Green vs Botts, 3 B. Mon 196

Judge Ewing delivered the opinion of the Court. This is an action of replevin brought by Green against the Sheriff, for levying on Flora and her two children, as the property of Bruin, the son-in-law of Green. If Green gave the slave Flora to his daughter, or her husband, Bruin, in that case, she and her increase were liable to be levied on and sold in satisfaction of Bruin’s debts, no matter how short a time they remained in his possession.

But if Flora was loaned.or hired only by Green to Bruin or his wife, or otherwise placed in their possession, w.ith a reservation of title and right to take them back by Green, at his will and pleasure, then no less than a continued pos. session for five years in Bruin, or those claiming under him, is made fraudulent by the statute, so as to subject them to the payment of Bruin’s debts.

A temporary change or interruption of the possession, privately made and for a short period, and under a dubious claim of property or ownership by the loaner, would not be deemed such an interruption of the possession as would prevent the operation of the statute or save the property from the claims of creditors.

But a change of possession from Bruin to Green, whether by the consent of the former or not, before the expiration of the five years, and a public continuance of possession, by the latter, for months, under the exercise of ownership in the property, as appeared in evidence in this case, was such an interruption to the continued possession as would save the slaves from the denunciation of the statute, or from being subjected to Bruin’s debts, unless they remained continually in the possession of Bruin, for five years next after they were permitted to return to his possession.

The opinions expressed by the Circuit Court in withholding and giving instructions, being inconsistent with these views,,and misleading to the jury, the judgment is reversed and cause remandedj that a new trial may be granted without costs.

Cavan fy Coa: for plaintiff: Payne <£• Waller for defendant. “A temporary changeofpossession, privately and for a short period, and under a dubious claim of ownership by the. lender, would not be such a change of the possession as to prevent the operation of the statute.” — Tho’ a possession taken bythelender and publicly held, whether hy consent of the loanee or not,for months, will prevent the operation of the statute.