possession they were seized under an execution against Estells, by judgment creditor, the defendant, whose judgment was entered about the time of the sale to Hobbs.

The court charged the jury, that although no fraud may have been intended by the parties, and although a fair price may have been actually paid by Hobbs, and although the contract of hire from Hobbs to Estells might be also bona fide, for a fair price, and without intentional fraud, yet that the possession of the property remaining with Estells was fraud of itself, as to creditors, and rendered the title of Hobbs inoperative. Hobbs excepted.

Per Cur. Lipscomb, Ch. J. After referring to Shepard's Touchstone, 66., Twyne's case, 3 Cooke's Rep. 87., Edwards v. Harben, 2 T. Rep. 587., Kid v. Rawlinson, 2 Bos. & Pul. 59., Lady Arundel v. Phips et al., 10 Vesey's Rep. 145., Stewart v. Lomb, 1 Broad. & Bing. 506., Watkins v. Burch, 4 Taunt. Rep. 823., Hamilton v. Russel, 1 Cranch's Rep. 399., Ludlow v. Hurd, 19 Johns. Rep. 221., and Bissel v. Hopkins, 3 Cowen's Rep, 166., decided, that personal property remaining with the vendor is presumptive evidence of ownership in him; but this presumption may be rebutted by proof: possession remaining with the vendor is ruled to be only prima facie evidence of fraud. And in Echols v. Derrick, 2 Stewart's Rep. 144., the court held, that where A. purchased at sheriff's sale, without notice, a slave which had been previously conveyed by deed in trust, but the deed not recorded in the manner required by the statute of frauds, and after the sheriff's sale, and before the expiration of twelve months from the date of the deed, the trustees sold the property, and executed the trust, the statute dispensing with the registry within twelve months, the adverse possession of A. under his purchase at the sheriff's sale, made no difference, and did not prevent the trustees from executing his trust. And see Astor v. Wills, 4 Wheat. Rep. 466.

best promoted to hold it evidence of fraud, where the property was not changed. But in qualified sales, mortgages, loans, &c. of property, it seems to be necessary in those complicated arrangements of which property is susceptible among families, that they should be open to explanation, and that the mere want of change of possession should not, per se, be evidence of fraud. And that is probably the true distinction which might be drawn from the cases. It is the principle laid down in Hamilton v. Russel, 1 Cranch's Rep. 309., and is sustained by a great number of cases, English and American. It is obvious, however, the rule does not apply where the property is so situated it cannot be delivered. Conrad v. Atlantic Ins. Co., 1 Peter's Rep. 386.; Bissel v. Hopkin's, 3 Cowen's Rep. 166.; Callen v. Thompson, 3 Yerger's Rep. 475.

8.

AYRES V. MOORE. January T. 1830. 2 Stewart's Rep. 336.

made to

ditors,

or

Trespass by Moore against the defendant, for taking away a ne- But it is for the jury to gro boy Tom. Ayres pleaded, that he levied on the boy as sheriff, say whethe boy being the property of one James B. Moore, by virtue of ther it was an execution against him. The plaintiff relied on a bill of sale to hinder delay crehim for the negro, by James B. Moore, in March, 1825, for the consideration of $225, to be paid at Christmas; and which was duly paid, and the bill of sale duly recorded. The sale took place at the house of James B. Moore, when the slave was delivered by putting his hands into the hands of the purchaser, who afterwards went home, leaving the slave in the possession of the vendor. About six weeks after the plaintiff took the boy home, but went backwards and forwards from the house of the purchaser and vendor, but was some time after, continually at the house of the purchaser. The defendant gave in evidence a mortgage of the boy, made after the sale to one Brittain, who forcibly took the boy, and retained him near twelve months, until J. B. Moore satisfied the debt, when the boy was returned, and again went into the possession of William Moore.

The counsel for the defendant requested the court to instruct the jury "that if they believed the possession did not accompany and follow the bill of sale from J. B. Moore to the plaintiff, William Moore, at the time of its execution, that then the said bill of sale was fraudulent in law, as against creditors and subsequent purchasers." But the court refused, and charged them, "that if they believed that the consideration of the bill of sale was bona fide, and that it was duly recorded, it was good and valid in law, though the negro remained in possession of the vendor previous to that time."

The Court, Lipscomb, Ch. J., and Saffold, J., both gave opinions, and after referring to Hobb v. Bibb, supra; Bissell v. Hopkins, 2 Cowen's Rep. 431., Barron v. Paxton, 5 Johns. Rep. 261., Dawes v. Cope, 5 Binney's Rep. 265., Brooks v. Powers, 15 Mass. Rep. 244., Howell v. Elliott, 1 Badger & Dev. Rep. 76., Clow v. Woods, 5 Serg. & Rawle's Rep. 275., held, that where the vendor remains in possession of personal property sold, it is not sufficient, as against creditors, that the consideration of the sale be bona fide, and the bill of sale recorded; it must appear that the sale was not made to

hinder or delay creditors; and whether it was made to hinder or delay creditors, is to be determined by the jury from all the cir

cumstances.

of slaves,

under a

9.

GARTH'S EX'RS V. BARKSDALE. March T. 1816. 5 Munf. Rep. 101.; GAY v. MOSELY, 2 Munf. Rep. 543.; Beasley v. OWEN, 3 Hen. & Munf. Rep. 449.

Five years' Trespass brought by Barksdale against Garth, sheriff, for unpeaceable possession lawfully seizing two slaves. The plaintiff claimed the slaves, as having been the original owner, and only having lent them to Barksdale, who had married his daughter; the defendant undertook to prove that the slaves had been in Barksdale's peaceable and uninterrupted possession for five years from the time when they were first loaned him, and before the service of the execution.

loan by pa

rol agreement,

vests the title in the loanee,

subject to his creditors, and

which can

them after

five years.

The court instructed the jury, that if the slaves loaned by the plaintiff to Barksdale, had, before the expiration of the five years, not be de- been returned, by the consent of the lender and borrower, that vested by returning would interrupt the possession; and that even if the borrower, the expira- after five years' possession of the slaves, had surrendered the same tion of the to the lender, the lender's right to the slaves became revested in him, so as that, in neither case could an execution, in behalf of a creditor against the borrower, which issued subsequent to the last return of the slaves into the borrower's possession, be levied on said slaves, although in the borrower's possession at the time of levying said execution, unless five years had again elapsed after the possession of said slaves was restored to the borrower. Verdict for plaintiff; and the defendants appealed.

Per Cur. The Court is of opinion, that the instruction of the superior court is erroneous in this, that the five years' possession of the negroes by Douglas Barksdale, if proved, vested a title in him, which enured in favor of his creditors, notwithstanding he might thereafter have returned the same to the plaintiff, from whom he had received them. Judgment reversed. See Boyd et al. v. Stainback et al., 5 Munf. Rep. 305. Where the court declared, that a loan of slaves, though not declared by deed in writing, duly recorded, and therefore void as to creditors, (the loanee having continued in possession five years without such demand as would bar their right,) is nevertheless effectual between the parties and their representatives. If, therefore, the loanee die in possession, they are not to be considered as assets belonging to his estate, nor

can be recovered as such; being liable to his creditors, so far as their claims remain unsatisfied by the assets in the hands of his executor or administrator, but no farther. And if the assets be deficient, a court of equity will give the creditors relief; they will make the assets liable, in the first place, so far as they extend, after which it will allow the lender a limited time to make good the deficiency, and in defualt thereof, a sale of the slaves.

(G.) BY PRESCRIPTION.

1.

BROH V. JENKINS. April T. 1821. 9 Martin's Louisiana

Rep. 526.

If a slave

be claimed by prescription,

the ques

tion is to

be examined accord

ing to the

laws of the

country in

was thus

This suit is brought by the plaintiff, as heir to his mother, to recover a slave named Lazare. The testimony on the part of the plaintiff is, that he is the only child of Madame Broh; that the slave Lazare belonged to her in the year 1803, when she resided at Jeremy, in the island of St. Domingo; that she sent him to Charleston in that year; that she died at Baracoa, about the end of 1808, or begining of 1809; that the plaintiff was born in 1792, or 1793, and was consequently 26 or 27 years old when this which he suit was commenced. The testimony on the part of the acquired. defendant is, that Lazare was in possession of Mr. Placide, in Charleston, about fourteen years before this suit was commenced, where he always remained, until sold to defendant; that Placide sold him to Dastras on the 26th day of May, 1806, who possessed him, as owner, until his death, in the summer of 1817, a term of eleven years; that he was in October, 1817, sold to Lazarus; that Lazarus sold him to defendant, on the 2d of August, 1819, in Charleston, South Carolina. The plaintiff arrived here in 1809. The negro Lazare was brought here by the defendant, in the month of August, 1819, and this suit was commenced the 15th September, in the same year. The defendant sets up the title of prescription by virtue of possession, in himself and others, under whom he claims, founded on the several sales which were produced. The principal question in this case was, by what law will the court. judge of the prescription: that of South Carolina, where the slave was, or that of this state, where the suit is brought.

Porter, J. The presiding judge of this court has gone so fully

into the case, in the opinion which he has prepared, that I shall confine my examination to what I consider the main question in the cause, and that is, whether the statute of limitations of South Carolina has vested a title to the slave in the defendant. This inquiry, I think, will be best conducted, by pursuing the following divisions of the subject:

1. Did the statute vest a title in South Carolina ?

2. Whether the owner of the property is bound by a law of this description, when it was proved that he did not reside in the country where it was enacted?

3. Supposing the title to have been vested, in the state where the statute was in force, is there any thing in our laws which prevents the defendant claiming the benefit of that title here?

I. The statute of South Carolina is an act of limitation, and from the perusal of it alone, it might be doubted whether it was any thing more than a bar, which could be plead by the possessor, to an action in which the property was demanded. But it appears that judicial interpretation of the act has held, that it vests title ; and there is no doubt, from the decisions in thal state, that there the person claiming slaves under the statute could recover them in the hands of another, as well as plead the act to an action commenced. 2 Bay's Rep. 156. 425.

II. The next point, whether the plaintiff, not being a citizen, or resident of South Carolina, can lose his right to property by a law of that country, is that which has presented the most difficulty to my mind. If it had been shown in this cause, that both parties were citizens of that state, I should have no doubt that both were bound by these laws, in virtue of which the one acquired, and the other lost a title to the property; and that the right thus acquired would not be destroyed by the removal of one of the parties into another country.

It is stated by Huberus, an eminent writer on the subject, that whoever makes a contract, in any particular place, is subject to the laws of the place as a temporary citizen. S Dall. Rep. 370., in note. The rule is held to apply, where a contract is made in one country, to be executed in another, and the law of that where the agreement is to be performed, will form the rule of action for the parties. Now, although it has not been shown, that the plaintiff, or those under whom he claims, ever were residents or citizens of South Carolina, or that they made any contract there, in relation to the property now sued for, yet enough, I think, has been proved to