Blount v. Mitchell, 3 N.C. 65, 2 Hayw. 65 (1798)

Sept. 1798 · North Carolina Superior Court

3 N.C. 65, 2 Hayw. 65

Blount vs. Mitchell and others.

HpRESPASS for entering upon his close and talcing and carry- *“• ing away a negro named Robin, the property of the plaintiff.

The facts were, that Stanley obtained judgment against Blount for £. 444 ; a jl. fa. issued thereupon, and the sbeiiff returned, levied upon negroes, naming them, one of whom was the ne-gio in question : Blount then obtained an injunction upon the terms of paying f. ¡296 into the oflice of the clerk and master ; then the injunction was dissolved, and a venditioni exponas issued for the balance : The sheriff without making any new seizure, and without actually taking into his possession the negroes named in the return upon the f.fi. advertised them for sale, and on the day of sale, Blount tendered all the money mentioned in the venditioni, which the sheriff would not receive, claiming commissions on the f. 295 paid into the office, on the ground that he had been at the trouble of levying upon the n< groes for that sum also. The sheriff sold the negroes on the day prefixed by the advertisement, but they were not then present, nor in his actual possession at the time, but in the possession of Blount, anti Mitchell purchased the negro named in the declaration ; and afterwards in company with the three other defendants, went armed in. the night time to Blount’s plantation, and took and carried away that negro, and Blount has never regained possession of him since. Going upon the. plantation of the plaintiff with force and taking away the negro by violence, is a trespass, and will subject the defendant to such damages as a jury may think proper to assess, even if the property vested in Mitchell by the sale ; no man can he allowed tp assert his right by violence. If the property did not vest in Mitchell by the sale, the jury should-also assess damages to the value of the slave. It is immaterial, what passed between the sheriff and Blount; for if the sheriff refused the money when he ought to have received it, and sold, notwithstanding the vendee’s title may be good, he is to look no farther than to see that he is an officer who sells, and that he is empowered to do so by an execution; but then the sheriff' should have taken the property into his actual possession, and had it present at the time of the sale — first, because personal property passes by delivery — secondly, because he cannot sell a chose in action — thirdly, for the benefit of the defendant, and to prevent fraud, lest by keeping the property out of view, he might cause it to sell for less than the value, as a purchaser would not be likely to give the full value for an article he had not the opportunity of seeing ; but as upon this point, the defendant’s counsel says he is unprepared, having not expected the objection, I would recommend a verdict assessing damages, upon the supposition that the property did not pass to the ven-dee, and also upon the supposition that it did pass, leaving to the court to decide upon which assessment the judment shall be entered- The counsel on both sides agreed to this, and to be bound by the opinion Judge Haywood should give.

The jury found a verdict, assessing damages to one hundred and twenty pounds, in case the property did not pass to the ven-dee ; and to £. 20 in case it did.

And next day the court ordered judgment to be entered for £. 120, saying the things sold ought to be actually seized and shewn to the bidders at the time of sale, and be delivered to the purchaser; and that the same point had been decided at Wilmington atthejastterm, in a cause between Bunting and Smith; that case having been similar to this in all parts, with this additional circumstance, that a third person who claimed the negro, had obtained the possession, and had it at the time of the sale by the sheriff.

Judgment for £. 120.