The exceptions do not furnish any ground for reversing the judgment. The objection to the validity of the deed made by the defendants is founded on the technical nature of a release and the possession of the slaves held at the time by the defendant. But if that had any application to personal chattels it is answered by the settled rule that if a deed cannot operate in one way as intended it shall operate in any other which will make it effectual — ut res magis valeat quampereat. Therefore, if this be not good as a release it must be upheld as a bill of sale or deed of gift. If there had been an error in admitting the register's book, the defendant would have no cause of complaint, for the evidence was clearly and promptly withdrawn from the jury as irrelevant, and the defendant suffered no prejudice from it. It is undoubtedly proper and in the power of the court to correct a slip by withdrawing improper evidence from the consideration of the jury, (187) or by giving such explanations of an error as will prevent it from misleading a jury. S. v. May, 15 N.C. 328. Here that was so effectually done that neither the court nor the counsel on either side took any notice of the mortgage in submitting their observations to the jury.
If the judgment were reversed on account of the damage of one cent, avenire de novo would not be awarded, but the reversal would be in respect of the damages merely, because in that respect only would the verdict and judgment be erroneous, and not in relation to the slaves and their values.Frederick v. Lookup, 4 Bur., 2018; Dowd v. Seawell, 14 N.C. 185. But the Court is of opinion there was no error as to the damages. The alteration in the verdict was made so immediately as to exclude all possibility of ill practices with the jury, and was in itself so unimportant and immaterial as not to call for any correction.
PER CURIAM. Affirmed.
Cited: S. c., 36 N.C. 22; Cobb v. Hines, 44 N.C. 351; S. v. Collins,93 N.C. 566; S. v. McNair, ib., 631; S. v. Crane, 110 N.C. 535; Toolev. Toole, 112 N.C. 157; Wilson v. Mfg. Co., 120 N.C. 95; Gattis v.Kilgo, 131 N.C. 207. *Page 134
(188)