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HALIFAX, OCTOBER TERM, 1789.
Arrington v. Arrington. la a gift of personal chattels, a s; mbolical delivery is suficient.
ACTION of Detinue, for a negro boy given to the Plaintiff by his uncle Sandiler. The boy being in Virginia at the time of the gift, and no delivery made, except of a dollar instead of the boy: the Court ruled, that delivery of possession in such cases, is principally in order to identify the property, and that it might also answer the purposes of notoriety; but when the identity of them could be proven, the gift was good without delivery: a verdict for the Plain:iff accordingly. And as well as I recollect, per SPENCER, if there had been two boys of the same namr, a devery might have been nel'essary, but as there was only one, the proof of identity was easy
NOTE.- Quere de hoc. Actual delivery is necessary, not for identity, but to obviate the objection of nudum pectum A gift accompanied with a delivery of possession, is a contract executed ; but if there be no actual delivery, the contract, if gilt, would be executory, and could not be enforced without a sufficient consideration. Vide 2 Black. Com. 441. Bullock v. Tinnen & wife, 2 Car. Law Rep 271 Picot, edm's of Legget v. Sunderson. 1 Deo. Rep 309. The only case which seems contra, is in Brookes's Abridg. Trespass, 303, cited in Picot v. Sanderson ; but that case turned upon it que si n whether T'rover or Trespass could be maintained upon a general property withouiac. tual possession ; and it may be presumed, that the word “ gives" was used without considering its confined and technical meaning. 2 Sund. 47 a. In the case of Lavender y. Pritchard's adm', the delivery of a few ears of corn, was held a good delivery of all the donor's corn, though but a small quantity of it was present. 2 Huy. 337.
HALIFAX OCTOBER TERM, 1790.
Baker v. Long.
lifetime, no aci. fa. is necessary against heirs or devisees. — The de-
The lands were devised after payment of debts to the (1) Plaintiff, and there was judgment against the ancestor
in his lifetime. It was adjudged no sci. fa. was necessary in order to affect the lands in the hands of the heir or devisee after the death of the ancestor or devisor, because the lands never descended ; and if they had, it was cum onere of the judgment, and the sci. fa. is only necessary where a new party is to be charged ; but in this case, execution was taken out in the lifetime of the ancestor, and the Court said, that attached upon the land and went with it to whoever it came. Also, per WILLIAMS & Spencer, the deinurring of the parol had its origin in feudal principles, and does not apply here.
NOTE.-The statute of 5th Geo. 2, c, 7, makes lands in this State liable to the f.fa. execution, and the case of Bragner v. Langmead, 7 T.R. 20. shews, that if a Defendant dies after the commencement of a term, a judgment obtained on any day of that term, will relate back to the first moment of the term, and an execution may issue upon the judgment, and be levied upon the property of the deceased without making his representatives parties : a fortiori, a judgment and execution before the death, will be proper without a sci. fa. to the representatives.Vide Den on dem. of Baker v. Webb, post 43. Bellv. Hill, post 72. Jones & others v. Edmonds, 3 Murphey 43.
State v. Ransowe. Per WILLIAMS, Justice. A man may as well be indicted on an affidavit not signed, as if it was signed. The signing is only for the sake of evidence, to prevent one man being mistaken for another, and it shews also
that it was done with deliberation. (2)
Farrel v. Perry.
other chattel into the possession of the son-in-law, it is prima fucie
Per WILLIAMS, who delivered the opinion of the Court. If a father at the time of his daughter's marriage, puts a negro or other chattel into the possession of the sonin-law, it is in law a gift, unless the contrary can be pruven. For otherwise, creditors might be drawn in by false appearances. In this case, it was ruled per curiam, that a man interested in the event of the question on which the Defendant's title hangs, though not in the
event of the cause, must be admitted as a witness, con-Oct. 1790. tra Reeves and Symonds, and the cases there cited; and said, if we begin to exclude from testimony for bias, we shall be without a rudder or a polar star to direct usmi for friendship, resentment, religious opinions, sense of honour in different men, &c. are to be considered, in order to find out the bias which will probably be in each
(2) witness, and of those the Court cannot know any thing in most instances. It is best to adhere to the ancient rule that interest shall alone exclude.
Nork.- As to the first point, vide Carter's er'rs v. Rutland, post 97. Parker & wife v. Philips, post 451. The act of 1784 (Rev. č 225, s. 7) makes void parol gifts of slaves ; but in construing the act, the Courts bave uniformly decided, that such a gift is good between the parties, and void only as against creditors and purchasers. Knight & wife v. Thomas, post 289. Pearson v. Fisher, 1 Cor. L. Rep 460. Sherman v. Rusel ib. 467. M'Ree v. Houston, 3 Murphey 429. Watford v. Pitt. ib. 468. (In the two last cases the purchasers had notice of the gift). Lynch's erir v. Ashe, 1 Hawks 338. The act of 1806 ( Rev. €. 701, s. i) provides that no parol gift of slaves shall be good in any case ; accordingly it has been held, that a written transfer is necessary in all cases, even as between the parties. Cotten v. Powell, 2 Car. L. Rep. 432. Barrow v. Pender, 3 Murph. 483. The third section of the act of 1806, requires those claiming title under parol gifts, to bring their actions within three years, &c. which was decided to bar the legal remedy, but to give no title to the possesser. Skinner v. Skinner, 3 Murph. 535. Lynch's ex'r v. Ashe, 1 Hawks 338. But this is altered by the act of 1820 ( Rey, c. 1055). The third section just referred to, provides that children in possession of slaves at the death of their parent under a parol giti, may either retain them as an ad. vancement, or may bring them into botchpot and claim a distributive share. And the proviso extends to cases thereafter to be made, as well as to those theretofore made. Bull's adın'r v. Brooks, 3 Murp. 133. Stalings v. Stallings, 1 Dev. Eg. Rep. 298.-A reservation of a life-estate in a gift of slaves is void, but if before the act of 1806, such a reservation had been made in a parol gift, and the donor had conti. nued in possession until his death, which was more than three years from the time of the gift, yet the donee would not be barred, as the donor might be considered as holding under his title. Vass & wife & others v. Hicks, 3 Murph. 493.Since 1806, if a parent puts a slave into the possession of a child, without an express parol gift, this pog. session is not adverse, and will not divest the title of the parent, or bar his action. But dictum by Hall, Judge, that an express parol gift might be ripened into an indefeasible tiile by a possession of ihree years. Justice v Cobbs & Jeter, 1 Dev. Rep. 493.' This dictum of Judge Hall is overruled by the case of Palmer v. Faucet, 2 Dev. Rep. 240.
As to the second point decided in this case, vide Madox v. Hos. kins, post_4, contra. Porter v. M'Clure, post 360. Harrison v. Har. rison, 2 Hay. 355, &c. Vide also Philips on Evidence, vol. 1, 38. Bul: N. P. 283, and the cases referred to in each of those treatises, which fully support the decision in Furrei v. Perry.
Montfort's Ex'rs. v. Alston, Bond for Virginia money. Per curiam. When Virginia money is contracted for in this State, payable here, it mast be determined according to the rates established
Mar. 1791 by law, not according to the exchange; otherwise, were
Lit contracted in a for ign country and there payable. But if in State contracts, the excbange at Halifax for instance shall be the measure, when it is different at
Edenton, and still more so at other places, this would (2) be a strange mode of administering justice.
MORGANTON, MARCH TERM, 1791.
ANONYMOUS. Henderson moved against the Sheriff for not returning the execution; and among other things it appeared, the Sheriff bad bought part of the property himself. And per Spencer, the sale is not lawful and the Sheriff ought to be punished. This opinion was said to be grounded on a decision that had taken place at Salisbury some time before.
Note. --Vide Ormond v. Faircloth, Con. Rep. 550. 1 Murph. 35. It is a general rule, that all persons who stand in the character of Trustees for the benefit of others, are prohibited froin purchasing at their own sale. Vide Jurge HENDERS :r's opinion in Gordon v. Finley, 3 Hawks 239.
HILLSBOROUGH, APRIL TERM, 1791. ( 3 )
State v. Coulter.
the conviction of an «ffender, is a competent witness against such
Indictment for horse-straling.-- The General Assembly, at their last session, bad offered a ward to any person who would agrebeni bin, to be paid upon conviction. Stukesehended liim for sicaiing bis borse; and HD upon trial of ihe indiciment for stealing this horse, Stokea was offered as a witness on the part of the State ; and though it was strongly objected that he ought not to be received. as is depended upon Coulier's conviction wheber he should be entitled to the reward promised by the General Assembly, and that he could not be entitled to il unless Coulter should be convicted. Yet per curiam, consisting of SPENCER & MACAY, he is a competent witness, and must be received: and he was received and gave evidence accordingly, and upon bis evidence Coulier was convicted, and received judgment
of death, and was executed. Vide 2 H. H. P. C, 304,Sep. 1791. 280, 281.
Note.-Vide Heward y. Shiplay, 4 Eusi's Rep. 178.
MORGANTON, SEPTEMBER TERM, 1791.
Swann v. Gauge. Note given to a married woman who lived separate ; (3) the husband never assented to the contract, and the debt was altas hed as due to him. Per WILLIAM$, the only Judge in Court, assent of the husband is not necessary, tije debt becomes his immediately upon delivery to the feme.
Note.--In such case, the husband might sue alone, or join his wife with
Greenlee, assignee v. Young, assignor.
takes him in execution by ca. 89. from which he is discharged by
Assignee brought an action against the drawer, having waited two years after the assignment, obtained judge ment, and took the drawer in execution by ca. sa. Per curiam. be has forfeited his recurrence to the assignior by airing detay; certainly a year ought to be considered the longest time to be allowed. Credit in this country is never given for a longer time, and indeed it is much to be donited if that is not too long. 2dly. He has taken the drawer in execution by ca. sa. who bath dischar ged himselt of the debt by the insolvent act. Now suppose the present Plaimiff should recover against the assignor, and be should sue the drawer, the di awer will plead his former discharge, and it will be good. So by this means you will subject the assignor, and yet leave him without
reniedy, which is not law. 3dly. It was adjudged in * this case, that a witness might be introduced to explain
the condition of the assignment.