The plaintiff claimed title to the slaves in question, by purchase from one Thomas F. Grandy, and produced a bill of sale, dated 14 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 (348) had in his hands various executions from a magistrate against the property of Thomas F. Grandy, which had been delivered to him on 20 January, 1859, and on which were entered levies on the female slave in question, dated 28 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 the levies were made as alleged by the defendant before the bill of sale to plaintiff.
The entries on the back of the executions were objected to as evidence for the defendant, but were admitted, and plaintiff excepted.
One McCoy testified that the slave in question stayed in a cabin on his 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 too far gone in pregnancy to remove her then, and engaged him to take care of her until he 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 was made as alleged by the defendant; that this return was on 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 had levied the same on 28 January, 1859, the day on which he returned that he had made the levy, *Page 270 the plaintiff would not be entitled to recover; but if they did not so believed, 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 hands on (349) 28 January, 1859, yet, if he did not levy them on that day, the plaintiff would be entitled to recover; and further, to instruct the jury that there was not evidence apart from the entry by defendant himself to prove that the levy was made on 28 January, 1859. The court declined to give the instructions asked for, and plaintiff again excepted.
Verdict and judgment for the defendant. Appeal by the plaintiff. The case does not disclose any error of which the appellant has a right 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 28 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 would be 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 gestae.
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 (350) necessity. It is, in the case before us, 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 McCoy is admissible. If it be rejected as a part of the res gestae, it is, nevertheless, admissible simply as heresay, 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 rule excluding hearsay. *Page 271
The entire instruction given by the court below to the jury 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 hewould. 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. No error.
Cited: Simon v. Manning, 99 N.C. 330.