
    CONSTITUTIONAL COURT,
    COLUMBIA,
    NOV. 1803.
    Cockfield v. Hudson.
    Adverse possession of personal property gives a title under the statute of limitations ; and the plaintiff in trover may recover on such title against the former owner.
    Motion for a new trial. The action was trover, for a negro slave, and was tried before Brevard, J. in Marion district. The plaintiff claimed by the last will and testament of Wm, Cockfi. ld, who died in 1794. It appeared in evidence, at the trial, that the testator, a considerable time previous to his death, divided his property between hi children, and by verbal gifts apportioned to them their several shares, reserving two slaves, and some other property to himself. That his youngest daughtet, now the defendant’s wife, had her part reserved, and kept with the testator’s, as she continued to live with hitu : the other children took their shares away, as they married, and went to live apart from their father. The negro in question was the issue of a wench given, as aforesaid, to the defendatit’s wife. T ie testator was heard to say, many times, that he had given the wench aud her issue to this daughter. At other times, he was heard to say, that the negroes should be his daughter’s at his death. Ailer the death of the testator, the negro in quos.ton was appraised, and delivered over to the plaintiff according to the testator’s last will; but the defeudatn did not agree thereto : and, in September, 18(jL, by some management, not clearly ascertained, got the negro into his possession. The counsel for the plaintiff contended at the trial, 1st. That the evidence adduced was in. sufficient to establish a gift to the defendant’s wife, as there was not evidence of an actual delivery. 2d. That if ever the defendant acquired a title to the negro, by the gift alleged, he had lost it by the operation of the act of limitations, more than four years having elapsed after the death of the testator and delivery to plaintiff, before defendant got psssession ot the negro ; and, also, that the manner of gaining possession, which was wrongful, and fraudulent, could riot avail him to defeat the effect of the limitation act. 3d. That the gift, if proved could not take effect according to the rules of law, as being by way of entailment.
    The charge of the judge was to the' following effect. The jury* were desired to consider whether the evidence amounted to proof sufficient to evince an intention on the part of the donor to give, presently, the absolute property in the slave to the donee; and on the' part of the donee an intent to receive' the same,- both fully believing that such their intentions were fully effectuated, and that the transfer ot property was full and complete:' and, if so, they were instructed to' consider the gift as effectual as if made in writing, and accompanied With an actual and formal delivery. They were told that a formal and ceremonious delivery was not necessary to the completion of a gift of a personal chattel,' especially to a child or near relation ; but that a constructive or legal delivery might be inferred' from circumstances, as in the case, where the donor speaking of the gift he had made in sight of the negro given, said to the donee,“there it is, why don’t you take care ot it.” The jury were further instructed, as to the gift, to consider the same either as abso-. lute, or conditional. If they should believe, from the evidence, that the donor intended to annex a condition or limitation to the gift, importing that he should enjoy the use of the property for bis life, alihough he intended a present gift of the property in the thing to the donee, they should consider such condition or limitation void, the same being inconsistent with the nature of such gift. But if they should believe it was the intention of the donor not to give away the property presently, but only the remainder after bis death, or rather, a contingent interest, or the property when he should bo dead ; then they were instructed to consider it a void gift, and that no properly ever could vest in the donee by virtue thereof.
    Relative to the limitation act, the jury were told, that this case differed from the case of the lessee of Gordon v. Parsons, in 1 Bay’s Rep. 37, in which case, the party was denied the advantage of a possession obtained by force, to defeat the operation of the limitation act: because, 1st. In this case, it did not appear that the defen. dant had got possession by force. And the couit expressed an opinion, that possession of personal property, although obtained by inticing, or other means than by forcé, against the consent of the former possessor, will prevent the operation of the statute of limitations ; and intimated an opinion that the plaintiff in this suit, could not avail himself of the title set set up by him, founded on the statute.. The jury found for the defendant.
    The motion for a new trial was argued by Witherspoon, for the plaintiff, and Falconer, for the defendant.
    It was chiefly insisted on, in behalf of the plaintiff, that possession by the executors of the will, and by the plaintiff, under the will, was adverse to the defendant’s title, and would give the plaintiff a good title by possession •„ also, that a parol gift, under the circumstances of this case, cannot be held valid. 2 Bl. Com. 441, 445. 2 Esp. Dig. 575, 151. P. L. 455.
    For the defendant, it was contended, fhat the plaintiff’s title by possession cannot be recognized in this way ; but that the act must be pleaded That the act affords a shield to the person in pos. session, and gives no advantage lo him out of possession. The act meant to favor persous in possession ; to quiet possession, not to disturb it. 3 Bac. Abr. 504. The English doctrine faVors this dis. tinction.
   By the court.

The statute of limitations must be allowed to be gi. ven in evidence, as well to support the claim of the plaintiff, as to re. but it. The right to the benefit of such a title as can lie derived from it by possession, adverse and notorious, is reciprocal, and will avail either party. The plaintiff could not plead the act, and therefore might give it in evidence. There is no need to give an opinion on, the other point, whether possession gaiue,d by inticing, &,c. will defeat the operation of the act or not. It appears in this case, that there was no evidence sufficient to induce the jury to believe that the possession of plaintiff, and those under whom be claims, was not continued for four years adversely to the defendant, before he got possession. Therefore new trial ordered.

Note. Of a chattel which is derived out of a real tiling, and carries an interest of a real thing, a limitation may be made to one for life; otherwise, of a personal thing, which cannot be granted during the life of the grantee, (14 Yin, 77,) except by way of executory devise, or by deed of settlement in trusts  