#### Benashley Atkinson *v.*James S. Clarke.

A deed of gift for slaves, which is not attestedbyasubscribing witness, is void.

The case of *Palmer*v. *Faucell {ante 2d ml.*240 ) .approved.

An assignment of slaves, not under seal, is void unless accompanied by a delivery of possession.

This was an action of trespass, for faking from the possession of the plaintiff two negroes, *David*and *Char*lotte. Plea, *not guilty,*and a special justification under final process to the defendant, the sheriff of Pitt, against the property of one *Peyton II. Tunstal.*At the trial before Norwood, Judge, at Pitt, on the last spring circuit, the plaintiff produced a deed of gift dated the 18th of April 1822, whereby *Tunstal*in consideration of the love and affection which he bore to his daughter *Rebecca,,*the wife of the plaintiff, conveyed to the latter the slaves in dispute. This deed was signed and sealed by *Tunstal*
      *172imt was not attested by a witness, and was registered upon proof of the donor’s handwriting *;*and the plaintiff proved a possession of the slaves conveyed by it up to t])e year 1827. The defendant gave in evidence the record of a suit against *Tunsial,*in Bertie County Court, in which judgment was entered up for the plaintiff at November term 1827, upon which *a fu fa,*issued to the defendant, tested of that term, and a return made thereon of a levy upon the slaves in question. From August term 1828, a second *fufa,*issued, but it did not appear to have come to the hands of the defendant, or to have been taken from the clerk’s office. From November term 1828, a *venditioni exponas*issued, reciting the levy made upon the first *fi. fa.*under which the negroes were sold by the defendant — who returned, that the sale amounting to more than the debt and costs, he had applied the residue to the satisfaction of auother execution against *Tunstal,*from Halifax County Court.

The plaintiff then offered

1st. A deed from *Tunstal*to *Mark H. Tettawaij,*dated February 22d 1826, conveying among other things *“ all*“ his, the said *TunsiuVs,*negro slaves, say one hundred “ and three in number, the names, of said slaves being too “ lengthy to insert in this indenture, said *Tunstal*will *“*give the name of each slave to said Tettawaij, when *“*called for.” To this deed was annexed a schedule stating that *“*the names of the negroes contained in the *“*within deed is as follows, viz.” &c giving the names of alarge number, and among them two by the namesjof *David*and *Charlotte.*

2d. An assignment and schedule, made and filed by *Tunstal,*upon taking the benefit of the act for the relief of insolvent debtors,whereby he conveyed all his property not before assigned to *Fettaway,*to the plaintiff. This was signed but not sealed by *Tunstal.*The defendant objected to this testimony, insisting that it did not affect him,, and the objection was sustained by his Honor.

The judge instructed the jury, that neither the deed from *Tunsial*to the plaintiff, nor the possession under it gave the plaintiff title — that if the deed from *Tunstal*to *173
      *Pettaway*was valid, it would pass tbe title of the slaves in dispute to the latter, and the plaintiff could in that event recover of the defendant, for the injury done to his possession of the slaves, if the *David*and *Charlotte*mentioned in the schedule were the slaves in question. His Honor left this question to the jury, who returned a verdict for the defendant, and the plaintiff appealed.

*jiseems*t}laU *fi. fa.*not taken does°not amount to a waiver of a Previous levV-

*Gaston,*for the plaintiff,

objected that the *second fi. fa.*was a waiver of the levy made under the first, and that therefore the defendant had no power to sell; and cited *Jlmyett*v. *Backhoit,se.*(3 *Murph.*63.)

*Hogg*& Badger, for the defendant.

Rueetst, Judge.

The Superior Court does not seem to have erred upon any of the points made in that court.

The deed from *Tanstal*to the plaintiff is void. *(Palmer*v. Faucett, *ante*2 *vol.*240.)

The assignment by Tanstal, when ho took the oath of insolvency, did not pass the slaves ; for it was not by deed, and there was no delivery of possession nor price paid,

The jury have found, that these slaves were not included in the schedule annexed to the deed to *Pettaway*of the 22d of February, 1826, which is signed by both *'Tanstal*and *Pettaway,*proved, and registered with the deed, and purports to set forth the “ names of the ne-groes contained in the deed of trust.”

But it is here contended, that the judgment must be reversed, because th *eft. fa.*from August term, 1828, discharged the seizure made in the preceding January ; and consequently, that there was nothing upon which the *venditioni exponas,*under which the sale was made in January, 1829, could operate.

That *fi.fa.*does not appear ever to have been delivered to the sheriff, or taken out of the office. The cases have not yet gone the length, that the mere making out of a *fi.fa.*in the office, not acted upon,nor even issued, shall amount to a waiver or discharge of a previous lien. It would seem unreasonable, that it should. But however that may be, we all think the point made does not arise in this case.

*174An objection statement of the *ore tema*inci-af'butno^talcen in the court be-lieard'^bi^this court.

uporTan appeal to this court are upon motions for a new trial, nameíy,ieSiU;Cif upon the whole case it is apparent the ver-diet is correct, the judgment will not be re-there may be er' ror in the point Tn other rejects they are similar tionsUS°feXCeP"

The objection was not made in the court below, but for the first time, hero. It is not one arising out of the record itself; but out of the *ore terms*incidents atthe trial. .1 must repeat what was said on this subject in *Hemphill*v. *Hemphill, (ante*2 *vol.*391.) Such points of this kind,as were raised below, and those only, can be h eard here. This is admitted to be so upon a bill of exceptions. But it is sa^’ ^ia^' *oar*cases are the acts of the court, and contain the whole case.

There are, I grant, certain differences between a bill of exceptions and a case stated. The method of correcting the error pointed at in the former, is by writ of error; while, in virtue of our statute, those specified in the latter are reviewed upon appeal. Each bill of exceptions is confined to a single point; whereas .by our practice, many and distinct questions may be stated together. it may be, that there is this further diifercnce: that to a limited extent, our cases may be regarded as reports on rules tor a new trial. I suppose they are so, thus lar ari¿ n0 farther: that if the cause come here after a inotion for a new trial has been overruled, anti tiie case nia(je out appear to contain the whole case m ad o at the trial, *lx*• and fr om that it is clear, that at all events the verdict *must*¡laye jK.en the same way, notwithstanding some wrong •" ° ° ground taken by the court, xt will not be disturbed. coup* *s *° §ave such judgment as tiie court below ought to give ; and if, upon the whole case, the appellant was J10^ to a verdict, nor to a now trial at the hands of the Superior Court, no more ought he get it ¡iere- ^ could, it would involve the anomaly, that the Superior Court was legally bound to give a judgment, which this court is legally bound to reverse. An example of this rule is found in *Grice*v. *Ricks. (ante*62) It was thought here, that the instructions actually given by the judge were erroneous. But the case likewise stated, that another point was made at the trial for the defendant, on which the judge gave no opinion ; and the whole case was set out, including the facts relevant as well to the one point as to the other. The jury found for the defendant, and the plaintiff moved for a new trial and *175appealed. Had the cause rested on the opinion given, this court must have reversed the judgment. Butitap-peared from the facts stated, that whether the ground taken by the judge was right or wrong, the verdict was right upon the other point — not, that the jury might have found for the defendant on that point, but that they were obliged so to ñnd ; because from a defect of proof the plaintiff had not made a case for a verdict under any circumstances, however the law might be upon the facts which he actually proved. If indeed wrong instructions be given, and it do not appear that they were necessari-' ly harmless, a new trial must *follow;*because the revising court cannot know, that the jury would or ought to have given the same verdict, had the directions been different. Of the application of this principle, the case of *Tate*v. *Southard*(1 *Hawks*45) is an instance,, besides many others. But that is entirely opposed to a case, where obviously the jury ought at any rate to give the very verdict they have given, although different instructions had been delivered from the bench. It is a fair presumption, that the jury gave a proper verdict upon proper grounds. But were that presumption erroneous, there is yet no reason for disturbing a proper verdict— . *■which appears upon the whole case to be proper—*because it was rendered upon a bad reason. This comes up to the observation of Lord Mansfield, in *Summers*v. *Regem*( *Cowper*502). Indeed, I suppose that were this a writ of error upon a technical bill of exceptions, and it appeared in the exception itself, that the *appellant*had *no right,*the court would affirm the judgment, though some error might have been committed, for which a reversal ■would have been awarded, had nothing else appeared. Much more may, and will such be the rule in our appeals, in which the case is argued as upon a motion for a new trial in the court below. Thus far, I think, our cases may be considered as reports on rules for a new trial : that the appellee may insist, that the verdict ought to stand, notwithstanding the error complained of, because, upon the whole, it was. right, and does the appellant no. injustice; and to that end, the appellee may ask other *176points made, by him, besides that on which the error is alleged by the appellant, to he stated in the case, accom-pan-C(j |jy |jip fa(qS) 0i, which they were raised. But in n0 caw, as j conceive, ought points to be heard here, at the instance of either party, which were not by him made below. For *it is not*true, that our *cases*are intended, or have been considered as *generally*setting out the *whole case.*They are not like a special verdict, or a case a~ greed ; in the former of which, *all*the facts aro found, and in the latter *all*admitted. Under the former organization of this court, only particular points of law crane here. They might be stated as abstract questions. The duty, as now enjoined, of-giving judgment upon the whole-record, does not- impose the necessity of reversing every judgment, to which is not appended a *case*proving it to be right. The case is in the pleadings and the verdict, *prima fade.*The sufficiency of the facts to support the verdict is presumed, until the contrary appear. And so of the law : proper instructions and right opinions must be taken- as having been given, unless the party specially object to some one given, or the judge refuse to give some one prayed which must be set down — whether by the counsel or the judge-is immaterial, provided it be- verified by insertion in the record, accompanied by a statement of such facts, as raised the point, to which the exception relates. Those facts, and those alone ought «' to bo inserted at the instance of the party appealing, who must be confined here to his exceptions. Were it otherwise, no party could ever hope to have a judgment affirmed, unless all the proof given in the cause and the whole charge of the court be spread on-the-record — a task, the labor and difficulty of which would be intolerable to the judge and bar, and an obstruction to the progress of business, amounting almost to a denial of justice. No facts are necessary, but those which are material to a question made in the course of the trial, or upon the judge’s charge. If facts, irrelevant to those points, be inserted, they cannot be attended to here. They cannot be used for any purpose, but that for which they were stated, namely, the point -appearing to have been made. This *177court cannot tell, what other facts might have been proved, which would repel their force as applicable to a point made here for the first time. As regards the appellant, at least, the whole case is not opened anew, upon the appeal to tliis court; but in general, our *cases*for appeals must be regarded as of the nature of bills of exceptions for specified errors.

This reasoning will of coursc bc correctly confined to-the *ore terms*proceedings of the trial. All those arising-upon the pleadings, verdict and judgment — upon the re- ■ cord lightly speaking — may he taken anew here ; for but one language and one meaning can he found in them by all courts.

In the case now before ns, the question on the discharge- or the continuing of the lien, created, by the seizure in January, 1828, was not made in the Superior Court. None of the facts stated can therefore be taken as stated, in reference to that question. When they are pressed here, for the first time, must wo not ask ourselves, whether we can be sure, that those were all the facts which appeared, touching the point now made ? It may have-been proved, that *thejfieri facias*from August, 1828, was made out by the clerk without the authority of the creditor; and'that he never took it out ofthe office : or, that having at first ordered it, he countermanded it, and never delivered it to the sheriff, nor sued it out: or the execution to Halifax mentioned in the return to the *vendi-tioni exponas,,*(to which- a part of the-money, raised by the sale, was applied,) may have been given in evidence, and been a sufficient authority to the sheriff. The questions made were not upon the authority of the sheriff to. sell *Turistal's*property. The whole dispute was, who-, tlier the slaves were *2’unstaVs*at all,;, so as to he liable to *any*execution that could issue on flic judgment in Bertie. The plaintiff cannot here, upon the facts stated to raise that question, allege that the judgment is erroneous, because those facts do not prove the-judgment right-upon the other point also; or indeed,.upon any other possible objection, that might be ingeniously started, if any particular matter be not excepted to, it must be taken. *178either that it was waived by the appellant, or that it was in the court below otherwise well and sufficiently answered or avoided. Any other rule would convert this court from one of revision to one of reversal *ex necessitate.*I am persuaded, it was created for a very different purpose. Our duty is to set aside verdicts, when they have been, or may have been the consequences of errors actually committed by the judge. But it is equally our duty to suppose, that verdicts do right between the parties, ( which presumption is much fortified when they are satisfactory to the judge who tried the cause, and who refused a new trial,) and to give judgment in accordance with them, unless they appear to be founded in error in law — which it lies on him who impeaches them to show.

Per Curiam. — Judgment affirmed.