Cook v. Husted , 12 Johns. 188 ( 1815 )

Per Curiam.

Whether the allowance for the service of the . . pegro girl was not more than she earned, is an inquiry which we do not enter into. That was a matter proper to be determined by the court below, and of which the magistrate was the fit and proper judge. If the slave was the property of the plaintiff: the law will raise an implied promise on the part of the defendant to compensate her for the services of such slave. Both parties claim under Mary Pugsley, as once being the owner of this slave; and there is no sufficient evidence appearing on the return to show that she ever parted with her right to Israel Pugsley, under whom the defendant, claimed. He could not be considered as a purchaser; no consideration whatever- having been given by him, and he acquired no right to the slave, as a gift. A delivery of possession was essential to change the property, and this never took place, for it appears from the testimony on both sides, that Mary Pugsley continued to have the entire and absolute control of the slave, until she sold her to the plaintiff; and the only question, then, is, whether the plaintiff gave sufficient evidence of her right and title to .the slave ? »

It is unnecessary here to say, whether the plaintiff was bound to give any evidence whatever of the execution of the bill of sale, it having been produced in consequence of being called for by the defendant; because, admitting it to be necessary, it was sufficiently proved. The absence of the subscribing witnesses, beyond the control of a subpoena from the justice, was sufficiently shown. The declaration of the plaintiff, as to their place of residence, when forming a part of the conversation inquired after by the opposite party, was competent evidence; but the witness went further, and proved the residence of ¿the witnesses in Westchester county i by information and report from other sources.' The absence of the witnesses beyond the jurisdiction of the court, and the handwriting of Mrs. Pugsley being proved, was sufficient to authorize the reading of the bill of sale in evidence, which, according to the return, vested the title to the slave in the plaintiff. The judgment must, therefore, be affirmed.

Judgment affirmed.