#### Moses D. Smith et ux. *v.*James Yeates.

From Hertford.

The act of 1806, requiring gifts of slaves (o be authenticated by writing, cannot be evaded by a fictitious sale; therefore where the donor gave the donee the purchase money, and then sold and delivered the slave, receiving bade the money — this was held to be a gift, and void without a deed.

It seems, that a writing conveying a slave, is void as a bill of salei or a deed of gift, unless attested by a subscribing witness.

It also seems, that the sale and delivery of a slave, is good without a bill of sale, notwithstanding the act of 1821.

Detinue for negro *Tony,*tried before his honor Judge Martin, on the last circuit. On the trial, the Plaintiff offered in evidence the following paper, which was proved and registered :

“ Received *of Mariana Lewis*ten dollars in cash, it being for a cer* *“*tain negro boy *Tuny,*May 18th, 1822.

“ JAMES JOHNSON.”

The wife of *Johnson*proved, that *Mariana Lewis,*who afterwards intermarried with the Plaintiff, resided with her at the house of her husband — that before the date of the instrument, she, had heard *Johnson*express an intention of giving *Tony*to *Mariana.*That on the 18th day of May, 1822, *Johnson*repeated this declaration, but observed, that he could not give the negro, unless some money was paid him by *Mariana,*and said if she would give him ten dollars, *Tony*should be hers. *Mariana*replied that she liad not the money ; he told her that she could borrow it of his wife. The money was accordingly produced by the witness, and handed to *Mariana,*who gave it to *Johnson,*upon which he wrote the instrument and delivered it, the boy being present.

Tiie Defendant claimed title under the will of *Johnson,*of a subsequent date.

His Honor instructed the Jury that to constitute a valid bill of sale, the instrument must contain some words, *303shewing an intention of passing the property. That if the writing was not a good bill of sale, they were to en- • „ ,, ... , ... . quire from the. evidence, whether there had been a sale, and an actual delivery.» If there had been a sale, accompanied with a delivery, the property in the slave passed, notwithstanding the act of 1821, although there was no bill of sale. And that lending, or even giving the money by *Johnson’s*wife, would not invalidate an actual sale accompanied by a delivery.

The Counsel for the Defendant,

moved the Judge to instruct the Jury, that if they thought the ten dollars was not in fact lent or given, by *Johnson*to Mariana, and that he did not mean to give her credit for the amount, but furnished them to her, and received them back, merely colourably, and to make a gift, under the pretence and form of a sale, that the property did not pass.

The Judge declined giving such instructions, and the Jury returned a verdict for the Plaintiff, whereupon the Defendant appealed. '

*Hogg,*for the Defendant,

insisted that the Judge erred in refusing to instruct the Jury, that if they believed the loan of the money was merely a colour, the property did. not pass. He contended that in law', the money of the wife was the money of the husband, and that the transaction was tantamount to a direct gift, and if supported would repeal the act of 1806.

No Counsel appeared for the Plaintiff.

Haw,, Judge.

With respect to the act of 1821, concerning the sale of slaves, accompanied wiih a delivery, the inclination of my mind is with the Judge below'. I also agree with him that the receipt is inoperative as a bill of sale, if for no other reason, because it has no subscribing witness to *it; (Rev. ch.*225,3 for the same reason, it cannot be supported as a deed of gift, *(Rev. ch..*
      *304701). The question then is, was there a sale and delivery of the negro .in dispute.

The receipt is evidence that ten dollars was paid, blit {¡ie circumstances attending the payment are before us* From them it appears, there was in fact, no payment made by the Plaintiff. The money was in reality, paid by *Johnson*to himself, so that although the Jury' found a delivery, the payment did not amount t.o such a consideration, as to make it a *sale*of the slave. If then there was a delivery, but upon no consideration, it was a gift; but that, by the act of 1806, *[Rev. ch.*701,) is void, because not authenticated by deed. A sale, completed by delivery, requires no such evidence. Disguise this case as you will, it is only a gift. If it is considered as a sale, the act, of 1806 may be evaded, by the consideration of a pcpper-corn.

I think there should be a new trial.

Per Curiam. — Judgment reversed.