Opinion
(December Term, 1848.)
1. Where the declarations of one, alleged to be an agent, are offered to be given in evidence, it is incumbent on the judge to determine at least so far as to say whether there is such prima facie evidence of agency as to render the acts and declarations of the proposed witness those of the plaintiff.
2. It is the province of the court to pass on every question of the admissibility of evidence.
3. Merely serving a warrant for debt, issued by a justice, is no evidence that the officer was the agent of the plaintiff in the warrant.
4. Where there are more pleas than one, and the jury find on them all, and error is alleged in the charge of the court only as to one, this Court must affirm the judgment below.
APPEAL from MOORE Superior Court of Law, at Special Term in spring of 1848, Settle, J., presiding.
Kelly for plaintiff.
Mendenhall and Iredell for defendant.
In April, 1838, a warrant was brought in the name of Archibald Munroe, guardian of the infant children, etc., and to the use of Cornelius Dowd, trustee, etc., against William Barrett and others, for $49 and interest, due by note. It was executed by one Hedgepeth, a deputy sheriff, and on 5 May following judgment was rendered against Barrett, and stayed on 14th of same month. The present suit was commenced on 15 December, 1843, by warrant on the above-mentioned judgment. The pleas were nil debet, payment, plene administravit. Upon the trial in the Superior Court a witness for the defendant deposed that he was a constable in 1838 in Moore County (where the parties lived), and that in the latter part of the year one Sowell delivered to him some papers against Barrett, which Sowell said he got from Hedgepeth, who was then sick; that he, the witness, took a negro on the papers and committed him to jail, and either returned the papers to Hedgepeth or left them (50) with the jailer. He could not say that the judgment now sued on was one of the papers; and it did not appear that any execution had ever issued on it, nor that Hedgepeth ever had the judgment in his possession. The witness further stated that in a short time afterwards Barrett had the negro again in possession; and that early in 1839, Hedgepeth, after selling a wagon belonging to Barrett, said that he had collected a great deal of money from Barrett, and had received all the debts he had against him, and that soon afterwards Hedgepeth left this State. The counsel for the plaintiff objected to the declarations of Hedgepeth, because he was not the plaintiff's agent and had no authority to receive this money. Upon cross-examination the witness said that he had no knowledge that Hedgepeth ever had the original judgment, or had anything to do with the matter further than to serve the warrant, as appeared from his return on it. The court admitted the evidence, and then instructed the jury that if they were satisfied that Hedgepeth had received the debt under an execution, or as the agent of the plaintiff, they should find for the defendant. The court then submitted the question of agency to the jury with directions that Hedgepeth's endorsement on the warrant was not of itself sufficient to establish his agency; but that if they found it from all the circumstances, their verdict should be for the defendant; if otherwise, then they should disregard his declaration and find for the plaintiff.
The jury found all the issues for the defendant, and the plaintiff appealed from the judgment.
The evidence set forth in the exception, and the questions made upon it, related altogether to the plea of payment, and it is to be regretted that the form of (51) the verdict does not allow a decision to be made exclusively on those questions, as the Court is of opinion that the decision in the Superior Court was erroneous. Upon the objection to the competency of Hedgepeth's declarations it was incumbent on the judge to determine, at least so far as to say whether there was such prima facie evidence of agency as to render the acts and declarations of Hedgepeth those of the plaintiff. 1 Phil. Ev., 103; Roberts v. Gresley, 3 Carr and Payne, 380. It is the province of the court to pass on every question of the admissibility of evidence. But supposing the submitting the question to the jury to imply a decision that there was such prima facie evidence of agency, then that decision seems to us to be erroneous also. There is no evidence of an authority in Hedgepeth to receive the money. He served the warrant, and that is all. It does not appear that he ever had in his hands the bond on which the warrant was brought, nor that he held the judgment when rendered; and it is expressly stated that no execution was issued on it. The case on this point is exactly that of Williams v. Williamson, 28 N.C. 281. Indeed, the jury were told that the service of the warrant was not sufficient to establish the agency. Yet it was left to them to find it upon "all the circumstances," when there was no other circumstance relevant to the point. The witness spoke of "some papers" delivered to him by one Sowell, which he said he got from Hedgepeth. But Sowell's declaration was not competent to establish that fact, and, besides, the witness could not say that those papers had anything to do with this claim. There was, then, no evidence that Hedgepeth collected this debt, nor that he was authorized to collect; and the judgment would be reversed if that were the whole case.
But the jury found all the issues for the defendant, as (52) well those on nil debet and plene administravit as on the plea of payment. Whatever error may have occurred in respect to the last issue was harmless. The other two pleas constitute independent bars, and no error is suggested in them. Therefore, according to the cases of Bullock v. Bullock, 14 N.C. 260, and Morrisey v. Bunting, 12 N.C. 3, the judgment must be affirmed.
PER CURIAM. Judgment affirmed.
Cited: Royal v. Sprinkle, 46 N.C. 506; Creach v. McRae, 50 N.C. 125; S. v. Dick, 60 N.C. 445; Grandy v. Ferebee, 68 N.C. 361; Davis v. Hill, 75 N.C. 228; Francis v. Edwards, 77 N.C. 274; Johnson v. Prairie, 91 N.C. 164; Smith v. Kron, 96 N.C. 296.