Deaver v. Rice, 24 N.C. 280, 2 Ired. 280 (1842)

June 1842 · Supreme Court of North Carolina

24 N.C. 280, 2 Ired. 280

THOMAS S. DEAVER vs. JOSEPH M. RICE, ADM’OR &c.

It is not sufficient evidence of the loss of an execution, which had been in the hands of a constable, so as to let in secondary evidence, to shew that the constable had removed to another State, and had left his papers generally with an agent, who testified that the execution was not to be found among the papers so left.

Appeal from the Superior Court of Law of Buncombe county, at Spring Term, 1842, his Honor Judge Bailey presiding. This was an action of trover, brought to recover damages for some corn. The plaintiff claimed title as follows: It was shown that the corn had belonged to one Keith, and the plaintiff alleged that he had bought it at execution sale. A witness by the name of Bridgman was introduced, who stated that his brother had been a constable in this county, and had left the State about a year after the alleged sale and had not returned — that when he left the State, he placed,in the witness’ possession a parcel of his papers, and instructed him to get a portion of them which had .been left with one John Carter. The witness said that he did obtain a bundle of papers from the said Carter. He further stated, that he had recently, at the instance of the plaintiff, made a search among all these papers, and could find only three executions. (These executions are said to be marked - A., and to be made a part of the case. They do not appear, however, on the record returned to the Supreme Court, nor do they seem to be material in the case, as presented to the Supreme Court.) He further stated that he was present at the sale of the corn, when the plaintiff purchased from his brother, the officer — that he did not see any execution or hear his brother say he had one, but Keith, whose com was sold, told him that “the money was going to Deaver and others,” or that “ the execution was in favor of Deaver and others,” he was net sure which. He also stated that, when the corn was bid off he saw no money paid. Upon this statement, the plaintiff’s counsel proposed to give parol evidence of an execution in favor of the plaintiff, Deaver, against Keith, under which he alleged the sale had been made, and which had been lost. The defendant’s counsel objected to this, because, even if it were admitted that there had beeu such an execution in the hands of the officer, Bridgman, at the sale, yet there was no evidence that it had been handed over with the bundle of papers either to the witness or to Carter, and by him to the witness; and that Bridgman and Carter should have been examined before pa-rol evidence could be given. His Honor held that the loss of the paper was not sufficiently established, to admit secondary evidence, and instructed the jury that they should not consider it. He then instructed the jury, that, though there was no levy indorsed on either of the three executions in evidence, yet, if they were satisfied that the officer, at the time of the sale, had either of them in his possession, and in fact sold the corn under either of them, they would find for the plaintiff. A verdict was rendered for the defendant. A new trial was moved for, because parol evidence was not permitted to be given of the Deaver execution. This motion was overruled, and, judgment being entered for the defendant according to the verdict, the plaintiff appealed.

No counsel appeared in this court on either side.

Daniel, J.

The Judge was of opinion that the plaintiff had not laid a sufficient foundation- of the loss of the execu-^on> to *n t0 Paro^ or secondary evidence of the same.. And in this opinion we agree with the judge. The deposition of the constable has not been taken,, John Carter has not, been examined, nor the magistrate, who issued the execution. The only evidence offered on this point was the testimony of the brother of the constable, who said that) the execution was not among the papers left with him, or in the file of papers he had got from Carter. It a man had brought an action of debt on a bond, profert could not be dispensed with, merely on the plaintiff’s shewing, that the person, who had possession of it, had removed into another State. The judgment must be affirmed.

Per Curiam, Judgment affirmed.