
    Daniel vs. Daniel.
    Detinue,
    
      May 4.
    A second donee of a slave (or one claiming un der him,) relying upon thepos session of the donor for five years after the first gift, in bar of the right of the first donee, must show that the latter had . not the possession at any time within the five years ; or that the donor continued, for five years,in the uninterrupted, adverse possession.
    [Mr. Crittenden for Appellant: Mr. Sanders for Appellee. ]
    From the Circuit Court for Boone County.
   Chief Justice Robertson

delivered the Opinion ,of the Court.

George W. Daniel, by his next friend, brought two actions of detinue against Vivion Daniel — one for a slave (Cresa) and one of her children, and the other for another and younger one of her children.

The two suits were consolidated ; and G. TV. Daniel obtained a judgment for the three slaves.'

Vivion Daniel had bought the slaves at a sale of them under an execution, in his own favor, against the father of George W. Daniel, who (i. e. G. W. D.) claims them in virtue of a gift alleged to have been made to him, in the year 1814, of Cresa, by his grandfather, Peter Daniel.

After same testimony had been introduced, tending to prove a gift by Peter Daniel to George W. Daniel, shortly after his birth, and when his father was in the possession, of Cresa ; and after some other testimony had been heard, tending to prove a prior gift to George W. Daniel’s mother, before her marriage, and when she was a minor, living with her father — the circuit court instructed the jury, that if they should believe, “ that Peter Daniel gave the girl in controversy to his daughter Nancy, more than five years before the gift to her son George W. Daniel, and that during that time, Peter Daniel held said girl in his own possession, claiming her as his own, and exercising acts of ownership over her, such possession vacated the first gift.”

As the instruction does not necessarily import, either that the daughter never was in the possession of the slave within five years succeeding the gift; or that the donor “remained” in the possession, “notwithstanding such gift,” in the language of the forty first section of an act of 1798, (2 Dig. 1158-9 ;) or that he continued, for five years, in the uninterrupted, adverse, possession — the facts hypothetically stated, do not result in the legal deduction that the gift never took effect, or was afterwards invalidated-, and more especially in favor of one who was not a creditor or purchaser.

Wherefore, without intimating any opinion as to the effect of the testimony which was heard on the trial, this court orders and adjudges that, in consequence of the erroneousness of the foregoing instruction, the judgment of the circuit court be reversed, and the cause remanded for a new trial.  