
    *Lunsford v. Smith.
    July Term, 1855,
    Lewisburg.
    i. Arbitration — Award,—Certain legal questions are submitted by parties to a controversy to an arbitrator, and they agree to be bound by his award. Upon a suit being afterwards instituted by one of the parties against the other in relation to the subject matter of the submission, the award of the arbitrator deciding the questions submitted to him, is the law of the case,
    a. Secondary Evidence — Admissibility of —Testimony in relation to the correctness of the copy of a paper, is not admissible, unless the absence of the original paper is accounted for.
    3. Agents — Evidence of Authority. — To prove the authority of an agent, the parol directions of the principal to him may be given in evidence.
    This was an action of debt on a bond for four hundred and thirty-five dollars, bearing date the 14th of May 183S, brought by James M. Smith against Thomas Lunsford. Issue was made up on the plea of payment, and by consent of parties it was entered of record, that under this plea the defendant might make any defense which he could make under any plea which he could file either under the common law or the act of assembly. Under this state of the record a trial of the cause was had, and there was a verdict and judgment for the plaintiff; which upon appeal was reversed by this court, on the ground that the court had improperly excluded evidence offered by the defendant which went to establish a good defense to the action which might have been set up under the act of April 6th, 1831, Sup. Rev. Code, p. 157.
    When the cause went back, it was removed to the Circuit court of Montgomery county, where it came on again to be tried in May 1847 : On this trial the defendant took three bills of exceptions. The first set *out thq evidence in the cause ; and it appeared, that by deed bearing date the 12th of January 1825, Joseph H. Jett conveyed to John F. Sale four slaves described as then in the possession of Jane Harding, in the county of Northumberland, in trust to secure a debt due to William Terry, and for the indemnity of Terry as his surety. This deed was executed in the county of Bedford, and was acknowledged by the parties before the clerk of the County court of Bedford; and on the 24th of January it was produced in court and ordered to be certified to the County court of Northumberland. Upon the certificate of this order by the clerk, it was on the 13th of June 1825, ordered by the latter court to be admitted to record.
    On the 14th of April 1825 an execution in the name of James M. Smith, executor of James Smith, against William Jett, Thomas Hughlett and Joseph H. Jett, for seven hundred dollars and sixty-nine cents, was put into the hands of the sheriff of Northumber-land. This execution was levied on several slaves, the property of Joseph H. Jett, and among them two of those embraced in the deed to Sale. In these slaves Jane Harding had an estate for her life, and she lived until 1834. Jett’s interest in the slaves was sold, however, and was purchased by James M. Smith. Another of the trust slaves was purchased of Jett in 1830 by G. H. Foushee.
    Upon the death of Jane Harding, the trustee, at the instance of Thomas Lunsford, who had acquired Terry’s interest under the deed of trust, advertised the slaves embraced in the deed of trust for sale ; and the parties having met in Northumberland, they agreed to submit their rights to the award of the late Benjamin Watkins Leigh ; and a statement of facts was drawn up by their counsel substantially as herein before stated ; and it was added that Smith expected to prove that Jett verbally gave up his interest in the '"'two slaves in which Jane Harding had a life estate, to the sheriff, to be sold under Smith’s execution : And they then submitted to Mr. Leigh several questions, the third and fourth of which are as follows : Third. Was the said Jett’s interest in said slaves such property as may be seized and sold under an execution of fieri facias ? Fourth. Is the said property still liable under the said deed of trust ? And if the last question is decided against the said Smith, then if it he proved that the said Jett gave up his interest in the said slaves to be sold under the execution aforesaid, is such sale under' such circumstances valid or not ?
    At the time this agreement for the submission to the award of Mr. Leigh was made, Lunsford purchased the slaves of Smith, and executed to him a bond for four hundred and thirty-five dollars, the amount of his claim under the deed of trust, upon the agreement that if Mr. Leigh decided in his favor, the bond was not to be paid ; but if the decision was in favor of Smith then it was to be valid, as for so much of the purchase money of the slaves : The balance of the purchase money was paid.
    Mr. Leigh made his award, by which he decided that the interest of Jett in the slaves was not such an interest as could be taken on a fi. fa. against Jett. But he further decided that if it could be proved that Jett gave up his interest in the slaves to be sold under the execution, that would give validity to the sale, and perfect the title of the purchaser. That the interest might be sold by Jett, and he might give up his interest to the sheriff to be sold by him, and the sheriff would then act as his agent: that the purchaser at the sheriff’s sale would claim as a purchaser under Jett; that the deed of trust not having been properly reeorded was not notice to the purchaser; and that actual notice of the deed was necessary to give the party claiming under the deed priority over him. But *that the want of due registry would not impair the validity of the deed as against creditors whose debts have not attached upon the subject by force of legal process.
    After the award was made Smith instituted this action, and the defendant relied upon his title under the deed of trust and the award of Mr. Leigh. Thereupon the plaintiff introduced evidence to prove that Jett give up his interest in the slaves to the sheriff to be sold under the execution ; and for that purpose introduced the deposition of John H. Jett. The second, fifth and next to the last questions and answers thereto, were objected to by the defendant’s counsel. The questions and answers are as follows:
    2d. “You say these slaves were sold under an execution in favor of J. M. Smith v. William Jett, Thomas Hughlett and Joseph H. Jett. Do you think that the paper market A is a copy of said execution?” Answer. “I think it is. I never heard of Mr. Smith having any othor execution against them.”
    5th. “State whether you heard any directions given by Joseph H. Jett to Richard Hughlett, deputy sheriff, in relation to the slaves. If so, state what they were and at what time.” Answer. I heard Joseph H. Jett tell Richard Hughlett, the deputy sheriff, to take the slaves and other property, and advertise and sell the reversionary interest which he had in the slaves to satisfy the execution before referred to. He gave up to the sheriff all the property he owned of every description.”
    “You say above that the sheriff sold (the slaves) in his character of sheriff. Did he state at the time that he sold only the remainder interest in them, and that he did so by direction of Joseph H. Jett?” Answer. “I was not present at the time the said ne-groes were cried off by the sheriff, and cannot therefore say with certainty in what character he sold them; but as I had *heard Joseph H. Jett direct him to advertise and sell his interest in them, I- suppose he sold them as sheriff, of the county, and they were advertised with the other property of Joseph H. Jett to be sold.”
    The court overruled the objection to these questions and answers; and the defendant excepted.
    After all the evidence in the cause had been introduced, the defendant asked the court to give three instructions to the jury : Hirst. That if it should appear to the jury from the evidence in the cause, that Joseph H. Jett duly executed and delivered the deed of trust to Sale; and if it should further appear to them from the testimony, that the said deed of trust has never been recorded, yet the want of due registry of said deed will in no wise impair its validity against creditors whose debts have not attached upon the slaves by force of legal process.
    Second. That if it should appear to them from the testimony in the cause, that Jett’s interest in the slaves aforesaid was a vested remainder expectant on the life of Miss Harding, that then the levy of the execution in this case on the said slaves as the property of the remainderman, was illegal and void ; and a purchaser of them under a sale made by the sheriff as sheriff, passes no right to the purchaser. There was no evidence in the record to which the third instruction asked was applicable.
    The court refused to give any of the instructions asked by the defendant; and he again excepted.
    The plaintiff then moved the court to instruct the jury as follows : If the jury believe from the evidence in this cause, that the execution which had been given in evidence was levied upon the remainder interest of Joseph H. Jett in the said slaves, by the sheriff of Northumberland county, and that said remainder interest was sold by the said sheriff under said execution, by the directions of said Jett, to the plaintiff, such *sale vested a valid title of the remainder interest of said Jett, to the said slaves in the plaintiff, and the jury ought to find for the plaintiff. This instruction the court gave; and the defendant again excepted.
    There was a verdict and judgment for the plaintiff for the amount of the bond, with interest from its date; whereupon the defendant applied to this court for a supersedeas ; which was awarded.
    Baxter, for the appellant.
    J. T. Anderson, for the appellee.
    
      
       Arbitration. — See monographic note on “Arbitration and Award.”
    
    
      
       Agents. — See monographic note on “Agencies” appended to Silliman v. Fredericksburg, etc., R. R. Co., 27 Gratt. 119.
    
   ALLLN, P.

This case has already been before this court. On that occasion it was decided, that under the agreement of the parties to give any matter in evidence under the plea of payment which the plaintiff in error might plead, either at common law or under the statute, it would have been competent to have pleaded by way of set-off under the act of April 1831, Sup. Rev. Code 157, the facts which the evidence offered on that occasion tended to prove, and therefore that the court erred in rejecting such testimony.

Upon the second trial the evidence was again offered and admitted ; and the case conies up now on an exception to a decision overruling a motion of the plaintiff in error to exclude portions of the deposition of John H. Jett; and to the refusal of the court to give three instructions asked for by the plaintiff in error ; and to giving an instruction at the instance of the defendant in error. This court having held that under the agreement of the parties it was competent for the plaintiff in error to offer evidence tending to prove that the parties had agreed to refer the questions of law arising out of the controversy between them to the decision of Mr. Leigh, that said questions were so referred and were decided in favor of the plaintiff in error, his decision, according to the former judgment of this court, constitutes the law of the case.

*Mr. Leigh determined, 1st. That the deed of trust under which the plaintiff in error asserted a right to subject the slaves conveyed by the deed of trust to sale for the payment of his debt, had not been duly recorded, so as to make it good against the creditors of the grantor. “But that the want of the due registry would in no wise impair the validity of the deed as against creditors whose debts have not attached upon the subject by force of legal process.” 2d. That a remainder or a reversion of a personal chattel is not such an interest as can be taken on a fi. fa. against the remainder or reversioner. And therefore it followed that the execution, under which the levy was made and the property sold to the defendant in error, did not authorize such levy in 1825, and could not sanction it at the time the decision was made, as that process was then functus officio. 3d. That as the re-mainderman could sell the property himself, if it could be proved that he gave up his interest in the slaves to be sold under the execution, this would give validity to the sale, and perfect the title of the purchaser.

After the testimony had been offered and read, the plaintiff in error moved the court to give three instructions to the jury, which the court refused to give ; and he excepted. I think the court properly refused to give the third instruction as irrelevant; there being no evidence proving, or tending to prove, that the defendant in error had actual notice of the said deed of trust, at or before his purchase of the slaves at the sale made by the sheriff. But I can perceive no objection to the first or second instructions. Each was founded upon the decision of Mr. Leigh, and was pertinent to the issue the jury was trying. The first asked the court to instruct the jury that the want of registry of the deed of trust did not impair the validity thereof against creditors whose debts had not attached on the slaves by force of legal process. And *by the second, the court was asked to instruct the jury, that if it appeared that the interest levied on was a vested remainder expectant upon a life estate, the levy of the execution on said slaves as the property of the remain-derman, was illegal and void, and a purchase of them under a sale made by the sheriff, as sheriff, passed no right to the purchaser. Each of these propositions was settled by Mr. Leigh’s decision in the affirmative; and whether sound law or not, as a general question, was the law of the case as settled by the referee. How far the effect of these legal propositions so settled would be controlled by another portion of his decision upon other facts, if proved, or whether the evidence tending to prove such other facts did prove them, were distinct and independent questions.

The plaintiff in error controverted the fact of a sale by the sheriff under the execution by the directions of the remainderman. There was parol proof, and there was the sheriff’s return bearing upon this point; and the jury were to decide from all the facts in evidence before them, whether the purchaser at the sheriff’s sale could claim as a purchaser under the remainderman himself. By the instruction given at the instance of the defendant in error, the jury were instructed, that if they believed from the evidence that the execution had been levied on such remainder, that the same was sold by the sheriff under the execution by the directions of the remainder-man, such sale vested a valid title to such remainder in the purchaser. This instruction, like the others asked, was predicated on the decision of Mr. Leigh, and though somewhat obscure in not sufficiently distinguishing between a sale made by the sheriff as officer only, and a claim under such official act alone, and a claim as a purchaser under the remain-derman himself, in consequence of his giving up his interest in the property to the sheriff to be *sold, who in that case might be regarded as his agent to sell under the execution ; yet I regard the instruction as substantially complying with the terms of the decision of Mr. Leigh. But it applies to but one branch of the case. The jury may not have believed that the facts were proved to which the instruction applied. And yet by the refusal of the court to give the instructions asked by the plaintiff in error, they may have concluded that the want of registry impaired the validity of the deed of trust against creditors, although their debts had not attached on the slaves by force of legal process ; or that a fi. fa. could be levied on such a remainder expectant on an estate for life, and a sale made by the sheriff in virtue of the execution would pass the title to the purchaser. We cannot say that they did not find their verdict upon some such conclusion ; which would have been directly against the law of the case as settled for the parties by Mr. Leigh, and subject to whose decision the note sued on was given. If the defendant in error had supposed that the instruction, unconnected with that part of the decision which related to a sale by the sheriff by the directions of the remainder-man, was calculated to mislead the jury, he could have moved the court to qualify it, by giving as an addition what in fact at his instance was given as an independent instruction. If all had been given, the whole of the legal questions propounded to and decided by Mr. Leigh would have been fairly before the jury. I think the court erred in refusing the first and second instructions asked for by the plaintiff in error ; but that the third instruction asked for by him was properly refused, and that the instruction given at the instance of the defendant in error was substantially correct.

In regard to the deposition of John H. Jett, parts of which were excepted to, it seems to me the objections *to the fifth interrogatory and the last interrogatory propounded but one, and the answers to said interrogatories were properly overruled. The question, and a most materiaTone under the decision of Mr. Leigh, was whether the remainderman gave up his interest in the slave to be sold by the sheriff under the execution: and evidence of his directions before the sale, is the best if not only evidence to be adduced to prove the fact. I think, however, the court erred in overruling the objection to the answer to the second interrogatory. He was asked whether a paper shown to him marked A, was not a copy of the execution under which he had, in a previous answer, said 'the slaves were sold ; to which he replied that he thought it was; he had never heard of the defendant in error having any other execution against the parties named. The paper is not filed. We do not know whether it -was an official copy or a copy by some other person; and it was improper to give evidence of a copy without some account of the original.

I think the judgment should be reversed with costs to the plaintiff in error,the verdict set aside, and the cause remanded with instructions to award a new trial; and upon such new trial to exclude from the jury the second interrogatory and answer thereto in the deposition of John H. Jett, if again objected to ; and if the same evidence is again adduced, to give to the jury the first and second instructions asked for by the plaintiff in error and refused, provided he again should ask the court to give the said instruction to the jury.

The other judges concurred in the opinion of Allen, P.

Judgment reversed.  