In Olds v. Powell, 7 Ala. R. 652, it is said, “ Wheu property is sent home with a new married couple by the parents, it will be presumed to be a gift, unless at the time a less estate is declared or limited. Whether it be a gift, or mere loan, is a question of intention; any fact therefore which affords evidence of such intention, is admissible as part of the res gesta.” [See also, 4 McC. Rep. 251; 16 Pick. Rep. 62; 2 “Bay’s Rep. 528; 3 Hen. & M. Rep. 127; 1 Hayw. Rep. 2; 2 Id. 66, 97.] In order to warrant the presumption of a gift in such case, it is not necessary that the property be sent to the residence of the married pair; it is enough if it be delivered to the husband, or suffered to go into their possession. [3 McC. Rep. 207, 506; 2 N. & McC. Rep. 93.] So property in a slave, permitted by parents to go into the possession of a daughter, on her marriage, vests in the husband of the daughter. [4 McC. R. 228.] In Davis v. Webb, 1 McC. Rep. 213, it was held, that where there was an acceptance and continued possession of property *504which a parent permitted to go into the possession of his son or daughter, upon his or her marriage, it may, by lapse of time be construed into a gift, though originally -declared to be a loan. And in Keene v. Macey, 4 Bibb Rep. 35, it was decided, that if a father deliver slaves to his son-in-law upon marriage, without avowing the purpose of the delivery, and the son-in-law retains possession for five years, it should be left to the jury to determine whether it was intended as a gift or a loan. [4 Bibb’s Rep. 35. See also, 1N. & McC. R. 221.]
In the case at bar, it is apparent from the proof, that the complainant was quite advanced in life, with but two children, and the prospect of no more,, that he was the proprietor of a large estate — amply able to bestow bounty upon his daughter far beyond the value of the slaves in question; that the defendant and his wife spent the greater part of their time at the complainant’s house, during the six or seven months they sojourned in Virginia after their marriage, and upon leaving the State the slaves were delivered by the complainant to the defendant, to be taken to the new home which the latter and wife proposed ' to make in the south west. These facts impose upon the complainant the necessity of repelling by proof the inference that the delivery was intended as a gift, and still retained the title to the slaves. This he proposed to do, proving that the defendant executed a writing acknowledging their receipt, and stipulating for their return. The defendant admits that he gave a receipt, but denies that its import was such as the complainant alledges; thus throwing upon the latter the onus of sustaining the allegation of his bill.
Where relief is sought in the cases of supposed lost instruments, it is said, that as a guard upon the preliminary exercise of jurisdiction, an affi davit of the loss of the instrument, and that it is not in the posssession or power of the plaintiff, is indispensable to sustain the bill. But to maintáin the suit it is necessary, if the loss Is not admitted by the answer of the defendant, that it should be established at the hearing of the cause, by competent and satisfactory proof. [1 Story’s Eq. § 88.] Here the defendant has not only denied, upon information and belief, that the receipt which he executed *505was lost, but has proved that the complainant repeatedly spoke of it as in his possession, years after the alledged loss. To countervail the effect of the answer and this proof, the complainant adduced no other evidence than his preliminary affidavit, which the authority cited, shows, was inadmissible at the hearing.
Again: the testimony in the cause falls far short of establishing that the slaves were delivered as a loan, or that the complainant retained his right to. them, or that the defendant stipulated for their redelivery on demand, or upon a contingency or otherwisé. The extracts relied on from the defendant’s letters do not contain an admission or acknowledgment, direct or indirect, that the slaves were the property of the complainant. These, as well as all the testimony are altogether consistent with an absolute property in the defendant. This being the case, it is clear that the complainant is not entitled to the relief which he seeks.
The defendant has not only denied by his answer every thing of which the complainant’s right to recover may be predicated, but he has shown by the complainant’s letters, and the testimony of several witnesses, repeated admissions that the slaves were his property — had been given to him by the complainant. It is unnecessary to consider more particularly the evidence on either side; for it is so explicit and uncon-tradictory in its essential points as not to require argument to illustrate it.
There is certainly nothing in the record from which it may be assumed, that the defendant’s wife, during life, or the offspring of the marriage since her death, had a separate or exclusive interest in the slaves. If such a hypothesis be well founded, it may be quite enough to say that the bill was not framed with a view to secure the supposed interest of any one else than the complainant himself, and the dismissal of the bill cannot prejudice the rights of third persons.
We are relieved by the view taken, from the consideration of the question, whether, if the transaction brought before us was a loan, it would not, at this distant day, be presumed from complainant’s acquiesence in the defendant’s possession, *506that he had abandoned his right to the slaves, and thus made it a gift. It is profitless to examine the objections to the. equity of the bill, or any other point raised at the argument. We have but to add, that the decree is affirmed.