#### JOHN and JOEL HILL, Executors of ROBERT HILL v. MATTHEW M. HUGHES.

The gift of a slave by parol, since the act of1806, *(Rev. ch.*701,) operates as a bailment; and no length of possession under such gift, will raise a presumption of title in the donee.

The possession óf a son-in-law under a parol gift from his wife’s father, is not evidence of fraud in the donor, as to the creditors of the son-in-law, unless there be a conveyance of the slave by the donee, for the benefit of his creditors, which is known to the donor, and acquiesced in by him.

If the donee of a slave, under a parol gift, convey him in trust to secure creditors, but by a stipulation in the deed, still retain possession, such possession is not the possession of the alienee, so as to operate as a bar to the donor under the statute of limitations.

Detinue for a negro slave named Harmon, tried at Stokes, on the last Circuit, before his Honor Judge Nor-wood.

The case, as it appeared in evidence upon the trial, was, that the slave Harmon was the property of the plaintiff’s testator in 1810 or 1811, when one William G. Haynes married his daughter; that upon, or soon after the marriage, the slave in question was put into the possession of Haynes, by his father-in-law, and so continued until the death of Haynes, in 1834; that in 1823, Haynes, who had treated the slave all along as his own, conveyed him by a deed to the defendant in trust, to secure a debt which he then owed, and which he continued to owe until his death, and which was still subsisting at the time when this suit was brought; but by a stipulation in the said deed of trust, *337the possession of the slave still continued with Haynes; that Robert Hill, the plaintiff’s testator, died in August, 1834, and soon after, the plaintiffs as his executors, brought this action to recover said slave of the defendant, who, after the death of Haynes in the fall of 1834, had taken him into possession, for the purpose of closing the trust.

For the defendant it was contended: 1st, That from the great length of time that Haynes had had possession of the slave, all the writings necessary to prove the gift ought to be presumed.

2ndly, That'the plaintiff’s testator, by permitting Haynes to hold the slave out to the world as his own, and thereby to get credit, upon the faith that the title was in him, was guilty of such a fraud, as to prevent him or his executors from setting up their title, to the prejudice of such creditors.

3rdly, That as the deed of trust stipulated that Haynes should remain in possession of the slave, the possession of Haynes, from the making of the trust in 1823, up to his death in 1834, was the possession of the defendant, the trustee; and that therefore the statute of limitations was a bar to the plaintiff’s recovery.

His Honor instructed the jury, that since the act of 1806, *(Rev. ch.*701,) a parol gift of a slave operated as a bailment only; that in cases of bailment, the statute of limitations did not run until the termination of that contract ; that the fact that Haynes claimed, and used the slave as his own, would not terminate the bailment, nor would the conveyance to the defendant have that effect, unless accompanied with actual adverse possession for three years; and that the possession of Haynes could not have that effect. He charged further, that there was no evidence that Hill, the father-in-law, knew of the conveyance to Hughes; that without such knowledge, there could be no fraud in the case, unless at the time of putting the slave into the possession of Haynes ; and that it was not seen how that could be a fraud upon the creditors of Haynes. He also charged that the presumption of title was, like any other presumption, subject to be contradicted by evidence. *338A verdict was returned for the plaintiffs, and the defendant appealed.

No counsel appeared for either party.

Gaston, Judge.

— We find no error in the instructions complained of, to warrant the reversal of this judgment. There was no evidence from which a jury could presume a legal conveyance of the slave from Hill to his son-in-law. To hold otherwise, would be an evasion of the rule of law distinctly laid down in the Act of 1806, *(Rev. ch.*701,) that has prescribed certain *forms*as indispensable in the transfer of slaves without consideration, *“No gift*of a slave shall be good or available in law or equity, unless made in writing; signed by the donor; attested by at least one credible subscribing witness; proven or acknowledged as a conveyance of land, and, registered in the office of the Public Register.” Previously to this act, when a slave was put into the possession of a son-in-law by his wife’s father, and no more appeared, it was the presumption of law that the act was done gratuitously. The statute has not altered this presumption, but it pronounces that *no title*passes thereby. Necessarily then, the slave is held upon a bailment, revocable at any *moment by the*bailor; and no length of possession, under such a bailment, can make the slave the property of the bailee.

On the question of fraud, the Judge properly instructed the jury, that the deed in trust made by Haynes, was not evidence of fraud in Hill, unless the knowledge of it was brought home to him. Haynes’ long enjoyment of the slave, may indeed have deceived his creditors and sureties into the belief that it was his property. Every day brings to our notice instances of great hardship and inconvenience resulting from the operation of this statute. But the legislature must be presumed to have forseen these, and to have considered them as lighter evils than the frauds which the statute was designed to prevent. It is our duty to carry out the enactments, and we have no right to judge of their policy. It would be a manifest departure from the province of judicial interpretation, to treat as a fraud what the law sanctions. Without any evidence, therefore, *339showing a concurrence of Hill in the unwarrantable use of the thing bailed, no Court or jury can have a right to call the bailment fraudulent, or deny to it any of its legal properties.

It is perfectly clear, that the instruction of the Judge was right on the question of the statute of limitations. The possession of the bailee cannot be adverse, until the bailment has been determined; and the alienee under the deed of trust did not take possession three years before this suit was brought.

Per Ctjriam. Judgment affirmed.