#### AUGUSTUS GWYNN vs. ANDREW SETZER.

In an action of deceit in the sale of a slave, the plaintiff must prove the sale; and if tiie contract of sale be evidenced by writing, that must be produced and proved by the subscribing witness, of its absence accounted for.

Action on the case for a deceit in the sale of a slave, tried before his Honor, Judge Dick, at the last Spring Term of Caswell Superior Court.

The plaintiff declared for a deceit in the sale of a slave named Jack. He proved by a witness, one Stonestireet, that he was present at the sale and delivery of the slave, Jack, to the plaintiff; that the consideration" of the sale was the sum of $1075, which was paid down. The witness further proved that the defendant informed the plaintiff, before the contract was closed, that he would only warrant the title of the slave, and it was agreed that ¥m. B. March should write the bill of sale; March did write the bill of sale as requested by the parties; it was executed by the defendant, witnessed by March, and delivered to the plaintiff.

*383The defendant’s counsel made the point, that as the contract between the parties had been reduced to writing, the writing itself should be produced, and insisted that all other evidence of the contract of sale should be ruled out. The plaintiff’s counsel contended that his action was brought for a deceit and not for any breach of warranty in the paper writing, and, therefore, that it was not necessary to produce the writing; that it was sufficient for the purposes of this action for him to prove the payment of the purchase money by him, and the delivery of the slave by the defendant.

The Court was of opinion that the bill of sale, or contract in writing, which had been proved to exist, must be produced and proved, before the plaintiff could proceed in his action.

The plaintiff then produced the following instrument, viz:

“ Eeceived of Augustus Gwynn ten hundred and seventy-five dollars, in full payment of a negro boy named Jack, aged twenty-two; which boy I warrant the right and title to, and warrant nothing further. Given under my hand and seal, this 5th day of November, 1853.”

Andrew Setzer, [seal.]

Witness, Wm. B. Mcureh.

The witness, March, not being present, the plaintiff proposed to prove the instrument by other testimony, insisting that it was not a bill of sale, but simply a receipt for the purchase money. But the opinion of the Court was against the plaintiff. In submission to this opinion he took a nonsuit and appealed.

Moore and Bailey, for the plaintiff.

Morehead, for the defendant.

Battle, J.

To entitle himself to recover in his action for a deceit, the plaintiff was bound to prove that the defendant had sold him the slave in question.

The sale might have been made in either of two ways, by a bill of sale, or, by a parol sale, accompanied with the actual delivery of the slave. Rev. Stat. ch. 37, sec. 19 ; Choat v. *384 Wright, 2 Dev. 289 ; Caldwell v. Smith, 4 Dev. and Bat. 64. It was, in fact, made by a bill of sale, for the instrument produced was undoubtedly such. Fortesque v. Satterthwaite, 1 Ire. Rep. 566 ; Respass v. Lanier, 8 Ire. Eq. Rep. 281; 1 Sheph. Touch.; 30 Law Lib. 388. The question then, is, whether the contract of sale, having been made in writing, the plaintiff could prove by parol, a sale and delivery, with a view to his action for a deceit in such sale. His counsel contends that he can, assigning as a reason, that his action is not founded upon any warrant}, or other thing contained in the paper writing, but upon something dehors, to wit, the deceit.

The argument is ingenious, but we do not assent to its correctness. Its tendency is to evade the strong rule of evidence, that inferior testimony is not admissible, where the case admits of a higher grade. The very offer of the inferior, creates a suspicion that the party fears the effect of the higher, and is, therefore, reluctant to produce it. It is not denied, that a written transfer of a slave is higher evidence of the sale than parol proof of a sale and actual delivery. Why not require him to produce it, when it appears that he actually had it in his possession? Prom the case of Choat v. Wright above cited, it is manifest that the Court was very reluctant to decide that the statute of frauds (Rev. Stat. ch. 50, sec. 8; R. O. ch. 50, sec. 11,) did not require all sales of slaves to be in writing. It was the case of the sale of a slave in which there was no bill of sale, or memorandum of the sale in writing, and it was objected in argument, that it could not be supported on that account. The Court say, “ we should lend a ready ear to any plausible argument tending to prove that this case is within the statute of frauds ; for, we feel that all the mischiefs are as apt to arise out of executed, as executory contracts; but the words of the statute are too strong and plain to be got over.” After showing that the language of the statute did not admit of the construction contended for, the. Court thus concludes, “ we are aware of the great inconveniences that will arise from this construction, and that has made us very reluctant to adopt it; for, the same fraud and *385perjury will be practiced in tbe dispute, whether the contract was one to sell,’ or, of sale,’ as in ascertaining the particular terms of a contract to sell, and thus, all the benefits intended by the Legislature, be defeated.”

In the present case, we are not bound by the words of any statute, but are called upon to uphold a great conservative principle of evidence. The plaintiff cannot get along with his action, without proving a sale. That sale was effected by means of a contract, the terms of which were, at the time, reduced .to writing, and signed and sealed by the defendant. That writing must then he produced and proved by the plaintiff, as the law requires. If the plaintiff fail to produce it, he must show its loss, before he can be allowed to introduce any inferior testimony. The plaintiff having failed to do this on the trial, his Honor was right in giving the judgment of nonsuit, and that judgment must be affirmed.

Per Curiam.

Judgment affirmed.