Washington County NcArchives Court.....John Skinner, Samuel Skinner V. 1819
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 4, 2009, 6:43 pm

Source: Nc Reports
Written: 1819

Samuel Skinner, executor of the last will of Evan Skinner, dec'd, v. John 
Skinner

From Washington

November Term 1819

Construction of the 3d section of the act of 1806, relative to gifts of slaves.

The words "Every person claiming title to any slave or slaves, by virtue of 
any parol gift heretofore made, shall commence and prosecute his or her suit 
for the same, within three years from the passing of this act, otherwise the 
same shall be forever barred," mean that the remedy shall be barred, and not 
the right.

Detinue for sundry negro slaves. Pleas—non detinet, and statute of 
limitations. Replication — act of 1806, ch—.

In 1794, Evan Skinner, the testator, made a parol gift of a negro girl named 
Bet to his son, the Defendant. Bet had issue after 1794, Jim, Agg, March, 
Candis, Wilcox, John, Clarissa and Frank; and she and her issue remained in 
possession of the testator until his death, he acknowledging that they were 
the property of the Defendant. The negroes came to the possession of the 
Plaintiff, who was appointed executor of the, last will of Evan Skinner, and 
he as executor, hired to the Defendant the negroes Bet, Jim, John, Clarissa 
and Frank. Before the term of hire was expired, the Defendant got into his 
possession the other negroes, Agg, March, Candis and Wilcox, and the term of 
hire having expired, he refused to return to the Plaintiff any of the negroes, 
setting up a claim to them under the parol gift made in 1794. The Plaintiff 
brought an action of detinue to recover the negroes. The Defendant 
pleaded, "the general issue, and statute of limitations." The plaintiff 
replied, "the act of 1806, ch. —."

Upon the trial, the presiding Judge charged the Jury, that as to the negroes 
Bet, Jim, John, Clarissa and Frank, the Defendant was estopped to deny the 
Plaintiff's title, he having come into the possession of them by hiring them 
from the Plaintiff; that therefore a verdict must be given for the Plaintiff, 
as to them. That, as to the other negroes, the gift from Evan Skinner to the 
Defendant being valid, the Plaintiff was not entitled to recover. That the, 
act of 1806 barred the action and not the title; and, as the Defendant had 
obtained the peaceable possession of those negroes, and without any contract 
with the Plaintiff, his possession ought not to be disturbed in this suit. The 
Jury gave a verdict as directed by the Court, and the Plaintiff having 
obtained a rule for a new trial, and the rule being discharged, the Plaintiff 
appealed to this Court.

Henderson, Judge: I have labored in vain to discover a substantial difference 
in the wording of the act of 1806, respecting the limitation of time within 
which actions shall be brought on parol gifts of slaves theretofore made, and 
our common act of limitation of actions; and the construction uniformly put on 
the common act of limitations, being that it affects the remedy only, and not 
the right, or that possession aids only in repelling a claim, and not in 
showing a right, I am constrained to put the same construction on the act of 
1806. But I well remember, when on the Circuit Bench at Person Superior Court, 
I decided that the act of 1806 barred the right, and not the remedy only. I 
then thought, the construction right; but on a full examination, I am induced 
to think I was wrong. I think the construction which I feel constrained to put 
upon the act, fraught with evil consequences; but I cannot make the law. These 
evil consequences, in all those cases where an action of replevin will lie, 
may be avoided by bringing that action. In it the Defendant or avowant becomes 
the actor, and the Plaintiff may plead the statute of limitations to his 
claim. The rule for a new trial must be discharged, and the judgment of the 
Superior Court affirmed.

Hall, Judge: It is not easy to conceive for what purpose the third section of 
the act of 1806, ch..., entitled "An act declaring what gifts of slaves shall 
be valid, and for the prevention of frauds," was inserted. I think the act of 
limitation, passed in 1715, answers the same purpose. The act was made in 
reference to a donee out of possession. It declares "that any person claiming 
title to any slave by virtue of any parol gift heretofore made, shall commence 
or prosecute his suit for the same within three years from the passing of that 
act, otherwise the same shall be forever barred." If the question be asked, 
for what shall he prosecute his suit, the answer is, for the slave to which he 
claims title. If the suit be not prosecuted within three years, what is to be 
barred? The answer is, the suit, which shall be brought after three years.

If is be said that the title shall lie barred, it must also be said that, the 
suit was brought for the title of the negro, and not for the negro. This 
construction will not suit the phraseology of the act. The Legislature might 
have intended to take away the right as well as the remedy; but if they have 
not so expressed themselves, we cannot do it for them. If this act has no 
other effect than the act of limitations, passed in 1715, we may reasonably 
suppose that the framers of it intended something else; but on that account we 
are not at liberty to guess at that intention, and carry it into effect, 
because it is our duty to judge of laws that are made, not to legislate. If 
there had been no acts of limitations before the one in question, I think 
there could be no difficulty in giving a construction to it; and I think the 
same construction ought to be given to it, notwithstanding the existence of 
that act. It does not appear to me that there are any words in the act of 
1806, that contemplate a case like the one under consideration. We surely 
cannot collect from the act, that a longer possession than three years should 
work on indefeasible title in the possessor, but only that it should bar the 
remedy: and the remark may go for as much as it is worth, that the word bar is 
technically applied to actions and suits. 

The rule for a new trial must be discharged.


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