Summary
In McAllister v. McAllister, 34 N.C. 184, Ruffin, C.J., said 'It is undoubtedly proper and in the power of the court to correct a slip by withdrawing evidence from the consideration of the jury....'" State v. Green, 251 N.C. 40, 46, 110 S.E.2d 805, and the many cases there cited.
Summary of this case from State v. GrundlerOpinion
(June Term, 1851.)
1. A., having a life estate in two negroes, executed an instrument in which were the expressions "which right and title I relinquish to B. for value received," which instrument was signed, sealed, witnessed and delivered: Held, that if this be not good as a release technically, it is good as a bill of sale or deed of gift.
2. A court may correct a slip by withdrawing improper evidence from the consideration of the jury or by giving such explanations of an error as will prevent it from misleading a jury.
3. When in detinue there is a verdict for the plaintiff and error in the assessment of damages only, a reversal will be for the damages only, a venire de novo will not be ordered.
(185) APPEAL from Manly, J., at RICHMOND Spring Term, 1851.
Detinue for a slave Caroline and her two children, which was tried on non detinet and the statute of limitations. The case was that John McAllister owned the slave Caroline and conveyed her for life to the defendant, his sister. Afterwards the defendant executed a deed to the said John of the following tenor: "I, Sarah McAllister, having a lifetime right from my brother, John McAllister, for a negro woman named Nicey and her two children, Valentine and Caroline, which right and title I relinquish to him, the said John, for value received, under my hand and seal, this 1 August, 1829." The deed was attested by a witness who proved it in 1850, when it was registered. After the execution of the deed the three slaves therein mentioned were left in the possession of the defendant, and so continued up to the trial. While thus in the defendant's possession, the said John gave, and by deed of gift conveyed, the said Caroline to the plaintiff, who was his infant daughter and is still an infant, and subsequently thereto Caroline had the two children.
On the part of the defendant it was insisted that the deed made by her was not sufficient to pass her estate. But the court held otherwise.
It was further insisted on the part of the defendant that her long possession after the deed of 1829 barred the plaintiff's action. In reply thereto the plaintiff alleged that the defendant was in possession under John McAllister as his bailee, and that he, during such possession, continually claimed and exercised act of ownership over the slaves. And in order to sustain the same the plaintiff, among other things, offered in evidence a mortgage made by the said John of the said slaves and other property, real or personal, which he made to a third person to secure certain debts. The mortgage was read from the register's book; and while the plaintiff's counsel was reading it from the book, it was objected on the part of the defendant that the book was not competent evidence of the contents of the deed, but that a certified copy of the (186) registry ought to be produced. The objection was overruled and the reading finished; but it appearing thereby that the mortgage was made after the deed to the plaintiff, the presiding judge remarked that it could have no effect favorable to the plaintiff and no further notice was taken of it on the trial.
The jury found a verdict for the plaintiff and assessed the value of each of the slaves, but did not assess any damages for the detention, remarking that they had yielded no profits. After the verdict had been thus entered the jury was discharged; but in about one minute and before any of the jurors had left the court, they were called together and informed by the court that in such cases it was the usual form to give nominal damages, and thereupon the jury assessed one cent as the damages. Judgment was entered on the verdict thus altered, and the defendant appealed.
Strange for plaintiff.
Banks for defendant.
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 quam pereat. 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, a venire 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; Toole v. Toole, 112 N.C. 157; Wilson v. Mfg. Co., 120 N.C. 95; Gattis v. Kilgo, 131 N.C. 207.
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