#### *Nancy Murphy, by her next friend,*vs. *Davis Caldwell, and others.*

A parol gift of a slave to a trustee, to the 'separate use of a married woman, *held*valid, as against a creditor of the husband, although the slave went into the possession of the wife, the husband having the custody as property held by the trustee for his wife.

*Before*Johnston, Ch., *at Newberry, July,*1850.

This case will be sufficiently understood from the decree of his Honor, the presiding Chancellor, which is as follows :

Johnston, Ch. The bill was filed by Nancy Murphy, the wife of Tarlton Murphy, by her next friend, against Davis Caldwell, Simeon Fair, Robert Moorman, and the said Tarlton Murphy.

In 1838, Davis Caldwell obtained judgment in the common pleas for a large sum of money, and lodged his execution against Tarlton Murphy.

In 1842, he made an assignment of all his effects, including this judgment, to Simeon Fair, in trust for his creditors ; and the effects assigned have turned out to be insufficient for the payment of his debts. Mr. or Mrs. Murphy had possession of two families of slaves, one called the Sims negroes, and the other the Buzzard negroes. And, in 1843, a question was raised, whether these slaves were not liable to be taken for satisfaction of said execution. By direction of a committee of the creditors, the question was submitted to Gen. Caldwell, then practising *21law, and his advice was such, that the committee instructed the assignee not to have the negroes levied on, and ho forebore to do so. Davis Caldwell was not satisfied ; and in 1849, he obtained from the assignee permission to have the negroes levied on, at his own expense ; and he accordingly procured them to be levied on by the sheriff of Fairfield district. He does not claim that the Sims negroes are liable to be taken under the execution ; but he insists that the Buzzard negroes are so liable.

The complainant is the illegitimate daughter of Mrs. Buzzard. About 1828, Mr. Murphy became insolvent. In 1830, Mrs. Buzzard died, and her property was sold. The negro woman Susan, from whom the rest of the Buzzard negroes have sprung, was bid off by Thomas H. Henderson.

The next of kin of Mrs. Buzzard consented that this negro should be secured to the separate use of Mrs. Murphy, and Mr. Henderson bid her off for that purpose. He paid nothing for her, and was to hold the title until a trustee should be appointed. The negro went into possession of Mrs. Murphy — Mr. Murphy having the custody of her as property held by Henderson for his wife.

In 1839 an order of this Court was passed, appointing Robert Moorman trustee of Mrs. Murphy, to take charge of all the property to which she was entitled as her separate estate; and requiring him to give bond for the faithful performance of the trust. He declined to give the bond, and said he would not accept the trust on that condition. He did, however, receive the property from Henderson, who turned it over upon his appointment, and acted as the agent of Mrs. Murphy in hiring out some of the negroes, and applying the hire to her use.

Mr. Fair knew in 1842, and some years before that time, that Mrs. Murphy claimed the Buzzard negroes as her separate pro» perty.

I am of opinion, that the Buzzard negroes are the separate property of Mrs. Murphy, and not liable to be seized under execution as the property of Tarlton Murphy.

It is, therefore, ordered, that the defendants, Davis Caldwell *22and Simeon Fair, do releasé the slaves mentioned in the bill from the levy made by the sheriff of Fairfield district, and canse the said slaves to be restored to the possession of the complainant ; and that the said defendants be perpetually enjoined from seizing or attempting to seize said slaves under said execution ; and that a writ of injunction do issue so to enjoin and restrain them.

It is further ordered, that the defendant, Davis Caldwell, pay the costs of this suit.

The defendant, D. Caldwell, appealed, and *moved the*Court of Appeals to set aside the decree, on the following grounds, viz:

1. Because his Honor erred in decreeing that Thomas H. Henderson was the trustee of Mrs. Nancy Murphy, and held the negroes, Susan and children, as such trustee ; whereas, it is submitted that no trust could be created, unless it had been in writing, or clearly proved as to its terms, and recorded, or direct notice given to D. Caldwell.

2. Because it was a fraud upon D. Caldwell that such secret trust existed, and that (he property was permitted to remain in the possession of the husband, as his own *property,*without any notice to the creditors.

3. Because, if any trust did exist, it was a secret trust, and could not protect the property from the debts of the husband, contracted while the property was in .his possession.

4. Because a gift by the relations of Mrs. Murphy to her, even though Thomas H. Henderson acted as her trustee, in bidding off the negro, and considered himself as trustee, cannot avail against creditors without notice.

5. Because, it is submitted that.no gift can be made by parol to a married woman, so as to prevent the marital rights of her husband from attaching, unless the same be in writing, or the terms directly expressed by deed, will, or decree of a Court of competent jurisdiction.

*Hammond, Summer,*for appellant.

*Pope,*contra.

*23
      *Per Curiam.*

This Court concurs in the decree of the Chancellor ; and it is ordered, that the same be affirmed, and the appeal dismissed.

JohnstoN, Dunkin and Dargan, CC., concurring.

*Appeal dismissed.*