Underwood v. Lane, 12 N.C. 173, 1 Dev. 173 (1827)

June 1827 · Supreme Court of North Carolina

12 N.C. 173, 1 Dev. 173

William Underwood v. Clarissa Lane & another.

From Randolph.

A judgment and execution were returned to the Justice by the con» stable ; afterwards, they both searched among the official papers of the former, but could not find them. The Justice and the Plaintiff in the judgment having removed out of the state, it was held, that proof of this search by the constable, entitled one claiming under the judgment and execution, to give parol evidence of their contents.

A bill of sale for a slave must be registered in the county where the vendee lives.

Trespass for taking a negro slave out of the posses-sion of the Plaintiff, tried before Norwood, Judge.

The Plaintiff claimed title to the negro under a purchase at a Constable’s sale, and should a pluries execution and sale, and a purchase by himself. But not being able to produce the judgment and former executions, in order to entitle himself to offer secondary evidence thereof, he called as a witness the Constable, who deposed, that he had returned to one Williams, the Justice. who granted the judgment, the paper on which the warrant and judgment were written, and also the prior executions — that he, with Williams, liad made two several searches among the papers of Williams, kept in a trunk containing all the papers on which he had acted officially, and the judgment and executions were not to be found — that Williams afterwards, at the request of the witness, searched again for them, and as he stated without success — that Williams, the Justice, and one McNeill, the Plaintiff in the judgment, had removed out of the state, and the latter was reported to be dead. — . Upon this testimony, the Judge thought the ábsence of the papers sufficiently accounted for, and permitted their contents to be proved.

The Plaintiff further proved, that the negro at the sale, was delivered to him by the Constable, and was afterwards taken away by the Defendants.

The Constable then stated, in answer to a question put to him by the Defendant’s counsel, that he had made to the Plaintiff a bill of sale for the negro, on which the Plaintiff’s counsel, protesting that on the facts of the case, no bill of sale was necessary to pass the title, and therefore he was not bound to produce one, yet produced that spoken of by the witness, and proved its execution. To this bill of sale, it was objected that the Plaintiff resided in Chatham, and the registration was in Randolph. To which it was answered, that as the Defendant had been in possession of the negro, the registration in the county where he resided and where the sale was made, was sufficient.

Tlie Judge held first, that no bill of sale was necessary to be shown, and secondly, if necessary, the registration was in the proper county, and the bill of sale was read.

A verdict being found for the Plaintiff, a new trial refused, and judgment entered on the verdict, the Defendant appealed.

Nash, for tiie Appellant, submitted the case without argument, no counsel appearing on the other side.

Ham,, Judge.

The rule for a new trial seems to have been obtained on the ground that evidence ought not to have been received of the contents of the judgment and executions, unless their absence Imd been better accounted for. it appeared that McNeill, the real Plaintiff in the judgment, and the Justice of the Peace who rendered the judgment and issued the executions, had both removed from the state, and that ordinary diligence had been used in searching for the papers. I therefore think With the Judge below, that it was proper to receive evidence of their contents.

It appears that the deed from the Constable, who sold the. negro in dispute, to the Plaintiff, was objected to as evidence by Defendant’s counsel, because it iiad not been registered in the county where the Plaintiff lived, but only in the county where the sale took place. This objection is sustained by the case of Palmer v. Popleston, decided in this Court, (1 Hawks 397) there, as in this case, a bill of sale made by the Sheriff, was registered in the county where the sale was made, but not in the county where, the vendee lived $ it was held there, and we must so decide here, that as the deed was not registered in the county where the vendee lived, as required by the act of 1792, (Rev. ch. 363,) there must he a new trial, and the rule for that purpose he made absolute,

Pkií ciiRiAif.- — Judgment reversed and new trial.