#### Cutlar vs. Spiller.

yVEFENDANT had given a bill of sale for negroes, without an attesting witness.

Baker, in a very lengthy argument,

insisted that the instrument was void for want of attestation.

Per curiam.

1792, ch. 6, sec. 3, directs “that in all trials at “ law vvhere a written transfer or conveyance of a slave or *62“ «laves, shall be introdaced to support the title of either party, “ the due and fair execution of such writing shall be proved by “ a witness, subscribing and attesting the execution of such “ writing ; but if such witness shall be dead or removed out cf: “■ the state, then the probate and registration of such- writing. e; may be given in evidence.5* This clause supposes the case of. a written transfer produced in the trial, purporting itrthe face of it to have been attested, and directs it to be proved by the attesting witness if to be had, because that is-the best' evidence s-The act did not contemplate the case of an- unattested transfer, and of course has given no directions relative to it;, even the act of 1784, ch. 10, sec. 7, requiring registration of bills of sale of slaves, does not mean to make the transaction void as be», tween the vendor and vendee, for want of registration or altes», tatton, but only so far as regards creditors or put chasers,, who-, may say it is void if all ceremonies required hy the act are not complied with ; but as between vendor and vendee, if none of. them be complied with, the sale is good. The case now before vi3 is out of the act of 1792, and must be decided by the rules of evidence at the common law; and by the common law a deeth is not void for want of attestation, and may be proven by wit-, nesses who did not subscribe it, or by other means.

Note.--The act of 1792 makes a bill of sale unnecessary-where the sale is accompanied with delivery of possession— but should a bill of sale be given, it requires registration ; it would be absurd that a sale by .parol and delivery of possession should be valid ; and that one by deed and delivery of possession should be void, although there is evidence to prove the deed,, though not an attesting witness: Surely there is more solemnity arJ notoriety by the deed, than by the parol contract, especially if the deed be registered. Possibly, if delivery of possession did not accompany the sale, the case might fall under the act of 1784, and then an attesting witness, a bill of sale, and registration, might be necessary ; for the requisites of the act of 1784 are not dispensed with by the act of 1792, except where, delivery of possession accompanies the transaction.