
    Spiers and wife v. Alexander.
    From Cabarrus.
    IVhcn a gift of a chattel is found or slatc-d in ? cant, a delivery is presumed ; because without it, it is nol a gift:
    the contrary be found pr stated — i specially if it appear, that another claimed and exercised ownership from a'partieular subsequent period.
    Husband and nife cannot join in d.tirme for a chattel, if the husband had actual or constructive possession afu-r maniage : Por by the marriage and such possession, the whole vests exclusheiy in the husband.
    Detinue for negro slave Violet: plea::, non delimit and. stat. lim. Upon the trial, ike title of the Plaintiffs appeared (o be derived by a perol gift to the feme Plaintiff, while sole, and an infant, by her step-father, J. Means, in whose house she lived at the time of the gift, and after-wards until her intermarriage with the other Plaintiff, which happened before she M as of full age, and several years after the gift had been made. The Plaintiffs were, married at Means’s, and resided a few days with him, and then removed to Spiers’s own house, which was in the neighborhood, and lived there from that time, viz. 1799, till Means died in 1818. The slave had remained on Means’s plantation, with the wife, from the period when she was given until Spiers removed from his house; and from that time Means claimed and exercised the right of owners!»]) over her until he died, when the Defendant succeeded to her as one of his next of kin. This suit was brought in April, 1819.
    Tlie Defendant moved for a nonsuit, upon the ground that the action ought to he brought in the name of the. husband alone; and, also, that the Plaintiffs were barred by the statute of limitations : but the Court directed a verdict to be taken for the Plaintiffs, with leave to the Defendant to move to set it aside, and enter a nonsuit; which was afterwards done, and the Plaintiffs appealed to this Court,
    It was contended on behalf of the Defendant, that the Plaintiffs were barred by die st. 1715, c. 27, s. 5, 9, notwithstanding her infancy at the time of her marriage, and her continued coverture since ; for there is no saving for successive or cumulative disabilities. That question was argued at much length on both sides; but, as the opinion of the- Court was not given on it, it is deemed unnecessary to report the arguments.
    
      S. Henderson, for the Defendant.
    Upon the other point, he said that the case slated a gift; so that there must have been a delivery to the wife; for there can be no gift without a delivery. The property and the possession were, therefore, in the wife at the time of the marriage,- for there is no adversé possession set forth, until that of Means’s, several days (ifter the marriage. The slave was, therefore, a chose in possession, and vested in the husband upon the marriage. In Johnson and wife v. Pasteur, the possession was ad\ erse at the. lime of the intermarriage. But here, even if the actual possession be considered to be in Means at. the marriage, and not in the wife, it was not then an adverse possession, and was, therefore, the possession of the wife, tiie bailor, and, consequently, upon the marriage, became the possession of the husband. Until Means's adverse possession commenced, the possession would be deemed in the husband ; for, unless it be adverse, the possession is presumed to be in him who has right.
    
      Wilson, on the other side.
    Possibly the husband might sue alone \ but he may join his wife. If husband and wife can bring detinue at all, and it is now too late to say they cannot, the Court will apply to it the principles which govern trover, as to them. And it has long been settled, that where one has the property of feme sole in possession by finding, and convert it after marriage, Baron may sue alone, or jointly with the wife. The cases of Power v. Marshall, and Blaekborii v. Greaves,
      
       establish that rule; and Chief Baron Corny ns so lays it down upon their authority. Com. Dig. Tit. Baron and Feme, X. And so here, the husband may sue with his wife, and the fact of his thus bringing the action shews that he has not made an election to have the exclusive property, and, upon his death, it will survive to the wife. t
    The husband never had actual possession; but only such as one has in property lost, before it is converted.
    
      
       Conf. Rep. 464.
    
    
      
       Armstrong v. Simonton, in Sup. Co. Jan. T. 1818.
    
    
      
       1 Sid. 173.
    
    
      
       2 Lev. 107.
    
   Tayj.or, Chief-Justice,

delivered the opinion of the Court:

The only propel" conclusion that can be-drawn from the statement of the case is, that the slave Violet was delivered to the female Plaintiff by Means when the gift was made.; for a transfer of possession is implied, since, without it, a gift is not valid. This continued up to the time of the n 4 x marriage inclusive, and Spiers, the husband, then acquired, in right of his wife, the possession of the slave, which lie continued to hold during the time he remained in the house of Means. It signifies nothing that he left the slave with Means upon departing' from his house, for his separate right of action had attached upon the marriage : the property was a chose in possession, and world, have devolved upon his representatives, had he died the next day. That Spiers’s wife, before his marriage, and he afterwards, had possession, is further to be inferred from the fact stated, that Means claimed and exercised an 'ownership over the slave from the time the Plaintiffs left his house until his death ; from which the implication is necessary, that while the Plaintiffs continued at his house, he did not claim or exercise ownership over them. The right of Spiers, therefore, Vas effectually barred in 1803. In the cases heretofore decided, in which it was held, that the wife was properly joined in detinue, no possession in the husband appeared, and he was consequently suing for a chose in action, which, without such possession, no .Id survive to the wife. From this view of the case, ii results, that it is unnecessary to decide the other question arising out of the operation of the supervening coverture of Mrs. Spiers upon the statute of limitations.

The judgment was therefore affirmed.  