Grandy v. McPherson, 52 N.C. 347, 7 Jones 347 (1860)

June 1860 · Supreme Court of North Carolina

52 N.C. 347, 7 Jones 347

WILLIS S. GRANDY v. JOSEPH McPHERSON.

The return, made by a constable on the back of an execution, is evidence of the fact of a levy, and of the time when it was made.

What was said by a constable at the time of making a levy, as to the fact the levy, was J-Ield to be evidence, as part of the res gestee, and as corroborative of the evidence afforded by the return.

This ivas an action of trover for the conversion of a negro woman and her child, tried before Dick, J., at the last Spring Term of Camden Superior Court.

The plaintiff claimed title to the slaves in question, by purchase from one Thomas F. Grandy, and produced a bill of sale, dated 14th of February, 1859, purporting to convey the mother to the said plaintiff, the child being born afterwards.

The defendant was a constable in the county of Camden» and had in his hands various executions from a magistrate against the property of Thomas F. G-randv, which liad been delivered to him on the 20th of January, 1859, and on which were entered levies on the female slave in question, dated 28th of January, 1859. The property was sold under these executions, and this suit was brought for that act. The question was, whether the levy and sale were valid, and particularly, whether tiie levies were made as alleged by the defendant before the bill of sale to plaintiff.

The entries on the backs of the execution were objected to as evidence for the defendant, but were admitted, and plaintiff excepted.

One McCoy testified that the slave, In question, staid in a cabin on Ins land, and that he saw the defendant go to this cabin, and when he came to him where he was in his field, he told him he had levied executions on the said woman ; that she was was too far gone in pregnancy to remove her then, and engaged him to take care of her until lie could remove her, which he did in March, still previously to the birth of the child — that while the woman remained in the cabin, he had charge of her as defendant’s agent. These conversations with the witness McCoy were objected to, but admitted by the Court, and the plaintiff again excepted.

The Court instructed the jury that “the entry on the back of the executions by the defendant of a levy on the property in controversy, together with the testimony of McCoy, if believed, was evidence to go to the jury that the levy ivas made, as alleged, by the defendant; that this return was bn oath; that it was but prima facie evidence and liable to be rebutted; that if they believed the defendant, had the executions in his hands, or any one of them, and liad levied the same on 28th of January, 1859, the day on which lie returned that he had made the levy, the plaintiff would not be entitled to recover, but that if they did not so believe, the plaintiff would be entitled to recover.

The plaintiff’s counsel asked the Court to instruct the jury that although the defendant did have the executions in his jiands on 28th of January, 1856, yet, if he did not levy them on that daj', the plaintiff would be entitled to recover; and further, to instruct the jury that there was no evidence apart from the entry by the defendant himself, to prove that the levy was made on 28th January, 1859. The Court declined to give the instructions asked for, and plaintiff again excepted.

Yerdict and judgment for the defendant. Appeal by the plaintiff.

Johnson and W. A. Moore, for the plaintiff.

Minton, Mines and Jordan, for the defendant.

Manly, J.

The case does not disclose any error of which the appellant has a light to complain.

The exception first in order, upon the admissibility of a conversation between the witness McCoy and defendant, is untenable. The point then, under investigation, was the alleged levy upon the slave on the 28th of January. McCoy testified that he saw the defendant go to the cabin where the woman was, about that time, and that he came thence to witness in the field, and engaged him to take the custody of her. The visit to the woman’s cabin, and the contract with the witness for the future care of her, were facts, fit and proper to be proved. The latter could only be proved by the words used between the parties, and the former would be shorn of much of its significance and weight, unless accompanied by the declarations explanatory of its object. The whole conversation, therefore, between defendant and witness McCoy, was competent as a part of the res gestee.

The return of the constable, as endorsed on the executions, is evidence in his behalf — rebuttable by proofs to the contrary. It is made under oath- — is the memorandum of an official act, made in the appropriate place, and supposed to be contemporaneous with the act itself — and is, therefore, according to well settled analogies, evidence, of necessity. It is, in the ease before ns, as held by the Judge below, prima facie evidence.

In this connection, another ground is suggested, upon which the conversation of the officer with the witness McCojr, is admissible. If it be rejected as a part of the res gestae, it is, nevertheless, admissible simply as hearsay, to corroborate the return, by showing that the officer has been uniform in the testimony he gives. This is in accordance with a well established exception to the general role excluding hearsay.

The entire instruction given by the Court below, to the juiy, is free from any just ground of exception. The first branch of the instructions asked for, was properly refused, because it had already been substantially embraced in the charge. The Court is asked to declare, if the executions were in the officer’s hands, but not levied on the day named, the plaintiff would be entitled to recover, when they had just been told, that if the officer had the executions, or any of them, and levied on the day, and subsequently sold to satisfy, plaintiff would not be entitled, otherwise he would. This was sufficiently explicit, and excluded any idea that the defense would be made good, except by an execution levied prior to the date of plaintiff’s bill of sale.

With respect to the second branch of instructions asked for, that is, that there was no evidence of the levy, save the return endorsed by the defendant himself, what has already been said touching the admissibility of the declarations of the defendant in the field, will show why it was proper to refuse this also. The declarations in question — the arrangement for keeping the woman and the contemporaneous visit to her cabin, were all proper to be considered in confirmation of the return.

Per Curiam,

Judgment affirmed.