge.

It is not easy to conceive for what purpose the third section of the act of 1806, cb. , entitled “ An act declaring what gifts of slaves shall bo valid, and “ for the prevention of frauds,” was inserted. I think the act of limitations, passed in 1715, answers the same purpose. The act was made in reference to a donee out of possession. It declares “ that any person claiming title “ to any slave by virtue of any parol gift heretofore made, “ shall commence or prosecute his suit for the same within “ three years from the passing of that act, otherwise the “ same shall be forever barred.” If the question he asked, for what shall he prosecute his suit, the answer is, for the slave to which he claims title. If the suit be not prosecuted within three years, what is to be barred ? The answer is, the suit, which shall be brought after three years,

If it be said that the title si tall be barred, it must also be said that the suit was brought for the title of the negro, and not for the negro. This construction will not suit the phraseology of the act. The Legislature might have intended to take away the right as well as the remedy $ hut if they have not so expressed themselves, we caiinot do it for them. If this act has no other effect than the act of limitations, passed in the year 1715, we may reason a*538bly suppose that the framers of it intended something else 5 but on that account we are not at liberty to guess at that intention, and carry it into effect, because it is our duty to judge of laws that are made, not to legislate. If there had been no act of limitations before the one in question, I think there could be no difficulty in giving a construction to it; and I think the same construction ought to be given to it, notwithstanding the existence of that act. It does not appear to me that there are any words in the act of 180G, that contemplate a case like the one under consideration. We surely cannot collect from the act, that a longer/possession than three years should work an indefeasible title in the possessor, but only that it should bar the remedy : and the remark may go for as much as it is worth, that the word bar is technically applied to actions and suits. The rule for a new trial must be discharged.

Tayeor, Chief-Justice, concurred.