Trespass for taking five negro slaves, named Jack, Henry, Daniel, Toney, and Moses. In support of his action the plaintiff introduced Jeremiah Brown, who testified that some time in the summer of 1830 he, as the agent of the plaintiff, had possession of the slaves in question, when they were taken by the defendant, put in jail, and subsequently sold; that the plaintiff was present at the sale, forbade it, and gave public notice that he claimed the slaves as his own; that the slaves were valuable; that he does not recollect the price at which slaves sold in 1830, but that some time after that period four of the slaves would have sold for $1,200 each, and the fifth for $1,500 or $1,600, and that the first four would hire for $120 each per annum, and the other for $400 per annum. Upon cross-examination the witness stated that the slaves in question had formerly belonged to him; that they had been levied on by Jeremiah Allen, a nephew of his, who was deputy marshal for the District of North Carolina, in New Bern, under a fieri facias issuing from the district court of this State; that the slaves ran away from a tanyard, where they were employed under the charge of the witness, and could not be taken so as to be sold by the deputy marshal in New Bern; that he, the witness, contrived to have an interview with the slaves about 9 o'clock at (395) night at the wharf in New Bern, and prevailed upon them to accompany him to the town of Washington; that he carried them up the river and Swift Creek to the bridge across the latter, where he arrived with them about sunrise, and he thence took them to Washington by land in open day, and carried them to a house where they remained all night, and the next day he delivered them to Mr. Demilt, the deputy marshal, in the town of Washington, and that the latter sold them at public auction at the door of the courthouse, about the hour of 1 or 2 o'clock in the afternoon of the same day; that Mr. Demilt had previously advertised them; that there were four or five persons present at the sale, one of whom, Mr. Holmes, bid them off for Mr. Hollister and Mr. Blackledge, the plaintiff in this suit, at the price of $210; that after the sale the witness took the slaves, with the consent of Mr. Holmes, and without any objection from the officer, Demilt, and carried them to New Bern, where Mr. Hollister refused to have anything to do with them, but the plaintiff, Mr. Blackledge, received them, and placed them under the charge of the witness, who employed them in working out some leather, which the plaintiff had purchased at a sale of the witness's property made by the deputy marshal in New Bern. This witness testified further that the deputy marshal in New Bern did not deliver the slaves to him, nor authorize him to bring them, nor know of his intention of bringing them to Washington; that he brought no paper from the deputy marshal at New Bern to the deputy marshal at Washington, though he did bring the writ of execution from the deputy in New Bern to Major Thomas H. Blount; that the plaintiff, who was his brother-in-law, did not authorize him to have the slaves bought for him, nor know of his intention to do so; that he had them bid off for Hollister and the plaintiff, who were his sureties, and had paid large sums of money for him; that the slaves had been previously advertised for sale in New Bern, but could not be sold there on account of their having run away, and that he brought them to Washington to be sold, because he could not induce them to come in to be sold at New Bern, where they feared they would be purchased by speculators. The witness stated further that (396) nothing was paid at the time of the sale to the officer for the slaves, nor did he know of anything having been subsequently paid for them.

For the defendant Mr. Demilt was then examined. He testified that some time before the sale of the slaves in question by him, he was requested by Major Thomas H. Blount to advertise Mr. Brown's slaves for sale in Washington, and on 27 March, 1830, he did advertise them, in the usual way, to be sold on the 6th day of the following month; that on the morning of the latter day Mr. Brown came to his store and remained there until 1 or 2 o'clock in the afternoon, when they went to the courthouse, and the witness, having received the execution from Mr. Blount, offered the slaves for sale, when Mr. Holmes bid them off for Mr. Hollister and the plaintiff for $210; that there were only three or four persons at the sale; that no money was paid to him, nor did he then require it, though he would have received it had it been tendered to him; that he made no objection to Brown's taking the slaves, though he heard him order them home; that he gave no receipt for money nor bill of sale for the slaves, because the money was not paid him; that some time afterwards Brown sent him the plaintiff's check on the bank for the purchase money, but the check was protested for nonpayment, and some short time afterwards, when he was informed the check would be paid, he declined receiving the money, and wrote to Mr. Brown that if the plaintiff thought proper to claim the slaves he might pay the money into the clerk's office; that after the sale he handed the execution to Brown, who stated it was necessary to complete sales in New Bern.

Mr. Hollister, for the defendant, testified that he never authorized Brown to have the slaves purchased for him; that he gave no authority to Holmes to do so, and that, when informed of the purchase, he refused to have anything to do with it; that at the subsequent sale of these slaves in New Bern he purchased two of them, but does not recollect at what price.

Thomas H. Blount testified that, some time before the sale of the slaves in Washington, Brown came to his house after dark and told him that if his property was sold at New Bern it would be sacrificed, (397) and asked the witness whether the deputy marshal in Washington would not sell them there; said the execution was in the hands of his nephew in New Bern, from whom he could get it, and asked the witness to purchase the negroes for his creditors; witness declined to do so himself, but, after some further importunity from Brown, he agreed to ask Mr. Holmes to purchase for Brown's creditors. In speaking of a sale in New Bern, he said something about Mr. Jarvis and speculators.

John B. Dawson swore that he lived at Swift Creek Bridge in 1830; that Brown came there one morning before breakfast with the slaves in question, and said that he was carrying them to Blount's Creek to a seine there; that the negroes were not confined, but seemed to go willingly. Witness further testified that in 1830 the plaintiff was considered to be in embarrassed circumstances, and he did not think he could have paid for the slaves at a fair price, though he could easily have raised $210 at any time; that the plaintiff was in possession of a plantation and negroes worth $8,000 or $10,000, which, however, were understood to belong to his wife.

Moses Jarvis testified that he knew the slaves in controversy, and thought two of them were worth $600 each in 1826 and 1827; that at the time of the sale he was not a creditor of Brown's; that at the sale of the tanyard, etc., at New Bern, by the deputy marshal there, the plaintiff purchased the stock of leather, and that Brown and the deputy marshal, Allen, had charge of the tanyard.

Howard Wiswall swore that he lived in Washington in 1830, and was at that time engaged in the purchase of negroes, but he never knew or heard of the sale of the slaves in questions until after it was over.

The record of a judgment in the district court of the United States for the District of North Carolina against Brown, and the different executions issuing thereon, under one of which the alleged sale took place, were also introduced. The marshal at first returned this sale under the execution, but afterwards had leave to amend his return, and then returned a levy upon these slaves, and that there was no sale for want of bidders. A venditioni exponas then issued, under which the defendant, as deputy marshal, seized the slaves. The money (398) under the sale at Washington was paid into the clerk's office on 12 May, the day the first execution was returnable.

The plaintiff contended that he was entitled to recover, first, because he acquired title to the slaves in dispute under his purchase at the sale by the deputy marshal, Demilt, at Washington; but if that were not so, then he was entitled to a verdict in this action, secondly, because, having shown possession at the time of the slaves being taken by the defendant, the latter could not justify his taking under the venditioni exponas, the levy by the deputy, Allen, having been divested by the proceedings at Washington.

The defendant contended that the plaintiff could not recover, first because the alleged sale by Demilt, at Washington, conveyed no title to the plaintiff, for want of delivery, and because no money was paid by the purchaser; secondly, because the purchase was for Hollister and Blackledge, and the suit is in the name of Blackledge alone; thirdly, that the defendant was an officer acting under a legal process, and could not, therefore, be rendered liable for acting under such process; fourthly, that the deputy marshal in Washington could not sell under a levy made by the deputy marshal in New Bern; fifthly, that the whole transaction by which the slaves were taken from New Bern to Washington to be sold there was fraudulent and void, and the plaintiff could not claim title under it, whether he was privy to the fraud or not.

His Honor instructed the jury that the purchase made by the plaintiff's agent, Holmes, was not void for want of delivery or for the nonpayment of the purchase money, if the jury were satisfied that the officer, Demilt, permitted Brown to take the slaves without requiring the previous payment of the price bid for them. But if the sale made by Demilt were for any cause void, then the slaves never had been divested from the possession of the deputy marshal in New Bern, and they might well be sold under the venditioni exponas, under which the defendant acted. His Honor further instructed the jury that if the slaves were purchased for Hollister and Blackledge, and the former refused to have anything to do with them, the latter might take the benefit of the purchase (399) himself and might sue alone for them, and that there could be no objection to a sale made by the deputy marshal in Washington, under a levy made by a deputy in New Bern. Upon the question of fraud the court charged that if there was an understanding between the plaintiff and Brown by which the negroes were to be taken to Washington and there sold, so that they might be purchased by the plaintiff at an undervalue, the transaction was fraudulent, and the plaintiff could acquire no title under it. So, if the money paid for the slaves by the plaintiff was furnished by Brown. The court charged further, that if there was fraud in conducting the sale itself, either by Brown or by Brown and the officer Demilt, then the plaintiff could not claim the slaves bid off at such sale, though he might not be privy to the fraud. The court charged, lastly, that if the plaintiff acquired a good and valid title to the slaves by his purchase at the deputy marshal's sale, then the officer (the present defendant) could not justify taking the slaves under the execution in his hands. There was a verdict for the defendant, a new trial moved for and refused, and judgment according to the verdict, from which the plaintiff appealed.

RUFFIN, C. J.

The transactions out of which this case arose are so palpably dishonest on the part of Brown that counsel has not attempted to defend them in any of their parts. Nor, indeed, has fault been found with any of the views taken of the case by the court, excepting only the observation, "So, if the money paid for the slaves by the plaintiff was furnished by Brown," the transaction would be fraudulent, and the plaintiff could acquire no title under it. It is said that suggestion was made and submitted to the jury without evidence, and, therefore, erroneously. If it be so, the verdict must be set aside; for, however much we might regret sending a case back to another trial, in which, upon the plaintiff's own evidence, the result must always be against him, yet we should be obliged to do so if he did not have the full benefit of the (400) law upon the former trial. But in such a case as the present certainly the court cannot be expected to require less than the entire and absolute want of any evidence, direct or inferential, upon which the jury could have acted. We do not think there was such a total destitution of proof on that point, but that it was furnished by the other fraudulent circumstances of the case, tending to establish a secret trust between those parties for Brown. Among these circumstances are the following: Allen, the deputy marshal, was the nephew of Brown, and in his employment in his tanyard, in which the negroes in controversy were also employed under him. All that property, tanyard, stock, and slaves, was, among other things, advertised to be sold on 1 April, in New Bern, by Allen, under the execution; but before that day of sale, by the procurement of Brown, the sale of these negroes was advertised in Washington, by Demilt, another deputy marshal, to take place there on 6 April. Accordingly at the New Bern sale on 1 April these negroes were allowed to be out of the way, and were not sold; but the tanyard, stock of leather, hides, etc., and two other negroes were sold, and purchased by the present plaintiff. But Brown still continued in possession of everything thus purchased, and worked out and sold the leather, and, as far as we see, enjoyed all the profits. Then, on the night of 4 April, he, Brown, set out secretly with the execution and the negroes to Washington, and had them in Washington for sale on the morning of the 6th of the month, and they were then sold by Demilt, and, as Brown says, were, without the privity of the plaintiff, also purchased, by his procurement, in the name of Blackledge. No money was then paid on account of the purchase. But it is certain, and the contrary is not pretended, that Brown supplied the money to defray the expenses of the trip to and from Washington, and that he also took the execution again and the negroes back to their old employment in the tanyard, which was still in his own occupation and enjoyment; and there they remained until they were seized a second time by the present defendant for the purpose of making the sale which gave rise to this action. The negroes, which Brown values at about $4,000, were bid off at Washington for $210, and that sum was (401) paid into the clerk's office on 12 May following by a respectable gentleman in the name of the plaintiff; and it must be admitted that there is no direct evidence that it was not the money of the plaintiff, but was furnished by Brown. But when we find that Brown furnished other money, namely, that for the expenses as just mentioned; that in making the purchase he used the plaintiff's name, at his will, and without the leave of the plaintiff, and that the purchase was made for his, Brown's benefit, collected from the attending circumstances and to be inferred from his subsequent possession and enjoyment of all the property thus put into the plaintiff's name; that he, Brown, made the remittance to Demilt, which was intended to complete the fraudulent purchase, and did all the correspondence towards closing the transaction, as he had begun it, there is, at least, some if not a strong ground of suspicion that the plaintiff, throughout, furnished nothing but his name to his brother-in-law, Brown, and that the latter, as he gave his personal agency, so also supplied out of his funds, or, possibly, out of the tanyard, which was still in his disposition, the pecuniary means that were used to carry out the dishonest purposes of this unfortunate man. We do not say that a jury would be obliged to infer from these circumstances that Brown furnished the money; but, on the contrary, we think they might well have refused so to find. But we do not think the circumstances enumerated so irrelevant or so inconclusive to establish the fact that the money was probably, per indirectum, furnished by Brown, instead of being thrown away by the plaintiff for the other's benefit, as to give to a verdict finding that fact the characteristic of being a finding without evidence. Those circumstances certainly tend towards that conclusion; they raise some suspicion or presumption of the supposed fact; and it was not, therefore, erroneous to leave them to the jury, to be weighed by them and allowed such force as they thought them entitled to, from their knowledge of business and the usual motives of men in the relation and condition in which the plaintiff and Brown stood.

PER CURIAM. Judgment affirmed.

Cited: Null v. Moore, 32 N.C. 328.

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