delivered the Opinion of the Court.
Black having, as constable, several executions of fieri facias against one Rudd, levied them op a slave (Joe) in his possession, mortgaged by him, more than two months before, to Haley and Linville, by a deed which had not been recorded; and the mortgagees having, on the next day, taken the slave from the possession of Black, without his consent, and sold or otherwise converted him to their own use, he sued them, in an action of trover and conversion, and recovered a judgment for damages equal to his estimated value. Against that judgment they now urge two objections:—first—that there was no sufficient proof that at the time of the levy, Black was de jure a constable; and, second—that the assessment of damages was exorbitant.
It was certainly necessary to a recovery, that Black, should shew that he was constable, and had, therefore, acquired, by the levy of the executions, such a special property in the slave as entitled him to damages; and we think that he sufficiently established his legal authority, by records of the County Court, shewing successive official bonds given by him, biennially, several times, and the last time within less than a year before i? v i the levy. The record does not, it is true, show that he took the prescribed oaths of office; nor does it expressly show any order appointing him constable, or allotting to him any particular district. But these omissions are not, in our opinion, material. Certainly, as it appears, that he had been recognised by the County Court, for many years, as a constable, and had frequently given bond and security as such, we would not be allowed to presume that he had not been legally appointed and qualified; on the contrary, the legal, as well as rational presumption is, that he was regularly and fully appointed. And moreover if, at the date of his last bond, a new oath was necessary, and if, in the absence of any positive evidence respecting the administration of such an oath, we could presume that it had been pretermitted, and even, if also, in consequence of that failure, he could not have had legal authority to act officially — still there is parol proof of the fact that he was properly qualified, and as such evidence does not contradict the record, and only confirms a presumption fairly arising from it, we do not doubt its competency, and effectiveness.—And there can be no doubt that, his appointment was not invalidated by the non-allotment of a special district. The law respecting constable’s districts is altogether directory.
But the other objection to the judgment is more formidable.
The mortgage, for want of registration within the
If this judgment stand, there must be restitution of a part of it, either to the mortgagor or the mortgagees. If it should be made to the former, the rights of the latter
We are, therefore, of the opinion that, as the aggregate amount collectable on all the executions in the hands of the constable, against Rudd, was less than the assessed vale of the slave, and the jury found the amount of that value, in damages, the verdict is for a larger sum than the facts and the law allowed.
Wherefore, the judgment is reversed, and the cause remanded for a new trial.