Carlton v. Bloodworth, 5 N.C. 424, 1 Mur. 424 (1810)

July 1810 · Supreme Court of North Carolina

5 N.C. 424, 1 Mur. 424

Carlton v. Bloodworth.

T From Duplin.

In an action of trover for a negro slave, the Plaintiff offered in evidence a certified copy from the registry, of the bill of sale for the slave, he first making' ail affidavit, that the bill of sale was not in his possession or power; that he had delivered it to the register to be registered, and on application for it afterwards, was told by the register that it was lost. There was'a subscribing witness to the bill of sale, who resided in the State, and he was not produced as a witness. Held, that the copy cannot be received in evidence.

1st. On account of the insufficiency of the proof as to the loss of the original;

2d. Because the act of 1792, ch. 6, requires that in all trials where the title of a slave is evidenced by a written transfer, the execution ef such writing shall be proved by the subscribing witness, if alive, and within the State ; and there cannot be less reason for requiring the subscribing witness, where a copy is offered in evidence, than where the original is offered.

This wad an action of trover for a negro slave. The Plaintiff offered in evidence a certified copy from the registry, of a bill of sale for the slave, upon an affidavit by iiim made, that the original was not in his possession or power j that he had delivered it to the register to be registered, and had afterwards applied for it, and it could not be found. It appeared from the copy, that there,was a subscribing witness to the original, and it was admitted that he resided in the State. The admission of this copy in evidence, was objected to upon two grounds j 1st. Tfie insufficiency of the proof as to the loss of the origi-girial; 2d. That the subscribing witness ought to be in Court, to be examined touching the execution of the original. The Court permitted the Plaintiff to proceed, and reserved the points made as to the admissibility of the copy in evidence ; which, upon a verdict being found for the Plaintiff, were sent to this Court.

By the Court.

Each of the objections made to the admission of the copy in evidence# is good. It appeal's by the affidavit of the Plaintiff, that the anginal was lost after lie delivered it to the register ; and if if be competent for the Plaintiff to prove that he delivered it to the register, it surely is not also competent for him to prove that the register lost it. The fact of loss, according to the Plaintiff’s own shewing, could be proved by the register, and that fact must be proved before the copy shall be read.

As to tiie second objection, it is declared by the act of 1792, ch. 6, “ that in all trials at law, where a written transfer or conveyance of a slave or .slaves, shall be introduced to support the title of either party, the due and fair execution of such writing shall be proved by a witness subscribing and attesting the execution of such writing ; but if such witness shall be dead, or removed out of the State,'then the probate and registration of such writing may be given in evidence.” There cannot be less reason for requiring the subscribing witness, where a copy is offered in evidence, than where the original is offered. Judgment that the. verdict be set aside and a non-suit entered.