plaintiff, Thompson, by some means obtained possession of the negro in January, 1835, and lodged him in jail for safe keeping, directing the jailor n'ot to lock him up, to give him the liberty of the yard, and every indulgence. The defendant on the same day lodged a detainer, directing the jailer not to give him up to the plaintiff, not to lock him up, and whip him if necessary. The plaintiff did not apply for him afterwards, but the jailor deposed that he would not have given him up if he had. Ou the '23d February, 1835, the plaintiff commenced this action, and on the ftth March, the negro escaped from jail. The pleas were, not guilty, and the statute of limitations.

“1st. 1 held, and so charged the jury, that the exception in favor of femes covert, allowing them five years, operated in favor of Mrs. Thompson, and that the plaintiffs are not barred in four years.

“2d. It was clear, that the conveyance, purporting to be a bill of sale, was voluntary; the plaintiffs themselves had, in a bill filed, called the paper a deed of gift, and Connelly, the donor, deposed that there was no consideration paid or received.

“3d. Was the gift duly perfected by delivery of the negrd, or what would have been equivalent, the delivery of the conveyance ? On this point the testimony was conflicting.

“William Burrell deposed that Connelly lived with Murray before -his death; that the negro was frequently at Murray’s, and was considered and called Murray’s property; abroad, he attended Connelly, at home, Murray’s family.

“James Duffie said Connelly and Murray lived together, and the negro was about the yard; understood and considered him the property of Murray; heard so from both parties; heard Connelly say he had given him the negro, and did not own any property ; their premises were adjoining, and communicated by a gate. And on his cross-examination by 'the defendant’s counsel, Murray told him Connelly had done something-handsome for him, had given him two negroes.

“On the part of defendant, Connelly testified that he never lived with Murray; that he, Murray, never had the negro in his possession, and if he wished the use of him, always applied for it; that the deed was never delivered to Murray, and was not intended to be, unless he was pressed by his debts. Murray so understood it, and never set up any claim to the, property ; he came one day into the shop and got the deed out of the desk, and told him afterwards he had put it away safe enough, and did not consider it of any account. Thompson seized the negro and tried to sell bim.

“Mrs. Murray, another daughter of Connelly, deposed, that her father always had possession of the boy until Murray’s death, after that he had lived with her, and still had the negro in possession.

“The circumstances attending the execution of the deed of gift, were stated by these two witnesses. Connelly said he was then in debt, had been burnt out at the fire, and was apprehensive of a bond he had signed as security for Mr. Gannahan, who had failed; was endorser on some notes for M’Guire, on which judgment was obtained in 1829, and not yet paid. He made the deeds, this and one to his daughter Elizabeth, with the intention of securing something to'himself in case these debts should come against him. He owed the debt at the time, and before the bills of sale or deeds of gift were made; owed for money borrowed after the fire. Owed him at that time the largest portion of the judgment which he confessed. Mrs. Murray said, when the deeds were executed her father said they were not intended to take effect until after his death, as he was going to sea. Mr. Perry, who drew Murray’s will, deposed that Murray did not enumerate this negro with his other property, and made no disposition of him. Mr. Elford stated that Connelly confessed a judgment to him for $1600 or $1700, to protect him from some debts he owed as security. This Mr. Elford had entered as satisfied, when Conuelly was sued.

3d. The question as to the delivery of the negro, or the delivery of the deed, was submitted to the jury with proper instructions. The counsel, in his second ground, has mistaken what was only a suggestion, by way of argument, for a positive instruction. The deed was obtained by Murray clandestinely ; and this was a strong argument that it had not been delivered ; but the donor permitted it to remain in his custody ; he had also recorded it, which is of itself, strong, if not conclusive, evidence of delivery; and but for the recording, I should incline to think the weight of evidence was against the delivery of the deed.

4th. The next question was, whether the deed was fraudulent and, void as to creditors; and on this point the counsel has mistaken, in part, the charge. I instructed the jury, that the defendant, to avoid the deed, could not avail himself of other debts which had been paid off; only such creditor as was delayed, hindered, or defrauded, either existing or subsequent, could impeach the deed ; that however fraudulent, as to existing debts, if they were paid off, the deed is good. That if the defendant was an existing creditor, and all the donor’s property was conveyed, and he has been, or will be, hindered or defrauded of his debt, the verdict must be for the defendant; that as the defendant also claims to be a subsequent creditor, it was material to enquire whether the donor continued in possession, as in that case the conveyance was void. But if there were no existing debts that remained unpaid, and the possession has accompanied the deed, then it is good against the subsequent creditor, unless made with a view to future indebtedness; in that case it was a question of intention for the jury. But if the donor remained in possession, it is void against the subsequent creditor, notwithstanding the recording. On ,the whole, I thought the defendant ought to have a verdict;. But the case was submitted to the jury on the facts. I think ■the evidence, as to the delivery of the negro, was very slight. That he was in possession of Connelly from the death of Murray, until January, 1830, was clearly^roved; this, in connection with the fact that Murray made no disposition of him by will, would afford a strong presumption that the deed was colorable merely. The jury found for the plaintiff the full value of the negro. If the title was with the plaintiff, I thought the defendant liable for the full value. His acts while the negro was in jail clearly constituted a conversion, and as there was no proof that the negro .came again to the possession of the plaintiff, I thought the defendant liable .for the full value. The defendant appeals on the grounds annexed.”

1. Because his Honor charged the jury, that Jane Thompson, one of the co-plaintiffs, being a feme covert, the action in behalf of the estate of •Murray was not barred until five years after the cause of action had occurred.

2. Because his Honor charged the jury, that the donor’s not recovering possession of the deed in dispute, from Murray, was equivalent to a delivery by him; whereas, it was clearly proved, that the possession of the deed was obtained fraudulently, and kept by force in opposition to the will of the donor.

3. Because his Honor charged the jury, that only creditors existing at the time a voluntary deed is made, could impugn its validity, and if these .debts are paid, that the deed is good as to all the world.

4. Because his Honor charged the jury, that the defendant was liable for the value of the slave in dispute ; whereas, it was proved that he was tqken out of his possession by the plaintiff, and that he has never had him in possession since.

5. Because the fraudulency of the deed was clearly established, and the verdict of the jury was contrary to law and evidence.

6. Because, by the deed relied on by the plaintiffs, no interest in the property conveyed is transmitted to the plaintiffs as representatives of the testator, John Murray.

7. Because it was not proved, at the trial, that the estate of John Murray, the testator, had any property in the slave in dispute.