M‘C'ay and Haywood Judges.-
The case cited-for the plaintiff is now th.e established. law and it governs the; present. Verdict and judgment lor the plaintiff.
Killingsworth v. Zollicoffer, 3 N.C. 72, 2 Hayw. 72 (1798)
Oct. 1798
·
North Carolina Superior Court
3 N.C. 72, 2 Hayw. 72
Killingsworth vs. Zollicoffer.
VxETINUE for Negroes. Killingsworth married the daughter of the defendant, and in about, ten days afterwards the negroes in question, 'which before the marriage were Zollicoib fer’s, were in the possession of the plaintiff, and so continued till after the wile’s death, which took place about a year after the marriage, and afterwards the negroes continued in bis pos'sesst-'' on a year or two, when they were again in the possession of Zol-licoffer, who detains them ; but whilst in the possession of the plaintiff, he the plaintiff, expressed doubts about his title, saying he did not know whether or not he could lawfully sell them.
Davie, for the plaintiff,
cited and rdied upon the case of Cart ter*’ executors vs. Rutland.
Baker argued
that the case of Carter and Rutland went upon a presumption that the negroes were intended as a gift by the farther, which presumption can only stand till the contrary appears-, and in this case there are circumstances strong enough to overturn the presumption. The doubts expressed on two several occasions by the plaintiff with respect to the validity ol his title*, and another circumstance, that one of the negroes in question*, was at the time of this pretended-gift, in controversy between a third person and the now defendant, which proves he could not have intended a gift.