McAllister v. McAllister
| Decision Date | 30 June 1851 |
| Citation | 12 Ired. 184,34 N.C. 184 |
| Court | North Carolina Supreme Court |
| Parties | SARAH A. MCALLISTER v. SARAH MCALLISTER. |
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.
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.
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 awarded.
The cases of the State v. May, 4 Dev. 328, and Dowd v. Seawell, 3 Dev. 185, cited and approved.
Appeal from the Superior Court of Law of Richmond County, at the Spring Term 1851, his Honor Judge MANLY presiding.
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 life time 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 1st of 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, amongst 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 registry ought to be produced. The objection was over-ruled, and the reading finished; but, it appearing...
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State v. Grundler
...to withdraw incompetent evidence and to instruct the jury not to consider it has long been recognized in this state. * * * 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 f......
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State v. Green
...to withdraw incompetent evidence and to instruct the jury not to consider it has long been recognized in this state. * * * 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 improper evidenc......
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Hagedorn v. Hagedorn
... ... 760, 140 S.E. 807; State v ... Stewart, 189 N.C. 340, 127 S.E. 260; In re Will of ... Staub, 172 N.C. 138, 90 S.E. 119. 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 ... ...
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State v. Stewart
...had objected. The withdrawal of the testimony was favorable to the defense, and is sustained by a number of our decisions. In McAllister v. McAllister, 34 N.C. 184, Justice Ruffin said: "It is undoubtedly proper and in the power of the court to correct a slip by withdrawing improper evidenc......