
    GAUNT vs. BROCKMAN.
    After the a- ~ peration of the aft o: Virginia of 1758» & before tfe operation of the aft of 1785, parol gifts of Haves were void, as between donor and donee, as well as agaínft creditors and purchasers — I Waüi. 139.
    Former pof-fefiion of Haves, though continued long enough to protect the holder againit an action,cannot veft .a r’ght, fo as to enable fuch holder, when deprived of the property, to maintain an ác. fcion thereupon.
    
      GAUNT brought his action,of detinue against Brock' pian, for some slaves.. A verdict was found, subject to the opinion of the court, on an agreed case, which is, ⅛ substance, that — ¾
    Samuel Rollins, in the state of Virginia, being the owner of the slave Hester^ the mother of the other slaves sued for, in August 1780, sent Hester to Reuben Sullinger, who married, his, daughter Sally. Hester remained there (except when sick, in the summer 1781) until Sullinger’s death,, about April 1785. When an Inventory and appraisement pf Sullinger’s estate was. making, old Rollins.objected to putting Hester in the inventory, she being then in the possession of his daugh. ter, Mrs, Sullinger. Upon interrogation,, if he had not intended the slave for his daughter, he said he had, “ but had never given her to his daughter.”' Re then gave her to his daughter, in a public manner. She held possession of the said slave until her marriage with th§ plaintiff, who kept possession until 1804. Old Rollins, by his will, dated 6th of February 1789, and proved and recorded the summer following, “ Leaves to his daughter, Sally Gaunt, negro Hester and increase (now in possession of Reuben Gaunt) induring her life, and at her. death the negroes to descend to her daughter, Alley Sul-linger.” Sally died about 1802-3. Brockman intermarried with the devisee, Alley Sullinger ; and in 1804, the negroes came to his possession. Upon this agreed case the general court gave judgment for the defendant; from which Gaunt appealed.
    The recital in the preamble of a flatute does not limit the general words of the enabling claufe, to the cafes recited in the preamble.
    
      May 3rd.
    
    
      Allen, for the appellant.
    — This being a dispute between Gaunt and Brockman, you must decide which has the better right. The public gift to Sally, the daughter, in 178$, is admitted ; and also, our possession under it, of near twenty years. It may be objected to us, that the Virginia statute of 1758 
      , requires gifts of slaves to be in writing ; and that the statute of 1785, which took effect on the first of January 1787, is an alteration of the law, declaring that gifts accompanied with possession, shall be valid. But I contend that the act of 1758, ought to receive the same construction which it now has, with the amendment of 1785. It is not uncommon for the legislature (for preventing disputes, and out of abundant caution) to amend a law, when the courts of justice would have given it the same construction, without the amendment.
    The mischief intended to be guarded against by the act of 1758, was setting up secret gifts, against purchasers and creditors- The object of the law will be effectuated by deeming such gifts void, as to them. There was no danger of an injury to any others but the creditors and purchasers : as between the parties, and mere volunteers under the donor, the gift must be valid ; and I am inclined to think that the cases in which it has been decided in the Virginia courts, that a parol gift is void, have been only where purchasers and creditors were concerned. Gaunt, in this case, is a purchaser for a valuable consideration. He claims by virtue of a marriage : and marriage is a good and valuable consideration. Brockman claims under the will of old Rollins, and can therefore have no better right than Rollins had.
    We are also entitled to recover, by virtue of our long and uninterrupted possession. It would have barred Brockman from recovering against us. And his improper act, in procuring the negroes from us, in a manner he will not avow on the record, cannot place him in a better situation than if he were now the plaintiff. If the heirs of Sullinger have any claim to the negroes, let them look to us, and we will meet them on that ground.
    Clay, for the appellee.
    — In detinue the plaintiff must; recover on the strength of his own title. He must have a general, or a special property. The appellant has shewn neither ; for if his doctrine, that a parol gift, accompanied with possession, will transfer a slave, then the property vested in Sullinger. The delivery of the property to him by his father-in-law, on, or shortly after, his marrige, without an express reservation of the right to the slave, must be considered a gift. If this is not the case, there are few sons-in-law who might not be stripped of their property ; for seldom does an express formal gift take place. Such has been the decision of the superior court of North-Carolina — See Haywood’s reports. And such has been the decision of the inferior courts of this country. It has not heretofore come before this court.
    But I contend that subsequent to the act of 1758, and prior to the taking effect of the act of 1785, there could be no parol gift of a slave. That act was passed to protect donors from pretended gifts being set up and supported by perjury, as well as to protect creditors and purchasers. It is true, the preamble only recites the mischiefs as to creditors and purchasers ; but that the •preamble shall not restrain the enacting clause, is a well settled rule . It is usual to recite, in the preamble, a few of the most prominent evils, and then proceed, by the statute, to provide for every mischief that can be foreseen.
    Mr. Allen is mistaken in supposing that the decisions in declaring that parol gifts, though accompanied with possession, are void ; are confined to the cases of creditors and purchasers. Turner m. Turner, 1 Wash. 139, is a case of a dispute between donor and donee. No creditor appeared there, and is full in my favor. This same doctrine, that a gift, not authenticated as required by the act of 1758, is void, has lately been recognized and decided On, by the supreme court of the |Jnited States, at their last term. It was a case of peculiar hard ship. The gift was in writing to an infant. The father did not record it; and for his neglect, do those claiming under him, retain the property. It was in the case of Spiers vs. Wiilison, which went from this state.
    Talbot, in reply.-
    — -A bare deliverey never can pass ⅝ right. It is only a ceremony to show an intention to give or vest a right. And wherever there is no intention to give, there can be no gift. It is shewn here, that Rollins did not intend to give the negro to Sullinger. Delivery is used and relied upon, where the thing does not usually pass by deed, as one important requisite to a gift, not as the sole one. If the case refered to in Haywood, was a case of a bare delivery, without any thing to indicate an intention to give, it is preposterous. Where delivery is followed by long possession, and other accompanying circumstances, it may be evidence for a jury: to infer a gift ; but the court are to decide on the facts submitted; not to infer facts that are not found nor admitted. There is nothing, then, to shew that Sul-linger himself, had any right to the negro in question 5 and we cannot, therefore, be injured by his having had the possession of her.
    The statute of 1758, was a remedial one. It must be construed by the rules of the common law ; by considering the old law, the mischiefs, and the remedy proposed, The old law is known ; for the mischief, look to the. preamble , 1 acknowledge that if a case be within the mischief intended to he provided against, and the enacting clause is sufficiently comprehensive, you should consider it embraced by the statute, though not mentioned in the preamble. B.ut here, the legislature have shewn the reason which, induced them to interfere. It was to protect creditors and purchasers. Nothing in. the law shows that the legislature meant to protect the donors. They could not have meant to have done it. To have attempted to have protected a donor, who was. under no disability, nor improper control, against him^ self, would be absurd. It is like the statute directing conveyances to be recorded in a particular time. Under them, it has been frequently decided, that if made, and not recorded, though they may be avoided as U*. purchasers and creditors, yet they are valid and obliga^ tory between the parties,
    
      
      May 7th.
    
    
      
      
         Old body of Vir. Laws, P* 353*
    
    
      
      
         8 Moj, J44 — -6 Mod, 62 — Palm. 486 -ri Jon, 164 —t Pr. Wms. 320 — 6 Bac. Ab.(Gwil.Ed.) 380, 381 — 3 Atk. 204-— Cowp. 543.
    
    
      
      
         Co. Lit. 79 — Plow. 369 — I Atk, 174, l8z — 1 Vez. 365> 377 — 4 Term Rep«793 • — 6 Bac, Ab. (GwU, £d.) 3B1,
    
   Eüwards, Ch. J.

delivered the following opinion of the court : — The plaintiff claims under the verbal gift by Rollins to his wife, then in possession. Ifhisclainj, so derived, is invalid, no other question need be stirred ; since possession is protection in detinue, against all the world, except the right owner ; not that former posses* sion will maintain the action against all except the right owner, as was contended.

By the act of assembly, passed in Virginia, in 1758, entitled “ An act to prevent the fraudulent gift of slaves,” parol gifts were void, and no estate in slaves could pass but by deed or will, in writing, &c. It has been contended, that the act did not extend to gifts accompanied by possession in the donee. But to limit the general words of enaction in the statute, by the recital in a preamble, of some of the most prominent mischiefs, cannot be warranted by the rules of exposition. The ceremony by which slaves should be transmitted from one to another, had been under the consideration of the legislature, from time to time, from the year 1705, and the difference between gifts executed and executory, was not overlooked ; but in that act itself, was evidently in the contemplation of the legislature; as appears by the second section, providing for former parol gifts, executed and accompanied by five years possession ; and the third section, which provides for recording verbal gifts, in certain cases, theretofore made. With the subject thus before the legislature, we cannot presume, in an act providing for the record, and confirmation by possession, of antecedent gifts ; the legislature meant to exclude, out of the general enaction, “ that after the passing of this act, no gift of any slave or slaves shall be good or sufficient to pass any estate,” &c. the cases of gifts, accompanied by possession of the donee ; especially, when we find the clause proceeds, “ unless the same be mae^e by will, duly proved and recorded, or by deed in writing, to be proved by two witnesses at least, or acknowledged by the donor, and recorded, &c. within eight months after the date of such deed or writing.” With these enac-tions,and the other sections of the act, before us, how can we say the legislature forgot to insert this further exception, “ or unless the possession of said slave or slaves shallbe with the donee,” &c. and that we will supply the ©mission.

Possession is -one of the evidences of gift, or of pfd-Perty > and, indeed, a tolerable persuasive evidenced Deeds and wills are also but evidences of transfer; more conclusive, however, and less liable to fraud, secrecy, and misconstruction, than possession or parol transfers. The legislature selected the higher and more conclusive evidence ; we cannot supply, by intendment, the weaker and more uncertain;

This construction gave rise to the act of 1785, sus-pendedinits operation until the first day of January 1787. That act being prospective only, cannot operate upon this case.

The proposition, that all gifts accompanied by possession of the donee, were out of the mischiefs intended to be guarded against, cannot be admitted. The mischief was, the secret transfer of property, by matters in pais; which could take place privately, in the bosom of a family, and before a witness or witnesses, who being known only to the donor and donee, could be brought forth or held back, as the claim of a creditor or purchaser, of donor or donee, might require, so as to defeat the one or the other. The remedy proposed, was to require a more Solemn, public, and notorious.evidence of transfer ; thereby giving the property in slaves, a more permanent and less volatile composition, so as to be more accessible to persons, other than the donor and donee. In the act of 1787, when the attention of the legislature was again called to the subject, they did not choose that possession alone, without regard to the length of that possession, should supplv the place (as to creditors and purchasers) of the evidence required by the act of 1758.

We were, at first, strongly inclined to the construction of the act, as contended for by the appellant; but upon looking into the act itself, we were obliged to give up first impressions ; and upon a view of the different acts in pa-ri materia, we have no hesitation in saying, the construction of the act of 1758, as given to it by the court of appeals of Virginia, in the case of Turner vs. Turner, reported by Washington is correct.

Whether the possession of the widow Sullingsr, and of Gaunt, after marriage, was under old Mr. Rollins in his lifetime, and under his will, after his death ; or whether the defendant hath title in right of his wife, or a-gainstall the world; is not for us to say, judicially, in this 0-' O O S ¾⅜ •s g fco ⅞- 0 , ⅜-rK M, & o 0 5⅛ sr,; 
      
       The Chief Jvstick difiented from this decifion.
     