Eccleston, J.,
delivered the opinion of this court.
This is an action of replevin, brought on the 24th of February 1857, by the appellee against the appellants, for two negro girls, Betty and Nelly. The defendants pleaded non cepit, property in themselves, property in a stranger, and limitations. The cause was tried upon issues joined on those pleas.
The facts, in regard to which there seems to be no controversy, aye the following:
Aquila Beall, who died in the year 1840, was the husband .of the plaintiff; and in his life time, made a gift of two negro .slaves Eliza and Jenny, with their children and grand-children, ,to his daughter Amelia H. Beall, when she was quite young. Those negroes are now dead, but each of them had, at least, six children. Amelia intermarried with Leonard H. Chew, the defendants’ testator, in the year 1835. But, some four or five years before this marriage, she gave and delivered negro Maria, one of the children of the above named Jenny, to her mother, .the present plaintiff.
What follows is to be considered as a statement, taken from jthe evidence offered on the part of the plaintiff, but not conceded to be true, in all respects, by the defendants.
Negro Maria, it is said, was given to the plaintiff for her sole and separate use; that in 1836, about a year after his marriage, L. H. Chew was about to sell the children of Maria, with other negroes, descendants of those originally given by Aquila Beall to his daughter Amelia, and Maria wishing to go with her children, the plaintiff was persuaded by Chew and wife, to take Jane and her child John in exchange for her sister Maria, in order that the latter might not be separated from her children. The plaintiff consented to the exchange, and Jane was delivered to her by Chew and wife, for the plaintiff’s sole and separate use, in lieu of and in exchange for Maria, who was delivered up to Chew and wife, and sold by them, with other negroes, to a Mr. Chew of Mississippi.
The negroes now in dispute are the children of Jane, born after the exchauge, and have been brought up and claimed by the plaintiff as her property. After L. H. Chew made sale pf the negroes, as above stated, his wife was permitted by hey [359]*359another to have the service of some of Jane’s children, but the hitter always claimed them as her property.
The grounds on which the plaintiff bases her right to recover the negroes in contest, are, that negro Maria was given and delivered to her for her sole and separate use, by her daughter Amelia, who subsequently became the wife of L. H. Chew. That after the marriage, the plaintiff, at the instance and persuasion of Chew and wife, consented to exchange Maria for her sister Jane, who was thereupon delivered to the plaintiff for her sole and separate use, in lieu of Maria. That the negroes in dispute are the children of the said Jane, and were born after the exchange.
The defendants urge sundry objections to the plaintiff’s right to maiutaia the suit. They say, that Maria was not' given to her for her sole and separate use, but absolutely, and" she being then a fúme covert, the title vested in her husband. That conceding the gift to have been for her separate use, she' took only an equitable estate, the legal estate vesting in her husband as trustee, for her. And as her husband was living at the time of the alleged exchange, the plaintiff, without his concurrence, had no power or authority to sell, exchange or dispose of Maria, no proof having been produced, showing that, by the terms of the gift of Maria to the plaintiff, she was authorized to dispose of her. This being so, the alleged exchange could pass no title, in Maria, to Chew and wife, and consequently Mrs. Beall acquired no title to jane, it is said, ’ moreover, that admitting she did become entitled to Jane by the exchange, it was merely an equitable title, the legal estate vesting in Mr Beall as trustee. And although he died in 1840, - yet the plaintiff has not such an estate in the negroes in dispute, as will enable her to maintain this action at law.
Having presented some of the grounds taken by the re-' spective parties, we will now state our views in relation to the' same.
There can be no doubt that, prior to our act of 1842, if a negro slave was given, absolutely, to a married woman, the' title would vest in the husband.
If, as contended by the plaintiff, she received a gift of Maria,' [360]*360for her sole and separate use, and the gift contained no restriction, upon the right of alienation or disposition, and no, particular mode of alienation or disposition was prescribed/and the alleged exchange of Maria for Jane, was made between the plaintiff and Chew and wife, in virtue of which, Maria was received by Chew and wife, and sold by him for the purpose of being taken to Mississippi, the title of the plaintiff to Jane or her children, born after the exchange, cannot be successfully resisted, upon the ground of a supposed want of authority in the plaintiff, to make the exchange.
In reference to the authority of a feme covert, to dispose of personal property, given simply to her separate use, without restricting her'power of disposing of it, or prescribing the nnpde in which that power is to be exercised: See Hill on Trustees, 421, 425, (Ed. of 1854;) 1 Sandess on Uses and Trusts, 380, (Ed. of 1855;) Macqueen on Husband 7 Wife, in 66 Law Lib., top paging, 87, 94, 95.
Cooke vs. Husbands, et al., 11 Md. Rep., 506, is a case in equity, in which it was made a question, as to what was the effect of a deed executed by two married women, professing to dispose of property devised by their father, in trust, for their separate use. The trustee united in the deed but their husbands did not. It was there said: “Following the decisions, which, under our institutions, it is the duty of this court to respect as authority, we are of opinion, that a feme covert may act in reference to her separate estate as a feme sole, where the settlement contains no limitation on the subject, on the principle that the jus disponendi accompanies the property, unless restrained in terms, or by the manifest intention of the instrument.”
A parol gift of a negro slave if accompanied with delivery, is valid; and we are not aware of any principle, which, prior to our act of 1842, would prohibit a separate use, in such property, for a married woman, from being given by parol, by her daughter, the negro being delivered at the time of the gift. Macqueen on Husband & Wife, 292, 293, in 66 Law Lib., 86. 3 G. & J., 508, Carroll vs. Lee, Adm’r of Lee. Nor do we think it was necessary to the validity of the alleged exchange, [361]*361that it should have been reduced to writing. Whether the proof, properly in the cause, shows there was an instrument of writing on that subject, and if it does, whether its loss and contents have been established, are questions which may be more appropriately considered in the subsequent part of the case.
The defendants, as we have seen, contend, that conceding the plaintiff acquired a separate use in Jane, and her after bom children, it was merely an equitable estate, the legal estate being in her husband, as her trustee, and, therefore, although he died long before this suit was instituted, she is not entitled to recover in this action at law.
Admitting that, with a view of protecting the separate estate of the wife against the husband’s marital rights, and against his creditors, where the estate has been created, simply for the separate úse of the wife, and no trustee is named, the husband is to be considered as trustee for the wife,' there can be no good reason, why, after the termination of the coverture, by the death of the husband, and the wife surviving, she should not be regarded as having the right of possession.
In this instance, the husband died in 1840. The suit was brought in 1857. From the time of the exchange, in 1836, until the death of Jane, she was held by Mrs. Beall as her property, without objection, says one of the witnesses. And there is no proof whatever, that the plaintiff’s right of possession of Jane, or of her children, was ever resisted, or in any manner denied or interfered with by Mr. Beall, in his life time, of by his personal representatives, or by any person claiming through him, since his decease. Under such circumstances, and inasmuch as a right of possession is sufficient to support an action of replevin, we do not think the position assumed, by the defendants is correct.
The testimony of Caroline Mackall, a witness for the plaintiff, was taken under a commission. In her answer to the third interrogatory, she states, the gift of negroes Eliza and Jenny, by A. Beall to his daughter, and the sale of negroes to a Mr. Chew, of Mississippi, by Leonard Chew the husband of Amelia. The witness then says, “Before the marriage of [362]*362Amelia H. Beall to Mr. Leonard Chew, she gave negro Maria' one of the children of Jenny, to her mother the plaintiff, Mrs.Grace Beall, absolutely and for her own use. Among the negroes sold by Mr. Chew were some of Maria’s children.Maria wished to go with them, and Mrs. Beall was persuaded by Mr. Chew and his wife, to take Jane in exchange for Maria her sister, in order that Maria might not be separated from her children. Mrs. Beall consented to the exchange, and Jane was delivered to her by Mr. Chew and his wife, to be held as-her property in the stead of said negro Maria. (The exchange' and the absolute right of Mrs/ Beall to negro Jane as her separate property, was attested by a written paper signed by both Leonard Chew and his wife Amelia, and by them delivered to' Mrs. Beall.) 1 never saw the said paper, and have no further' knowledge of it than this, that I have often heard Mrs. Beall state, in the presence of Mrs. Chew her daughter, that she and’ her husband had signed and given to her such a paper, and regret the loss of it, and at no time did Mrs. Chew deny, that she had given Jane to her in exchange for Maria, and that she had given such a written paper to her in attestation of it.”
In response to the 4th interrogatory, this witness, says, “My' answer to this has been somewhat anticipated, in my reply to‘ the preceding or third interrogatory. Amelia H. Beall made’ no sale, but before her marriage to Leonard Chew, did make' a gift of negro Maria, to her mother, Mrs. Grace C. Beall, and-delivered said negro to her. She retained the possession of-Maria, claiming her as her own, up to the time of the sale-made by Mr. Chew, subsequent to his marriage with Amelia,of the children of Maria, and then surrendered her in exchange-for negro Jane, at the instance of Mr. and Mrs. Chew. Jane' from that time until her death was held by Mrs. Beall as her property, without objection, so far as 1 ever knew. There' was no paper writing within my knowledge, accompanying; the original gift or the exchange, further than I have before-mentioned. The children in controversy in-this cause are, to my knowledge, the children of the said negro Jane. I never-had any such paper in my possession. I have known Mrs.Beall to search diligently for the paper spoken of in my answ-er[363]*363io the 3rd interrogatory, without being able to find the same. ‘The negroes in controversy, being the children of Jane, were bom after the exchange for Maria, and have been brought up and claimed by Mrs. Beall as her property. After Mrs. Chew lost her negroes, that, is, after they were sold, Mrs. Beall permitted her to harm the service of some of Jane’s children, but always claimed them as her own.”
Aquila Beall was the uncle of this witness, her mother being his sister.
The first bill of exceptions shows, that at the trial, the plaintiff offered to read in evidence to the jury the deposition of Caroline Mackall, taken under the commission. But the defendants’ counsel prayed the court to exclude from the jury, so much of said deposition contained in the answer to the third interrogatory, as is included in brackets, the same being as follows: “[The exchange and absolute right of Mrs. Beall to negro Jane, as her separate property, was attested by a written paper, signed by both Leonard H. Chew and his wife Amelia, and by them delivered to Mrs. Beall.]”
The ground stated why this evidence should be excluded, is, “Because it is not competent or admissible for the witness to speak of the contents, operation or effect of said paper, as the information she had, in relation to said paper, was derived from conversations bad with the plaintiff and Mrs. Chew, after her marriage with the testator of the defendants, and because the same is merely hearsay testimony.” But the court overruled the prayer and allowed the testimony objected to, to be read to the jury as part of said deposition; to which overruling and allowance the defendants excepted.
By referring to the commission and return, as contained upon certain pages of the record, this exception includes the whole testimony of Caroline Mackall.
The second exception:
After the evidence detailed in the preceding bill of exceptions, which is made part of this exception, had been read to the jury, saving and reserving the last sentence, in the answer of Caroline Mackall to the third interrogatory, commencing with the words: “Í never saw,” and ending with the words? [364]*364“in attestation of it,” which were excluded by the court, and not excepted to by either side, the plaintiff proved by Mrs. F. Bowie, that Aquila Beall, the husband of the plaintiff, made a gift of two negroes, Jenny and Eliza, to their daughter Amelia H. Beall, when she was a small girl. That Aquila died in April 1840; that Amelia H., about four or five years before her marriage to the testator of the defendants, which took place in October ] 835, gave toiler mother, the plaintiff, for her sole and separate use, negro Maria, then about sixteen years of age; that in 1836, L. H. Chew, being about to sell the children of Maria to one Frisbv Chew, of Mississippi, he and his wife made an exchange with the plaintiff for negro Maria, and gave and delivered to the plaintiff, for her sole and separate use, in lieu of arid in exchange for said woman Maria, a woman named Jane and her child John, then the property of Leonard H. Chew; and further proved by the said witness, that the negroes in controversy in this case, were the children of said negro woman Jane. Whereupon, the defendants prayed the court to grant the seven following instructions:
1st. “If the jury find from the evidence in this case, that negro Maria was given by Amelia JEJ. Beall to her mother, the plaintiff, her husband A. Beall being then alive, although they may infer the gift for her sole and separate use, and that the plaintiff exchanged, said negro Maria with Amelia H. Beall, and her then husband, L. H. Chew, in 1836, while the husband of the plaintiff was alive, for negro woman Jane, that then the title of the plaintiff is not such a one as could be litigated in a court of law, and that the plaintiff is not entitled to recover in this action.
2nd. “If they further find from the evidence in this cause, that the negro woman Jane, who is the mother of the two negroes in controversy in this case, was given and delivered by Leonard H. Chew and Amelia H. his wife, to the plaintiff, during her coverture with the said Aquila Beall, that then the title to the negro woman Jane and her increase, vested in the said Aquila Beall, and the plaintiff is not entitled to recover in this action.
3rd. “That if the jury believe from the evidence in this [365]*365cause, that at the date of the alleged exchange of negroes Maria and Jane, the husband of the plaintiff was alive, then the plaintiff had no legal power to exchange Maria, or confer any title to her, and consequently the alleged exchange for Jane, in 1836, was invalid, and gave no title to the plaintiff in negro Jane, and that the wife had no power.
4th. “That if the jury find from the evidence in this cause, that at the date of the alleged gift and exchange of negroes Maria and Jane, the plaintiff was a feme covert, then she had no legal power tg transfer the trust estate vested in her by the said alleged gift, and, consequently, the plaintiff is not entitled to recover.
5th. “Thai if the jury find from the evidence in this case, that at the date of the alleged gift and exchange of negroes Maria and Jane, to the sole and separate use of the plaintiff', she, the plaintiff, was a feme covert, that then she is not entitled to recover in this action, unless they further find, that at the time of the alleged gift or exchange, the power of disposing of the said property by the said plaintiff, was conferred by the terms of the original gift of Maria, or by the terms of the exchange of negroes Jane and Maria.
6th. “That if the jury find from the evidence, that at the date of the alleged gift of Maria, to the plaintiff, her (the plaintiff’s) husband was living, then the title to the said Maria, vested in the plaintiff’s husband, and she is not entitled to recover in this action.
7th. “That if the jury believe from the evidence, that at the time of the alleged exchange of Maria for Jane, the husband of the plaintiff'was alive, then the plaintiff'is not entitled, under the pleadings and evidence in this cause, to recover.
All these instructions were refused by the court, and the defendants excepted.
Third exception:
After making the evidence contained in the two preceding bills of exceptions part of this, it then states, that “the defendants offered to prove, by an examined copy of the assessors’ books of said county, of the assessment and valuation of property, made in compliance with the act of January session, [366]*3661852, that the negroes in controversy in this suit were not upon the list of negroes assessed to the plaintiff, and further offered to prove, by an examined copy of the assessors’ books of said county, of the assessment and valuation of property,, made in compliance with the act of January session 1852, that the negroes in controversy in this cause, were assessed to the said Leonard H. Chew, as his property.”
To this evidence the plaintiff objected. The court sustained the objection, and the defendants excepted.
Fourth exception:
It is stated in this exception that, “the plaintiff offered the evidence taken under a commission heretofore issued,” (which is the evidence of Caroline Mackall, as appears from the reference made in the exception to the commission and return.) And the-exception then says: “And also proved by Mrs. TV Bowie, that the said gift and exchange spoken of in the testimony taken under the commission, was for the separate use of Mrs. Beall, the plaintiff. The defendants then proved, that at the date of the alleged gift of Maria, and exchange of Maria for Jane, Aquiia Beall, the husband of the plaintiff, was living.”
The exception then contains three prayers, presented by the defendants:
1st. “That if the jury believe from the evidence, that at the date of the alleged exchange of Maria and Jane, the husband of the plaintiff was alive, then the plaintiff had no legal power to exchange Maria for Jane, or confer any title to her, and con.sequently the alleged exchange for Jane, in 1836, was invalid, and gave no title to the plaintiff in negro Jane; and that consequently the plaintiff could derive no title by said exchange to Jane, and that the wife had no proper—
2nd. “That if the jury believed, that at the date of the alleged gift and exchange of Jane and Maria, the plaintiff was a feme covert, then she had no legal power to transfer the trust estate, vested in her by the alleged gift, and consequently she is not entitled to recover.
3rd. “That if the jury find, that at the date of the alleged gift and exchange of Maria and Jane, to the sole and separate [367]*367use of the plaintiff, she was a feme covert, then she is not entitled to recover in this action, unless they further find, that at the time of the alleged gift or exchange, the power of disposing of the said property by the plaintiff, was conferred upon her by the terms of the original gift of Maria, or by the terms of the exchange of Jane and Maria.
The court refused to grant either of these three prayers; to Which refusal the defendant excepted.
Fifth exception.
This exception is in the following words.
“At the trial of this cause, the plaintiff, to maintain the issue on her part joined, and for the purpose of proving the loss and contents of the instrument of writing, executed by Leonard H. Chew and Amelia II., his wife, attesting the exchange' with her, by them, of negroes Maria and Jane, produced and Swore the plaintiff, who stated, that an instrument, attesting the exchange of said negroes, between her and the said Leonard H. Chew and wife, was executed by them and by them delivered to her; that the exchange was to her separate use,- and that she took possession of said paper, but that the same has been lost or mislaid, and that after diligent search by her among her papers, she has been unable to find the same.— The defendants objected, that there was no sufficient evidence in this cause to establish the loss or contents of the said paper,- and prayed the court to instruct the jury, that if the jury believed from the evidence, that the exchange of Maria by Chew and wife, or with the plaintiff for Jane, was evidenced by writing, then, that no parol testimony is admissible to establish said exchange, there being no sufficient proof, that a sufficient-search has been made for said paper to admit secondary evidence of its contents. But the court overruled said objection.’ and refused said prayer. To which overruling and refusal of the court, the defendants by their counsel except.”
There are seven prayers in the second bill of exceptions and three in the fourth. Some of these prayers omit, any allusion’ whatever to any evidence, tending to show, that the original’ gift of Maria was for the sole and separate use of the plaintiff,- or that she acquired the sole and separate use’ of Jane by vN' [368]*368tue of the alleged exchange. ' Such prayers, in our opinion, were properly refused, where they asked the court to instruct the jury, that if they believed certain facts to exist the plaintiff was not entitled to recover, when, among the facts mentioned, the separate use of the plaintiff was entirely omitted, and no question submitted in reference to any evidence on the subject; The jury bright have believed the enumerated facts to exist,- and still it would not have béen proper to instruct them to find a verdict against the plaintiff,- on such belief, in the face of evidence tending to show the existence of a sole and separate Use in her,- in regard to the negroes.
The third prayer in the second exception, and the first prayer in the fourth, do not seem fully to express what we suppose was designed, but taking them as explained by the defendants’ counsel they ought not to have been granted.
In- view of the evidence tending to prove the sole and separate ttse of the plaintiff, in reference to the original gift and the subsequent exchange, notwithstanding both transactions occurred in the lifetime of the plaintiff’s husband, still,.we think,-all the prayers in the second and fourth exceptions were properly refused. They are inconsistent with the principles which we have announced in the previous part of this opinion,- when giying our views in relation to the grounds taken by the parties: which will be found preceding our statement of the testimony of Caroline Mackall, as taken under the commisSion.
There was no error in rejecting the evidence offered by the defendants in the third exception. It does not appear from the examined copy of the assessors’ books, or from any other proof offered, or proposed to be offered,- either that the list of negroes assessed to the plaintiff was signed or sworn to by her, or that the list of those assessed to Leonard H. CheW was signed or sworn to' by him. Nor does it appear the plaintiff had any knowledge, that the negroes in contest were assessed to L. H. Chew. We are aware, that the Act of 1852 authorises the assessor to require such lists to be signed and sworn to ■by the party to be‘assessed, but the law does not make it obligatory upon- the assessor to require this to be done. And according to our experience, it is very frequently the case, in the [369]*369country, at least, that the lists are taken by the assessors without the signature or oath of the party.
In Cole vs. Hebb, 7 G. & J., 23, 24 and 43, certain negroes were in controversy, in an action of replevin, which negroes were, a woman, named Maria, and her issue.
Among other proof produced, in defence, Was the inventory of John Cole, returned by the defendant, as his administrator, in which Maria was returned and appraised as a part of the property of said John Cole. The defendant read to the jury the assessment lists of the property of said John Cole, and also of the property of William Guyther, returned to the clerk of the levy court of the county, by the assessor, and signed, one list by said John Cole, and one by Ann Guyther, the widow of William Guyther.
In the list of Cole’s properly, Maria, the woman in question, was mentioned, but she was not included in the list of Guyther ’s.
Heb'b, the appellee, was the administrator d. b. n. of Wm. Guyther.
The inventory and assessment lists, it appears, were read without objection, and consequently no question Was raised or decided, as to the admissibility of either.
The defendant, Cole, prayed the court to instruct the jury, that if they believed negro Maria was given in by the defendant’s intestate, to the assessor of the county, as his property, and was returned to the records as such, and also, that the said negro was not assessed in the assessment list, returned by said assessor at the same time, as the property of the plaintiff, or his testator, and also, that the defendant returned the said negroes as the property of his intestate, in his appraisement of said estate, to the orphans court, such facts were prima facie proof, from which the jury might infer the adverse claim of the defendant and of his intestate, and the knowledge of such claim by plaintiff, or his administrator. Rut the court refused to give this instruction, and the refusal was held to be correct, in the Court of Appeals. There it is said, “We concur with the court below, in their refusal of the appellant’s second prayer in the second bill of exceptions; the facts upon [370]*370which it is predicated, not being sufficient in law to authorisethe jury to impute to George Guyther, the executor, a knowledge of the existence of any of the facts, from which it was attempted to deduce his knowledge of the adverse claim of the appellant, or his intestate,-to the negroes in question. He was in no wise either a party or privy to the inventory or assessment lists relied on-” We do not perceive that this case can-be considered as an- authority, in support of the admissibility of the evidence,- offered in the third bill of exceptions, in the case before us..
In Hughes vs. Jones, 2 Md. Chan. Decisions, 186, there was a dispute, whether, about the year 1817, a negro, named-Isaac, w-as the property of Josiah Hughes, or of Jesse Hughes.
In addition to other evidence an examined copy from the assessors’ boobs, for the year 1817,-was offered. The copy purported to be a list of- the propertyof said Josiah, made for-the purpose of taxation, and was proved to have been signed by him. Negro Isaac was not upon it. Objection to the admissibility of this paper, as evidence, was made, upon the ground, simply, that it was only a copy. The chancellor overruled the objection, and whilst arguing the propriety of doing so, he says: “Besides this list, signed by JosiahHughes,-it appears,, by a list marked 2, and proved to be signed by Jesse Hughes, that in the same year, 1817, a negro boy, called Isaac, was assessed as his .property..”
It appears,-that each list in that case had been signed by the party, whose property it professed to contain. In the present-case there is no evidence, that either list was signed by either party. Moreover it has been said-,, by Miss Caroline Mackall,in her deposition, “that after Mrs. Chew lost her negroes, that is, after-they were sold, Mrs. Beall permitted her to have the service of some of Jane’s children, but always claimed themas her own.” Now, whilst the negroes were in the service of Mrs. Chew and her husband, by the permission of Mrs. Beall, Mr. Chew might have thought proper to have himself charged with the taxes upon them, without the least intention of claiming the negroes as his property.. He might very well-afford to pay the taxes upon- them,.whilst he enjoyed their-services* without being required to pay wages for them.-
[371]*371(Decided May 11th, 1859.)
If the questions, presented by the first and fifth bills of exceptions, had been decided by the court in favor of the defendants, the effect would have been to exclude all proof of the existence, loss and contents, of any instrument of'writing, in relation to the alleged exchange of Maria for Jane. The consequence of which would have been, to leave the gift and delivery of Maria, and the exchange of her for Jane, with the delivery of each, supported and sustained by the unimpeached and uncontradicted parol proof of Caroline Mackall and Mrs. Bowie. The rulings, therefore, against the defendants, in those two exceptions, did no injury to them; inasmuch as it must be supposed the parol proof of these two witnesses would be sufficient to convince the jury, that the exchange had been made. If, therefore, these two exceptions had been ruled in compliance with the wishes of the defendants, we cannot suppose the verdict would have been different from the one which was given.
Conceding then, (without deciding,) that the court erred in regard to the first and fifth bills of exceptions, we do not think the case should be reversed on account of those decisions.
Judgment affirmed.