
    Dennis and William Fitzhugh, Infants, &c. v. Anderson, Taliaferro, Meredith, and Others.
    April, 1808.
    Loan — Possession by Loanee — Evidence of Ownership —Case at Bar. — A father, anterior to our statute of frauds, having delivered certain slaves to his son, which were proved by verbal evidence, (without any deed or writing.) to have been lent, for an indefinite period, and the son having retained the uninterrupted possession for many years, used the property as his own. and required credit on the strength of his possession; in a controversy between the father, or volunteer claimants under him, and creditors of, or fair purchasers from the son, the father shall be deemed to have given him the slaves; and ou general principles of law and equity, independently of any statutory provision, the title of the creditors and purchasers will be protected. The circumstance that the father, afterwa.rds, by his last will and testament, bequeathed the slaves to the son for life, remainder to his children, makes no difference in the case.
    Statute of Limitations — Suspension—Legal Disabilities.  — When the act of limitations once begins to run, its operation does not cease by the intervention of infancy, coverture, or any other legal disability.
    On an appeal from a decree of the Superior Court of Chancery for the Richmond District, pronounced in May, 1803, in a cause in which the appellants were complainants, and the appellees defendants.
    William Fitzhugh, of Marmion, in the County of King George, grandfather of the appellants, about the year 1772, and at different periods afterwards, between that date and the year 1778, put into the possession of his eldest son John, a number of slaves, amounting in the whole to about eighteen or twenty. These slaves were sent by William Fitzhugh to the County of Caroline, (separated from that of King George only by the river Rappahannock,; where his son John then resided. John Fitzhugh remained in the County of Caroline, until sometime between the years *1784 and 1788, when he removed to the County of Amherst, (distant upwards of one hundred miles from the County of King George,) and carried those slaves with him. About the year 1784, while he resided in the County of Caroline, he sold a negro girl (one of these slaves) to a certain Benjamin Johnson; in 1786, he sold a woman and her child to Thomas Anderson; and, after his removal to Amherst, (at what precise time does not appear,) he sold a negro man to Zacharias Taliaferro. In 1788, about eighteen months after he came into Amherst, an execution, founded on a judgment of the Court of Amherst County, at the suit of William Meredith, was levied on a number of these slaves; and at the moment when the sheriff offered them for sale, John Fitzhugh forbade the sale, alleging that the negroes were not his property, but were only lent to him by his father during his life, and after his death they would go to his children. Meredith having indemnified the sheriff, and the sale being about to proceed, John Fitzhugh took out one of the company, (who had attended for the purpose of purchasing,) and assured him that- his title to the slave was good and indisputable, and that his prior declaration to the contrary was merely intended to prevent the s.ale of the property, if possible; but, as he found the plaintiff was determined to sell, he wished the witness to bid, and become a purchaser; which he declined, fearing that there might be some defect in the title. This was the first intimation given in the County of Amherst, that the slaves were not the absolute property of John Fitzhugh. The sale, notwithstanding, took place, and the slaves were purchased by different persons who, or whose representatives, were parties defendants to the present suit. William Fitzhugh never brought suit in his lifetime for any of them; but by his will, dated in March, 1789, and proved in June, 1791, he bequeathed to his son John, “all the negroes which he had hitherto lent him during his life, and, at his decease, the whole of them and their increase to be equally divided between his two *oldest sons now living, by his present wife.” The appellants are those sons, who, in 1796, being infants, brought a suit by Iyucy Fitzhugh, their mother and next friend, against the persons in possession of these slaves, claiming also their increase and profits, and praying a discovery of their increase, &c.
    All the defendants, except the representatives of Anderson and Taliaferro, formally pleaded the act of limitations; and they all answered, insisting that they, or those under whom they claimed were fair purchasers, without notice of the pretended loan of William Fitzhugh to his son John.
    There is no proof in the cause, that the slaves were ever given to John Fitzhugh by his father: on the contrary, the evidence of the delivery to him, and the declarations of the father to others, (for it does not appear that any conversation or contract ever passed between the father and son on the subject,) seem to shew that it was intended as a loan only, without specifying for any particular period. This fact, too, of a loan, was communicated by William Fitzhugh himself, only to members of his own family, and persons in his employment ; some of whom were requested to let the circumstance be known to the public. Mrs. Hannah Fitzhugh, widow of William Fitzhugh, Robert Allison his nephew and a member of his family, William Watkins, his overseer at Marmion in 1772, William Redd, who lived with him from 1766 to 1769, at Marmion, and then removed to a plantation of his in the County of Caroline, where he was living in the year 1772, all prove that the negroes were lent to John Fitzhugh by his father. Mrs. Fitz-hugh further states, that it was never intended by her husband that the negroes should be at the disposal of his sou John, but should descend to his children; that John applied to his father for permission to sell a negro woman and child, which with difficulty was obtained, he declaring at the same time, that he never would give him permission to dispose of another, which, to the best of her knowledge, *he never did. Robert Allison proves, that William Fitzhugh always declared that he intended the negroes delivered to his son John as a loan only ; that, in rhe year 1783 or 1784, he requested the witness to write a new will for him, and directed that the negroes should be lent to John during his life, and at his death to his children in fee-simple; that, after the year 1784, he frequently heard solicitations, both verbal and written, from John Fitz-hugh to his father, requesting permission to sell some of the negroes he had in his possession, which was as constantly refused; that he had understood, from the family, leave had, with difficulty, been obtained to sell one or two of them; that, during the four or five latter years of his uncle’s life, he was so harassed with solicitations of this sort, that he desired the witness to take occasion to mention the subject in Caroline County, and informed the people there, that he never would give his son John a negro, and, if they purchased them, they would do it in their own wrong; and the witness obeyed this injunction by frequently declaring the old gentleman’s intentions. William Watkins proves, that in 1772, the negroes were sent by William Fitzhugh to his son John, then living in the County of Caroline; that he informed the witness, he had only lent them to his son John, and expressed a desire that the people should know it; for that he had no right to sell them; but that John, after being several years in possession, did sell one of them. William Redd, on the 28th of December, 1772, received a letter from William Fitzhugh, directing him “to send to .Port Royal on a particular day to meet John’s things and negroes, to be conveyed, &c. all which he lent him;” that before John Fitzhugh had sold any of the negroes the witness frequently spoke of the letter to sundry people, and informed them that he did not believe John Fitzhugh had any right to the negroes his father had lent him. There is proof by one person only, (John Sutton,) that this letter was mentioned to him by Redd, while the witness was in treaty for a negro girl, whom John Fitzhugh had offered to sell and to make a good title for; but they not agreeing in the price, he sold her shortly afterwards, (in the year 1784,) to B. Johnson. Before this time, the witness had never heard but that the title of John Fitzhugh to those negroes was good, although he had settled in the neighbour-hood in 1781. Another witness, (William Hug'nlett,) who lived in the employment of W. Fitzhugh from 1784 to 1787, declares, that he was charged with a letter from B. Johnson, of Caroline, to the said W. Fitz-hugh, requesting his consent to the sale of a negro then in the possession of his son John; that W. F. throwing the letter in the -fire, declared that he never had nor ever •would consent to the sale of any of the negroes he had lent to his son John; that, during the time the witness lived with W. F. he was frequently importuned by different persons to solicit his consent to his son John’s selling some of the negroes in his possession; but, from the agitation of mind always discovered by W. S', when the subject was mentioned, the witness was deterred therefrom.
    On the part of the defendants there was abundant proof that John Fitzhugh, both in the Counties of Caroline and Amherst, enjoyed the uninterrupted possession of these slaves, listing them with the commissioners of the revenue as his own, paying their taxes, and never paying any hire for them that was known to any person ; that, while he resided in Caroline, a person (Wm. Clasby) who was his overseer, and another, (Thompson Mills,) a near neighbour, always understood that he was the bona fide owner of all the slaves in his possession ; that an agent of Meredith’s, (Charles Watts,) while in Caroline, made a conditional contract with John Fitzhugh, for Meredith’s land, lying in the County of Amherst, upon the faith and credit of the negroes then in his possession ; that John Fitzhugh afterwards came up to the County of Amherst, and confirmed the bargain with Meredith himself, who declared that he never should have credited him for the land, but in consequence of his being the owner of a number of slaves; that *he brought the same slaves with him, on the strength of which, Watts, the agent of Meredith, had been induced to enter into a contract with him, and that he had exercised every act of ownership over them, pledging some for the loan of money, obtaining credit for goods, &c. on the faith of his being the real owner, selling some, offering others at private sale, and never intimating that his title was incomplete till they were about to be sold to satisfy Meredith’s execution; at which time he acknowledged to W. S. Crawford, and afterwards to Samuel Meredith and Steven Watts, that he had made those declarations merely to prevent the negroes from being sold at all; that more than five years after the sale of the negroes by execution, John Fitzhugh took credit for the amount in a final settlement with W. Meredith, and thereby induced him to give up a mortgage on some land, which he had taken in order to secure himself, should any claim be set up to the slaves; that, before the day of sale, John Fitzhugh went down the country, as he informed one of his sureties for the delivery of the property, (Stephen Watts,) to obtain some aid from his father in the first payment of the land; and, on his return, told the witness that his father had refused him any assistance, declaring that he had already done enough for him.
    The cause coming on to be heard, the Chancellor (the late Mr. Wythe) pronounced the following opinion and decree :
    “That a father putting his son in possession of slaves, and suffering him so long to retain it, and so to convert to his own use their labour and services that the son therebj' had gained a delusive credit, ought to be deemed to have given the slaves to his son, in a controversy between the father or volunteer claimants under him, and purchasers from, or creditors of the son, unless his possession had been, by some written act, registered in a reasonable time and in a proper office shewn to have been fiduciary, or no more than usu-fructuary by some written publication in solemn form premonishing people *with whom the son should deal that he was, although the visible, not the real owner. John Fitzhugh’s possession of the slaves demanded by the plaintiffs may be predicated, from the testimony, to have been such, that all men, except those of their grandfather’s family, or in his employment, had every reason to believe the property to be concomitant with that possession. The caution to the creditor, to satisfy whose execution the slaves were sold, is unimportant, because in the same predicament with them was every slave of John Fitzhugh. The Court doth therefore adjudge and decree, that the bill of the plaintiffs, who are legatees, and therefore volunteers, be dismissed,” &c.
    lfrom this decree the complainants appealed to this Court.
    This cause was argued on Saturday, the 19th of March, 1808, by Wickham, for the appellants, and by Randolph, for the appel-lees. On account of the importance of the subject, the Judges took till this term, to consider of their opinions.
    Wickham, for the appellants,
    argued,
    that the decree of the Chancellor was erroneous, as the proofs in the cause clearly shewed, that the slaves in question were lent and not given to John Fitzhugh; and that, as there was no evidence of fraud in William Fitzhugh, there was no rule of law or equity which gave the defendants a preferable right to that of the plaintiffs. This case, having arisen prior to our statute of frauds,  is to be considered as affected by the statutes of 13 Eliz. c. 5, and 27 Fliz. c. 4, which have no clause respecting loans. On the main point *Mr. Wickham referred to the case of Cadogan et al. v. Kennet et al.  As to the act of limitations, he contended, that it would not run, because William Fitzhugh, although he had a right to resume the slaves at any time during his life, yet was not bound to do it; like the case of a remainder-man, stated by Ed. Hardwicke, in Kemp v. Westbrook, who has an estate expectant on an estate for life or years, and has a right to enter for a forfeiture of the particular tenant, yet he is not bound to enter on the accruing of such forfeiture, and, if he comes in time after the remainder attached, that is, after the death of tenant for life, the statute of limitations will not bar him.
    Randolph, for the appellees,
    contended, that oh general principles of law and equity, independently of any statutory provision, the purchasers and creditors of John Fitzhugh ought to be protected. As between the father and son, there can be no question but John’s long and uninterrupted possession, upon a mere delivery, gave him a complete title; and his creditors and purchasers may insist upon any thing which he might have done, and may equally avail themselves of the act of limitations.
    The loan, which is so much relied on, is only proved by the dependents and connections of Wm. Fitzhugh. No publicity was given to the transaction. They only prove the declarations of Wm. Fitzhugh as to his intentions that John was to have the slaves for life, remainder to his children; but there was no contract, either verbal or written, no delivery to John Fitzhugh for any particular purpose, or for any definite period of time. It is true, they prove that John consulted his father as to the sale of some of the negroes, and with difficulty obtained his permission to sell one or two; but this sale was permitted by Wm. Fitzhugh, without connecting his own claim with it, so as to let the transaction get to the ears of the public. It was made by John Fitzhugh, apparently of his own property; *and is a strong proof of that crassa negligentia, which will never be tolerated in a Court of Equity.
    There is positive proof that John Fitz-hugh exercised every act of ownership over this property; that he sold some of the negroes; paid the taxes of the whole; enjoyed their services without compensation ; and acquired credit on the strength of his possession which he would not otherwise have done. If William Fitzhugh did not think proper to put an end to these deceptions practices, he is justly liable to all the consequences which have resulted. He who produces a false credit shall alone suffer; according to the maxim “qui non prohibet quod prohibere potest, assentire videtur.” On this principle it is, that a stander-by, who sees his property pass into the hands of another without objection, is precluded from afterwards asserting his right. William Fitzhugh ought to have given publicity to this transaction; which might easily have been affected by .conveying the negroes in trust for the benefit of John’s children ; and then the general law, which directs that all deeds of trust shall be recorded would have embraced the case. At this period too, the act of 1758 was in force,. which provides that all gifts of slaves should be in writing and recorded within a limited time.
    The rule caveat emptor has no application to this case. The appellees were buying property of a person who had been in possession more than twice the term necessary to give a complete title in personal estate; and slaves, under the act of 1727, passed as chattels, in which case possession is sufficient evidence of a title.
    The statutes of 13 and 27 Elizabeth, of which our statute of frauds is partly composed, and which were in force in this country at the time of this transaction, and Mr. Wickham’s own case of Cadogen v. Kennett confirm the title of the purchasers. It is not contended that the whole of the statute of frauds as it now stands in our ' act of Assembly was then in force ;■ that part which relates to loans was suggested by the committee of revisors, and was not in force till the *first of January, 1787. Those revisors took a latitude which has never been taken since. They condensed the substance of various laws, instead of compiling a code. But our statute of frauds is nothing more than an affirmance of the general principles of equity, that he who contributes, by his neglect, to a deception, shall himself bear the loss.
    It may be objected that all the defendants, have not formally pleaded the act of limitations. This was unnecessary. John Fitzhugh’s title was protected by the act, and consequently the title of those claiming under him was equally so. Where a party derives a title by several mesne conveyances, he has a right to avail himself of any ground of law or equity which any of those through whom the title was derived might have taken. The delivery of the negroes to John Fitzhugh was in 1772; and the act of limitations, once beginning to run, never ceases to operate by the occurrence of infancy, coverture, &c. If there be a moment when the right may be asserted against the possessor, and it is not done, no intervention of infancy, or any other legal disability will prevent the operation of the statute, 
    
    Wickham, in reply.
    The whole of the testimony proves this to have been a loan to John Fitzhugh for life, with remainder to his children. No fraud appears to have been meditated by William Fitzhugh; and the only effect of his not executing a deed was, that he ran the risk of not identifying the property. It is the usual mode of providing for children and their issue in family settlements; and the circumstance that the remainder was not limited until William Fitzhugh made his will has no-weight; because John Fitzhugh’s title not having been consummated during his life, his father might limit the remainder at any time. Nothing is more common than for persons, by will, to confirm estate before given, or to limit remainders on such estates. Once prove that the negroes were lent, and it is a continuing loan till the contrary appears.
    *There is no such maxim as that he who gives a false credit shall suffer. If this were so, a person having a carriage and horses with a driver from another, or borrowing from a friend a horse or other property upon occasions of the most urgent necessity, might deprive the owner of them; because the person hiring or lending gives a credit by giving possession. It must often happen in the intercourse of society' that a person ostensibly the owner of property has no right. Though a person in possession is prima facie the owner, yet it is prima facie and nothing more.
    
      What law did William Fitzhugh violate, in lending these negroes to his son? What negligence can be ascribed to him? Suppose he had made a deed for them and kept it in his scrutiore; would this have been notice? But it is said the deed ought to have been recorded. Was there any law in force at that time which required it? None. How then can William Fitzhugh justly be charged with neglect for not doing a thing which the law did not require him to do?
    Examine the situation of the parties, and see which were the most to blame. William Fitzhugh did what was common in such cases. He made no deed, because no law required it. The purchasers on the other hand were apprised of the state of the property by John Fitzhugh, and might have obtained complete information by inquiry of his father. It was their duty to have done so. They were chargeable with neglect, and not William Fitzhugh. He was not a stander-by; for he knew nothing of the sale. But he might, it is said, have given' notice in writing. How? Was he to have published in the news-papers? And, if he had, was every body bound to read them? The act of 1758 has been mentioned ; but it has no relation to the subject ; because that act applies to gifts of slaves, and this is the case of a loan. But John Fitzhugh paid the taxes on those negroes ! Is there any thing more common than for persons in possession of negroes to pay the taxes, who, notwithstanding, have no right to them? A complete answer to all these arguments *is, that the sale was forbidden; and the creditors and others purchased at their peril.
    As to those defendants who have not pleaded or relied on the act of limitations, it is clear that they cannot take the benefit of it. The act cannot be given in evidence in a suit in Chancery; because the complainant would be deprived of an opportunity of replying such matter as would take the case out of the statute. And, as to John Fitzhugh himself, he could not plead it, because he held the slaves notoriously on loan.
    
      
       This act passed, as it was reported by the committee of revisors, on the 30th of November, 1785, and took effect the 1st of January, 1787. See Rev. Code, vol. 1, c. 10,p. 15, and Revised Bills of 1784, c. 25, p. 22. — Note in Original Edition. ’
    
    
      
       Cowp. 432.
    
    
      
       1 Ves. 278, 279.
    
    
      
       See 2 Inst. 305.
    
    
      
       See Plowd. 355, Stowel v. Ld. Zouch; 4 Term Rep. 800, Doe ex dem. Duróme v. Jones; 1 Salk. 241, note (a) to tbe sixth edition, bv Evans.
    
   Friday, April 22. The Judges delivered their opinions.

JUDGE TUCKER.

William Fitzhugh of Marmion in K. George county, about the year 1772, put his eldest son John in possession of sundry slaves, which he carried first to Caroline county, and afterwards to Amherst. He some years after sold one of them to Thomas Anderson, and another to Taliaferro. About eighteen months after his removal to Amherst several of them were taken and sold under an execution. John forbade the sale, which took place in 1788. William never brought suit in his life-time for any of them; but by his will dated in March, 1789, and proved in Juno, 1791, he bequeathed to his son John, !! all the negroes which he had hitherto lent him during his life, and at his decease the whole of them, and their increase to be equally divided between his two eldest sons now living by his present wife.” The appellants are those sons, who have brought a suit by their guardian against the purchasers, and their descendants, for those slaves and their increase. There is no evidence in the record that the slaves were given to John Fitzhugh by his father: on the contrary the evidence of the delivery to him, seems to shew that it was intended by the father as a loan, only. Some of the de~ fendants have pleaded the act of limitations : they all insist that they are fair purchasers. The Chancellor was of opinion, *“that the father having suffered his son to remain so long in possession of the slaves to his own use, ought to be deemed in a controversy between himself, or volunteers under him, and creditors of the son, or purchasers from him, to have given him the slaves, unless his possession had been under some written act, registered within a reasonable time, and in a proper Court shewn to have been fiduciary, or no more than usufruc-tuary, by some written publication in solemn form premonishing people with whom the son should deal, that he was although the visible, not the real owner.” And dismissed the bill with costs, &c. from which decree the complainants have appealed.

The lapse of time between the loan (if in fact it were a loan) of the slaves by the father to the son, being nearly or quite twenty years, the period between the sale of those sold by John Fitzhugh and the father’s death, being equal to that which the act of limitations makes a perpetual bar to the action for the recovery of them by the father; and that which elapsed between the taking them and selling them under execution, and the death of the father, being little short of that which constitutes a bar to such recovery, I strongly incline to approve of the Chancellor’s opinion and decree, throughout. I have no hesitation in thinking it ought to be affirmed as to those defendants who have pleaded the act of limitations. And upon the principles of public policy and utility, I think it ought to be affirmed as to the others. Five years peaceable possession of a slave will operate as a bar to the recovery by the former owner, unless some express bargain or agreement be proved, shewing that the possession of the holder, is in fact the possession of him who claims the absolute property. If no such proof be adduced the law construes the property to be in him who hath the unqualified possession, for such a length of time. And as to the creditors of the holder who may have acquired a title under an execution, and as to purchasers either at a public sale under execution, or from ‘x'the holder himself, an acquiescence in their titles and possession thus acquired, seems to me to be a legal bar, and equally one in equity. The gift to the grandsons can have no reference to any period antecedent to the death of William Fitzhugh; for no remainder in a slave could have been created by any verbal gift, made at the time of the delivery to John Fitzhugh, and none is pretended to have been made by deed; and the devise in the will, I consider, as merely void and ineffectual, after such a long period as intervened in this case. I am therefore in favour of an affirmance of the decree.

JUDGE ROANE.

The first part of the second section of the act of 1785 to prevent frauds and perjuries, in relation to conveyances, &c. to defraud creditors and purchasers, was taken from and intended to be co-extensive with, the English statutes of 13 Eliz. c. 5, and 27 Eliz. c. 4. This is not only evident from comparing it with them, but has also been so decided by the Supreme Court of the United States, in the case of Hamilton v. Russell, In that case the Court, moreover, said, that those acts of Parliament are to be considered as only declaratory of the principles of the common law. The Court of King’s Bench had, previously, in the case of Cadogan v. Kennett, declared that the principles and rules of the common law, as now universallj' known and understood, are so strong against fraud in every shape, that the common law would have attained every end attained by the said statutes; and that these statutes cannot receive too liberal a construction, or be too much extended in suppression of fraud. It is added, in the same case, that many things are considered as circumstances of fraud; that the statute says not a word about possession; (which is also the case with the clause of our act of Assembly now in question;) but that the law says that, if after a sale of goods the vendor continues in possession, and appears as the visible owner, it is evidence of fraud; because goods pass by delivery.

*It has since been decided in Edwards v. Harben, as well as in the before mentioned case of Hamilton v. Russell, (in which our act of 1785 was directly brought into question,) that, unless possession follows and accompanies the deed, such deed is adjudged to be fraudulent; that, in the case of an absolute and unconditional deed, that cannot be said to be the case where possession is retained by the vendor; and the decision in Cadogan and Kennett is justified in the case of Edwards v. Harben, by considering that the possession was consistent with and accompanied the deed made in that case in favour of the wife.

Both these authorities also shew that, where the deed is absolute, the retaining the possession is per se fraudulent in point of law, and not merely an evidence of fraud.

These cases go to shew that the statutes in question are merely supererogatory in relation to the common law; that the decision respecting the separation- of the possession from the title, thus adjudged to be in itself fraudulent, does not result from the terms of the statute, but from the general principles of law; that the only cases, in which such separation can stand justified, are those in which the possession is consistent with, and called for by, some deed under which the property in question is limited and claimed; and that the reasons upon which the said statutes are founded cannot be too much extended for the purpose of suppressing fraud. Upon the point of possession also, it will be seen not only, that possession is every' where considered as the indicium of property in relation to personal goods, but also that the third point resolved in Twine’s case is, “for that the donor continued in possession and useth them” (the goods in question) “as his own,” (as in this case,) “and by reason thereof, he tradeth and trafficketh with others and defrauds and deceives them.”

The general principle arising out of the above decisions, when simplified, is, that an unqualified contract, whereby the possession of goods remains in one man and the right in another, is fraudulent; not only for the reason so emphatically *expressed, ut supra, from Twine’s case, but also, because, as is above said, in the case of Cadogan v. Kennett, “goods passed by delivery:” and, in the case of Hamilton and Russell it will be seen, that no difference in this respect exists between slaves and other goods.

Is not the above precisely the definition of the case before us? While the possession exists in the son, does not the right exist in the father? It existed in him always, because the testimony does not shew that he lent the negroes to his son for any given time, and therefore might at any time have resumed the property.

While it is agreed that so much of our act as I have just referred to was taken from the two English statutes of Elizabeth, I cannot see that the latter part of the section in question finds any correspondent provision in any English statute. I mean the part respecting the recording of agreements made on consideration not deemed valuable in law, and that respecting goods loaned.

The clause respecting goods loaned is as follows :

“And in like manner, where any loan of goods or chattels shall be pretended to have been made to any person, with whom, or those claiming under him, possession shall have remained by the space of five years, without demand made and pursued by due process of law on the part of the pretended lender, or where any reservation or limitation shall be pretended to have been made of a use, or property, by way of condition, reversion, remainder, or otherwise, in goods and chattels, the possession whereof shall have remained in another as aforesaid, the same shall be taken as to the creditors and purchasers of the persons aforesaid so remaining in possession, to be fraudulent within this act, and that the absolute property is with the possession, unless such loan, reservation or limitation of use or property were declared by will or by deed in writing proved and recorded as aforesaid.”

On this clause, which, being posterior to, does not embrace, our case, I will remark, that this provision, or one ^similar in principle, (however indefinite as to detail or modification,) may, as justly and naturally, be deemed to have resulted from the general principles of law, as that just noticed in relation to the first branch of this section, and was intended to put an end to all future litigation depending upon the point of possession only. Considering that the wide field carved out for perjury and litigation by the indefiniteness of the principle in relation to possession would be productive of •much public inconvenience, our act of frauds has improved upon that of England by extending itself into this subject also, and establishing one certain standard in relation to possession in respect of loans. In utility, and in principle, this provision is analogous to that beneficial one in the same act which relates to the sale of lands, marriage agreements, &c. But I take the law always to have been in this country, and in England, (and which probably is not changed or affected by the before cited passage from the act of 1785,) that whilst loans of personal goods were permitted, the borrower keeping himself strictly within the pale of his authority in relation thereto, yet, whensoever he should overstep the limits of his character of borrower, act as owner over them, or sell them, (especially with the knowledge and consent of the lender,) he should be taken to be the owner, in reference to all those who may have been drawn in by these acts to give him credit; and that, in such case, the lender is not to be permitted, by his neutrality and connivance, to aid in the perpetration of a fraud.

In considering this case, therefore, as anterior to the operation of our act; while I do not feel myself at liberty to take, in relation to loans, as bold a ground as is above taken, under the statute of Elizabeth, in relation to conveyances, namely, that a separation simply, of the possession from the right, for any portion of time, shall be held to be fraudulent, I have no hesitation to say that, if the borrower, with the knowledge and consent of the lender, departs from his true character, and, in the strong and just language in 'Twine’s case, “useth the goods as his own, *and, by reason thereof, tradeth and trafficketh with -others, and defrauds and deceives them,” the lender and all volunteers under him shall be bound thereby.

As to the facts in the case before us, although Mrs. Eitzhugh and Allison prove William Eitzhugh’s intention to lend the negroes to John Eitzhugh for his life, there is no testimony to shew that, in fact, any contract was made to lend them for any determined period. William Eitzhugh had therefore always the right of property in him; and his right of action accrued, if not from the very time of the loan, at least from the time of the sale in question. William Eitzhugh had not postponed his right to demand these negroes until after his son John’s death; and this, perhaps, (for I have not looked into it,) is an answer to the case stated on this point from Vezey. If William Fitzhugh’s right of action accrued, even on the latter event, the plea of the act of limitations is a bar in favour of those who have resorted to it. 'The case of Grey v. Mendez shews that, when the five years have once commenced, they run over all mesne acts, such as coverture, infancy, &c. but I return to the merits of the case.

It is indeed proved, by some of William Eitzhugh’s overseers and members of his family, that these negroes were only lent; and this was, also, probably known to a few others to whom it was mentioned, and, in some instances, by William Fitzhugh’s desire. On the contrary, several persons residing even in the County of Caroline, where the transaction first originated, (one of them, too, an overseer of John Eitz-hugh,) prove that these negroes were considered as John Fitzhugh’s property, that he used them as his own, gained credit upon them, and even sold one of them. This sale being known, it was naturally to be presumed, from his near residence, that his father knew and approved of it, and it may not have been equally notorious, that this sale was by his special leave, and assented to by him with difficulty. The father, therefore, ought to be bound by the presumption and consequences arising out of this circumstance. Besides, he suffered his son, ^without objection, to remove them into a distant County, in which County, as well as in Caroline, he used every act of ownership over them, and gained credit upon' them. John Eitz-hugh always, both before and after the sale in 1788, spoke of them as his own ; and the purchasers at the sale were authorised to consider his conduct at the sale, (which also was withdrawn in a conversation with Crawford, who most probably communicated that withdrawal to others,) as a fraudulent attempt to evade the execution. I must not here omit to remark, that John Eitzhugh was the eldest son of an opulent father; that this provision, admitting the property to have been absolutely given, was, probably, but a reasonable advancement to him; and that, therefore, (and under the general usage in this respect,) the property might naturally and reasonably be taken to have been his own. On the whole, this is a strong case for the purchasers. I cannot differ this claim from one made for the negroes by the father himself; and, if the father himself were before us, no man could hesitate to decree him to abide by the fruits of his own fraudulent conduct, concealment, or connivance.

On these grounds, I approve of the Chancellor’s decree. But I have formed no opinion (as he seems to have done) as to what act, on the part of a lender, might be proper and sufficient, under circumstances similar to the present, to repel the consequences arising from similar transactions. This is not called for in the present case, and is the less necessary to be settled by the Court as a general regulation, in consequence of the provision before mentioned, as introduced into the act of 1785, in relation to loans.

JUDGE FLEMING.

This appears to be a verj' plain case. The reasons given by the Chancellor for dismissing the bill are too cogent to be gotten over. John Eitz-hugh’s long uninterrupted possession of the slaves afforded a strong presumption that they were his own property, upon the strength of which he obtained extensive credits. The ^'knowledge that he had received them from his father on loan, was confined solely to the family of Fitzhugh; and the great distance to which he removed from his father’s dwelling, rendered it next to a miracle that the circumstance could have been known to others. The dangerous and pernicious consequence of giving countenance to such claims as this, is too obvious to need' a comment. I therefore concur in opinion, that the decree dismissing the plaintiff’s bill be affirmed.

By the whole Court, (absent Judge Lyons,) the decree of the Superior Court of Chancery, dismissing the complainant’s bill, was affirmed. 
      
       Rev. Code, 1 vol. p. 15,16.
     
      
       1 Cranch, 309.
     
      
       Cowp. 434.
     
      
       3 Term Rep. 594.
     
      
       3 Co. Rep. 80.
     
      
       1 Str. 550.
     