Harris v. . Yarborough , 15 N.C. 166 ( 1833 )

In order to show a disturbance by better title, the plaintiff proved that the defendant's intestate before the year 1806, and before the execution of the bill of sale, had by parol, given the slaves to one John Harris the younger, who had sued the plaintiff, and effected a recovery, and obtained possession.

The defendant insisted that the parol gift was in law void as against the plaintiff, and therefore that the recovery effected against him was not by title, and prayed that the plaintiff should be nonsuited, which matter the Judge, with the assent of the parties, reserved and permitted the cause to proceed. The defendant then offered in evidence a deposition, and proved a notice to the plaintiff, that the (167) deposition would be taken on a certain day, "between the hours of ten in the morning and four in the afternoon." But the return of the commission, though it showed the deposition to have been taken at the place and on the day mentioned in the notice, did not show that it was taken between the specified hours of that day, and thereupon the plaintiff's counsel objected to the reading thereof, but the presiding Judge nevertheless received the deposition, holding that where the hours specified in a notice included the whole portion of the day usually devoted to such business the presumption was that the commission was executed within the hours, although not expressly stated by the commissioners.

A verdict was found for the defendant, and a motion was made for a new trial, because the Judge had received the deposition, but his Honor being against the plaintiff upon the point reserved refusal to disturb the verdict, and therefore the plaintiff appealed to this Court. The Court is of opinion that the Judge erred in permitting the deposition to be read. It holds that when the notice for taking a deposition, names the hours of the day within which it is appointed to be taken, it is not enough that the deposition shall appear to have been taken on that day, but that it must also appear to have been taken within the prescribed hours. Such the Court believes to have been the general practice, and this practice it holds to be most consistent with principle. It is necessary that the time and place of taking the deposition, shall conform to the time and place when and where the opposite party is notified to attend. Depositions are often taken ex parte, and it is dangerous to relax any of those rules which have been provided for taking them fairly. But notwithstanding this error, the Court is of opinion that the judgment below must be affirmed. McCree v. Houston 7 N.C. 429, and Watford v. Pitt, Ib., 468, have (168) conclusively established that under the act of 1784 (Rev. c. 225), parol gifts of slaves are void as against creditors and purchasers.

PER CURIAM. Judgment affirmed.