
    Ashmon T. Collier & Elizabeth his wife v. Hasten Poe.
    From Chatham
    The statute of limitations does not apply as between bailor and bailee, and the latter cannot, by denying the bailment and claiming against the bailor, make his possession adverse.
    Where a father, upon his daughter’s marriage, before 1806, sent hotae property with her, it was presumed to be a gift as between the par ties, and should be taken as such in favor of creditors.
    But a declaration to the daughter accompanying the delivery, that a loan and not a gift was intended, is sufficient to rebut the presumption, and convert the husbarid into the father’s bailee, although such declaration was unknown to the husband.
    The bill was filed in February, 1824, and set forth, that the Defendant in 1804, intermarried with a daughter of one James Paine, who, within a week after the marriage, put into his possession several negro slaves, expressly declaring at the time in the presence of the Defendant and of his wife, that he did not intend the ne-groes as a gift but merely lent them during his pleasure —that the wife of Defendant had issue the Plaintiff Elizabeth, and immediately thereafter died, — that Paine died about the 4th of December, 1807, having first made his will, and bequeathed the negroes to the Defendant for eighteen years, and then directed them to be divided between the Plaintiff Elizabeth and the Defendant — the moiety of the: Defendant to be retained by him during his life, and after his death, to vest in her. The bill then set forth the marriage had between the Plaintiffs, and charged that the Defendant had denied their title* had sold some of the slaves, had threatened to sell others — that lie was possessed of but little property, and the Plaintiffs believed would remove all the negroes beyond the state. The Plaintiffs prayed a special writ directing the Sheriff to seize the negroes and retain them ’till surety should be given to prevent such removal, and to produce them when required by the Court, and for an account and general relief.
    
      The answer denied the loan, and insisted upon the delivery of the negroes as an advancement to the Defendant’s wife, and alleged that the Defendant had always held and claimed the negroes as his own property, that when some report was circulated of the claim now set up by the Plaintiffs, he had openly and publicly an. nounced his title — had for more than three years before the death of Paine, and ever since exclusive, continued and adyerse possession of the slaves, and insisted on the statute of limitations.
    By the proofs it appeared, that when the negroes were about being sent to the house of the Defendant by Paine, he did declare to his daughter, that they were lent during his pleasure, and were not designed as a gift, but it did not appear that the Defendant was present. And it. was also in proof that the Defendant always claimed title to the negroes, that he made it known, and held them as his own, in opposition to the title now set up.
    The cause was submitted without argument, by Mur-phey & JVhs/t, for the Plaintiffs, and Gaston, for the Defendant.
   Henderson, Judge.

— It has long been settled by the decisions of our Courts, that if a parent puts property into the possession of a child who has left, or is about to leave the parent, such property is presumed to be given, and not loaned to the child, and therefore purchasers and creditors have subjected it to their claims, whatever may have been tiie private understanding of the parties. But this is a presumption of fact, and not of law. Clearly, therefore, between the parties, and all others, who cannot impute either legal pr actual fraud to the transaction, the true ¿haracter of the act may be shewn. In this case, (the contest being between the parties) it appears very satisfactorily from the testimony, that the slaves were oaned, and not given, they therefore remained the property of the wife’s father, and subject to his dispositions.

The Defendant must therefore account for the hire and profits of the slaves, from the period his interest in them ceased, to wit, 18 years after the death ofhis wife’s father; and as it also appears, from the Defendant’s answer, that he has sold more than one-half of the slaves, those remaining in his possession must forthwith be delivered to the Complainants. As to the statute of limitations, relied on in the answer, there is no pretence for its operation, either in law or equity. The possession of the Defendant was that of a mere bailee; notwithstanding his declarations that he claimed them as his own, he could not, by his own act, throw off his character of bailee. In ascertaining the character in which he received and held the negroes, it is not material that he should have been informed that the slaves were loaned, and not given, for he came to the possession as husband, the loan being made to the wife, at least she was the meritorious cause of it, and she had full knowledge. — The Defendant must also pay the costs; for although the bill was filed before the expiration of the eighteen years, yet Complainants had just grounds to apprehend a farther waste of the property from the previous conduct of the Defendant, admitted by his answer.

Per curiam.

— Decree accordingly.  