#### Fowler v. Lee.

Argued Feb. 2d, 1815.

1. Evidence*—Unrecorded Bill of Sale.—A bill of sale of a slave should be permitted to go to the jury as evidence, though not recorded.

As to gifts of slaves, see Rev. Code, 1st vol. ch. 108, sects. 47, 48, 49, p. 192.

2. Bill of Exceptions—Certainty†—Case at Bar.—A bill of exceptions, stating, the plaintiff offered to prove that the contract under seal, on which the defendant relied, appearing absolute on Its face, was in fact conditional, and that the court would not permit the plaintiff to offer parol evidence to shew it conditional, is too vague and uncertain for the appellate court to give an opinion upon it.

3. Same—Same—Same.—A bill of exceptions, stating, the plaintiff offered to prove that a deed from a third person to the defendant was obtained by fraud, to defeat the rights of creditors and purchasers, and that the court rej ected such evidence, (without stating that the plaintiff was a creditor or purchaser, whose rights were affected by the deed.) is also too vague and uncertain.

*4.*Detinue‡—Evidence—Parol Declarations of Defendant.—In detinue for a slave, the defendant having produced a bill of sale to support his title, the plaintiff may prove parol declarations of the defendant, disclaiming title to the slave, under the said bill of sale after he had notice of the plaintiff’s purchase, and before he had perfected his own title by obtaining possession.

5. instructions—Weight of Evidence,§—It is error in the court to instruct the jury, that either party “was a fair purchaser for a valuable consideration;” that being a question which ought to be left to the jury upon the evidence.

On the trial of an issue joined on the plea of non detinet, in detinue for a slave, the ' defendant, Charles Lee, produced *in evidence, to support his title, a writing' in these words, to wit; “Be .it known, that we, John Webber and wife, have hereby bargained and sold, unto Charles Lee, one negro girl, named Patience, and for and in consideration of 83Jíá acres of land, at four dollars per acre ; the negro, Patience, is now in possession of John Michaux, but to be delivered to the said Lee 2Sth of December next. We, the said John Webber and wife, for ourselves, our heirs, &c., do warrant and defend right and title, unto him, the said Charles Lee, and his heirs, &c. forever. In witness whereof we have set our hands and seals this 25th day of July, 1809:”—to the introduction of which, the plaintiff objected, “because the said writing was not proved or recorded within eight months from its execution, and because the plaintiff was a subsequent purchaser :”—but the court over-ruled the objection, and permitted the said writing to go to the jury in evidence ; to which opinion of the court the plaintiff excepted.

The plaintiff then offered to prove “that the contract between the defendant and Webber and wife was conditional, and had not been complied with on the part of the defendant ; but the counsel for the defendant objected to the said evidence ;—alleging, that the writing under which he claimed was absolute on the face of it, and that the plaintiff could offer no parol evidence, in relation thereto, which would go to shew it conditional.” The court sustained the objection, and would not permit the plaintiff to prove the contract as aforesaid ; whereupon the plaintiff filed a second bill of exceptions.

The plaintiff also offered in evidence sundry witnesses *to prove that the said bill of sale “was obtained by the defendant, from Webber and wife, by fraud, to defeat the rights of creditors and purchasers : hut the court, being of opinion that fraud was a proper subject for a court of equity, would not permit the plaintiff to impeach the writing aforesaid, and rejected the whole of the said testimony :”—which opinion produced a third bill of exceptions.

The plaintiff farther offered evidence to> prove declarations of the defendant, “disclaiming title to the negro, as aforesaid, under his original contract by virtue of the said bill of sale, after he, the defendant, had notice of the plaintiff’s purchase, and before he, the defendant, had perfected his title; the said slave being, at that time, not in the possession of the defendant, but of John Michaux, to whom she had been hired for one year: but the court refused to permit the plaintiff to prove such declarations of disclaimer, as uttered by the defendant, after notice of the plaintiff’s purchase as, aforesaid to which opinion also, the plaintiff excepted.

The defendant moved the court “to instruct the jury, that a notice to the plaintiff of the purchase of the defendant was as good, valid, *175and binding- in law, as if the deed under which the defendant claimed had been duly proved and recorded within eight months; although the slave in the declaration mentioned, at the time of the execution and delivery of said deed from Webber and wife to the defendant, was in the possession of John Michaux, a third person, to whom she was hired for one year, which expired on the 25th of December, 1809 : — and the court did instruct the jury that the defendant was a fair purchaser for a valuable consideration, and that notice of the defendant’s' purchase was as good, and valid, and available in law, as if the deed aforesaid, under which the defendant claimed, had been regularly recorded ; and that the possession of John Michaux aforesaid was to he regarded the possession of the defendant:” — to which opinion and instruction of the court, the plaintiff filed a fifth bill of exceptions.

* Verdict and judgment for the defendant. The plaintiff obtained á writ of supersedeas from a judge of this court.

Wickham for the plaintiff.

Samuel Taylor for the defendant.

March 18th, 1815,

*

«Evidence.—See monographic *note*on. “Evidence” appended to Lee v. Tapscott, 2 Wash. 276.

†

IBill of Exceptions—Uncertainty—Effect.—Where a bill of exceptions states a case imperfectly, the cause ought to be remanded for a new trial. Brooke v. Young, 3 Rand. 106, 117, citing the principal case. To the same effect, the principal case is cited in McDowell v. Crawford, 11 Gratt. 387, 398. This rule has long since been abandoned; for, if it were true, it would be putting a premium on carelessness, the exceptor would be encouraged to draw his exception in as confused a manner as possible. See monographic *note*on “Bills of Exception” appended to Stoneman v. Com., 25 Gratt. 887. where it is shown that the later decisions sustain the rule that a bill of exceptions must clearly and distinctly point out the error complained of, otherwise the exception will be unavailing.

‡

íDetlnue.—See monographic *note*on “Detinue and Replevin” appended to Hunt v. Martin. 8 Gratt. 578.

§

(¡Instructions—Weight of Evidence.—on this subject the principal case is cited in Brooke v. Young, 3 Rand. 114.

See *also, foot-note*to Crabtree v. Horton, 4 Munf. 59; monographic *note*on “Instructions” appended to Womack v. Circle, 29 Gratt. 192.

the president pronounced the following opinion of this court.

The court is of opinion, that the instruction of the Superior Court, in the first bill of exceptions, overruling the objections of the plaintiff’s counsel, that the bill of sale from John Webber and wife to the defendant had not been recorded, was correct and proper.

The court is further of opinion, that the statement of facts in the second bill of exceptions is too vague and uncertain to be susceptible of any precise opinion on them. What the condition was, which evidence was offered to prove, is not stated ; and the question presented, whether any condition not in writing could be given in evidence, (without stating the nature of the condition,) it is therefore not necessary to answer.

The statement in the third bill of exceptions, the court is of opinion, is liable to the same objection, and therefore declines giving any opinion thereon ; more especially as the cause must go back for other errors in the proceedings therein.

This court is further of opinion, that the evidence, stated in the fourth bill of exceptions, to prove that the defendant disclaimed any title to the slave in question, under the bill of sale from Webber and wife, after notice of the plaintiff’s title, and ffefore, as is stated, he had perfected his own title, was improperly rejected by the Superior Court.

The court is also of opinion, that the instruction to the jury, which is stated in the fifth bill of exceptions, “that the defendant was a fair purchaser for a valuable consideration,” was incorrect, and ought to have been left to the jury upon the evidence.

*The statement of facts, on which the last instruction was given to the jury, the court is of opinion it is not necessary now to decide on, for the reasons before stated in relation to the second and third bills of exceptions.

On the foregoing grounds, the judgment of the Superior Court is reversed, and the cause remanded to the said Superior Court, fora new trial to be had therein.