
    Gay v. Moseley.
    Argued Thursday, September 26th, 1811.
    
      \. Personalty — Possession by Loanee over Five Years —Effect.—A slave lent either before or after the act to prevent frauds and perjuries, having remained since the commencement of that act, more than five years in the loanee’s possession, without any demand made on the part of the lender, must be considered the absolute property of the person so remaining in possession, as to creditors of, and purchasers under, him.
    a. Same — Same—Notice of Loan — Effect.—And proof of notice of the loan, or of a deed of trust, from the lender, recorded in the court of a county wherein neither of the parties lived, is not sufficient to do away the effect of such possession.
    Detinue for a slave named Becky by William Gay, trustee, and for the benefit of Susanna Eldridge, against Francis Moseley, in the county court of Buckingham. Pleas, non detinet, and the statute of limitations. On the trial of the cause, the plaintiff produced in evidence a deed of trust, bearing date the 1st of April, 1790, between David Meade, of Maycox, in the county of Prince George, of the first part, William Gay, of the county of Powhatan, of the second part, and Susanna Eldridge, niece of the said David Meade, of the county of Buckingham, of the third part, which was recorded in Henrico county court, the 6th day of the same month. By this deed, in consideration of love and natural affection, and also of five shillings, sundry slaves were conveyed, by the said Meade, to the sole use and behoof of the said Susanna, (wife of Rolfe Eldridge,) for and during her natural life, and, after her death, to and for the use of such child, or children, of hers, as she might by will appoint; and in default of such appointment, to and for the use of all her children and their heirs forever. The slave in the declaration mentioned was proved to be the daughter of a female slave mentioned in the said deed. The plaintiff also produced two witnesses to prove that Rolfe Eldridge, and the said Susanna his wife, said, when the slaves came to his possession, (which happened several years after their marriage, and 12 or 14 years prior to *the date of the deed,) that the same were a loan from David Meade; and that Rolfe Eldridge made the same declaration and acknowledgment, at sundry times, before, and within, five years preceding the date of the said deed. The defendant by his counsel moved the court to withhold the said deed, and the evidence of the said witnesses from the jury; “there being no other testimony in this cause, but the acknowledgments of the said Rolfe, and Susanna, and the circumstance that the deed aforesaid is in the handwriting of the said Rolfe, to prove any loan from the before named David Meade, or any title in them to the said slaves: but the court permitted the deed aforesaid, and the testirflony of the two witnesses aforesaid, to go to the jury: because the defendant had previously examined witnesses, on his part, to proye what had been the declarations of the said Rolfe Eldridge on the same subject, though subsequent to an examination by the plaintiff, of a witness to prove that the deed aforesaid was in the handwriting of the said Rolfe: ” to which opinion the defendant excepted.
    The plaintiff produced one of the subscribing witnesses to the deed, by whom he proved the execution thereof, and that the same was written by Rolfe Eldridge; also-proof that the defendant had purchased the negro Beck at a sheriff’s sale, by virtue of a writ of fieri facias against the said Rolfe for a debt which he contracted in the year 1800; that the creditor, at that time, had heard of the deed aforesaid; and that the sheriff, and the defendant also, were, on the day of sale, notified and informed of the said deed, the sheriff by letter from the plaintiff, and the defendant by verbal information from the plaintiff’s agent, who-forbade the sale; and that the defendant had possession of the negro Beck at the time of issuing of the writ in this cause. The defendant produced several witnesses, who proved that Rolfe Eldridge had possession of the negroes, in the said deed mentioned, 12 or 14 years before its date; and. that he had, at sundry times, before and within five years preceding the same *date, declared that part of the said negroes were his own property; and that they, knowing the circumstances of the said Rolfe Eldridge, before his marriage, supposed and believed that the aforesaid negroes had come to him, by his wife, as part of her portion. And, this being all the evidence in the cause, the plaintiff moved the court to instruct the jury that the law, upon the evidence' aforesaid, was. in his favour; and the court did so instruct the jury: to which opinion the defendant also excepted.
    Verdict and judgment for the plaintiff.
    Upon an appeal to the district court of Prince Edward, it seemed to the court there that the said judgment was erroneous, in this, that the county court admitted improper evidence to go to the jury; and also-that the court was too general in its instructions to the jury. It was therefore considered, that the same be reversed and annulled, as far back as to the issue;” from which judgment the plaintiff appealed.
    After argument, by Peyton Randolph, for the appellant, and Wickham, for the appellee, the following was pronounced, on
   Monday, March 16, 1812, by

JUDGE ROANE,

as the opinion of this court, consisting of Judges Roane, Brooke, and Coal-ter.

“'The court is of opinion, that the female ancestor of the slave in the declaration mentioned having been loaned by David Meade to Rolfe Eldridge, and the said Rolfe Eldridge having remained in possession of the said slave more than five years since the commencement of the act to prevent frauds and perjuries, without any demand made on the part of the lender; and the deed, under which the appellant claims the said slave, in trust for the benefit of Susannah El-dridge, not having been duly recorded in any court contemplated by that act, the same is not competent to do away the effect of such possession enuring in favour of the creditors of, or purchasers under, the said Rolfe Eldridge; and as to the notice which *is alleged in the bill of exceptions to have existed, in the creditor under whose execution the appellee purchased, and in the said appellee himself, of the existence of the said deed of trust, the court is further of opinion that, under the true construction of the act aforesaid, the lapse of five years’ t possession, as aforesaid, was intended to shut up and conclude all inquiries as to such notice, and to avoid the perjuries arising therefrom, in relation to controversies between persons claiming the property loaned as aforesaid under the lender, and the creditors of, and purchasers under, the persons so remaining in possession : on this ground, (without deciding on any other, ) the court is of opinion, that the judgment of the district court is right, so far as it goes; but that the said district court ought to have given an instruction to the county court, on such a new trial, corresponding with the principles now declared.”

Judgment affirmed, adding such direction ; and the cause ordered to be sent to the superior court, and from thence to the county court, for a new' trial to be had therein. 
      
       1 Key. Code, c. 10, s. 2.
      
     
      
       This court did not decide the point, (which in this case it was not necessary to decide,) whether the instruction given by the county court to the jury, “that, upon the evidence the law was in favour of the plaintiff,” was too general or not; but from the case of Fisher’s Executor v. Duncan and Turnbull, 1 H. 4 M. 563, it appears that the instruction in this case was erroneous, since, (though it seemed to relate to the law only,) in effect, it declared the sufficiency of the evidence, not only in point of law, but as establishing facts, to authorize a verdict for the plaintiff. Instructions may be founded on facts admitted by the parties; otherwise, they should be provisional, that, “if the jury shall be of opinion that certain facts are proved, the law arising upon those facts is so and so:” but the court ought not to express its opinion to the jury as to the weight of the evidence going to prove the facts.—Note in Original Edition.
     