#### Carr Darden *v.*Wright Allen.

From Hertford.

In detinue, if the Defendant relies upon his possession either as a bar to the action, or as a part of his title, the burthen of proving* its length lies upon him.

Every possession is presumed to be upon the title, and for the benefit of the possessor, and he who avers the contrary, takes the burthen of proof.

No length of possession in a bailee, will either destroy the title, or bar the action of the bailor.

Detinüe for several slaves, tried before his honor Judge Rueein, on the last circuit. The Defendant pleaded *non detinet*and the Statute of Limitations.

The writ issued on the 1st of October, 1825, and on the trial tne case was, that the slaves, being a woman and four small children, belonged to one *Robert Flinn,*who died in September, 1820. In November ensuing, letters of administration upon the estate of *Flinn,*issued to the Plaiutiff, who took the slaves into his possession, and kept them until January, 1822, when they were placed by him with one *Wiggins,*to be kept for the year 1822, at a stipulated price. *Martha Flinn,*who was the widow of the Plaintiff’s intestate, and the sister of *Wiggins,*resided with the latter during that.year. In the fall of the year 1822, *Martha Flinn*left her brother’s, and W'ent to reside on her own plantation, in the neighborhood. Early in the year 1823, the slaves in dispute, were in the actual possession of *Martha Flinn,*and so continued until July, 1825, when they were found in the possession of the Defendant. On the 20th of September, 1825, the Plaintiff demanded the slaves of the Defendant who refused to give them up, alleging that he had bought them from *Martha Flinn,*and declaring that he should hold them as his own. It did not appear with certainty, at what time *Martha Flinn*left her brother’s house and took the slaves into her pos*467session. • The Defendant contended, that it was before the 1st day of October, 1822, and the Plaintiff, that it was after. Both parties called witnesses to tiiis point; those called by the Defendant, stated that it was in the fall of 1822, lint whether in the month'of September, October or November, none of them could say. The witnesses called by the Plaintiff, stated that the negroes remained with *Wiggins*until January, 1823, when the Plaintiff settled with him for keeping them, the year then passed, and advised *Martha*Flinn, who was present, to take them home with her, and keep them herself for him, which she agreed to do.

His Honor instructed the Jury, that an adverse possession continued for three years, would not only bar Use Plaintiff's right of action, but extinguish his title to the slaves. But that the Plaintiff’s original right ought to prevail, unless the Defendant showed such adverse possession in himself, or those under whom he *claimed;*and that the burthen of proving this length of possession, was on the Defendant, because he alleged it, either as a part of his title, or in bar of the Plaintiff’s remedy, upon a clear and admitted previous right. The Jury were further .instructed, that every possession is in law presumed to be on the title, and for the exclusive benefit of. the possessor, until the contrary be shown — that if *Martha Flinn*did in fact, receive the slaves from the Plaintiff, or hold them upon a bargain made by him with her, then her possession was not adverse to tito Plaintiff, hut under him, and for his benefit — and although this possession might continue for more than three years, the Plaintiff would not thereby be defeated of his right of action, upon a demand and refusal: but that in relation to such a contract of bailment, the burthen of proof was upon the Plaintiff, who alleged it.

A verdict was returned for the Plaintiff, and the Defendant appealed. ,

*468The cause was submitted without argument, by *Hogg,*for the Plaintiff. No Counsel appeared for the Defendant.

Henderson, Judge.

I think that the law was fully and correctly stated by the presiding Judge. No objection is made by tiie Defendant, to the charge on the first point.; he objects to the second.

I cannot well conceive how a possession is lost by one person, unless it is gained by another j they are correlatives. If I lose my goods and they remain lost for twenty' years, and are then found, I may maintain an action for them, aiid the finder will not be protected by the statute of limitations. So if my bailee possess my goods under the bailment for the same period of time, I can maintain an'action against him *;*for f have not thereby lost my possession, bis possession being my own. There must be a possession adverse to my title, before my pos-, session is destroyed. I speak not here of that actual possession which the owner should have, to maintain trespass *vi et*armis, or to make the goods the subject of larceny ; for peculiar reasons, actual possession in such cases is required. But I speak of that possession which is the *indicium*of title, and which is absolutely necessary to constitute in law a perfect one. The Judge was therefore perfectly correct in instructing the Jury, that title and possession having been shown to have been once in the Plaintiff, that possession continued until another arose in some other person ; and that it was not incumbent on the Plaintiff to prove an actual possession in himself within three years next before suit brought, but that it was incumbent on the Defendant to show a divestment of that possession, by an adverse one in himself, or some other person, with which he could connect his possession.

The Judge was equally correct when he instructed the Jury, that every possession was presumed in law, to be *469on (he title, and for the exclusive benefit of the possessor until the contrary be shown and that a possession being , . , . , shown in *Martha Flinn,*such possession was presumed to be for her benefit, and consequently adverse to the Plaintiff’s right, until its fiduciary character was shown by the Plaintiff; and if so shown, no length of time would either bar the Plaintiff’s action, or vest the title in the Defendant.

In using the expression “ with some, other person with whom he can connect his possession,” i have yielded to the common understanding of the profession. But I wish not to he understood as expressing any opinion on the subject, as it is entirely unimportant in the present case*

Per Curiam. — Judgment affirmed*