High v. Williamson

• Decision Date: 30 June 1846
• Court: North Carolina Supreme Court
• Parties: WILLIAMS & HIGH v. D. J. WILLIAMSON, ADM'R. .

6 Ired. 281

28 N.C. 281

45 Am.Dec. 494

WILLIAMS & HIGH

v.D. J. WILLIAMSON, ADM'R. .

Supreme Court of North Carolina.

June Term, 1846.

The declarations and admissions of an agent, after his agency has ceased, as to past transactions, are not competent evidence against his principal.

To make the acts of one person evidence against another, as his agent, the creation of the agency must, in the first instance, be established by proper evidence, independent of such acts and declarations themselves.

A Constable has no official authority to collect money, except upon execution; and he and his sureties are only liable on his official bond, under the Act of 1818, (Rev. Stat. ch. 24, sec. 7,) giving a remedy to the creditor on that bond for notes, accounts, &c. put into his hands for collection, when it is proved that the Constable was the creditor's agent for collecting the money due on the claims.

The case of the Governor v. Carraway, 3 Dev. 436, cited and approved.

Appeal from the Superior Court of Law of Columbus County, at the Spring Term, 1846, his Honor Judge DICK presiding.

The following facts were presented by the case:

In October, 1835, the plaintiffs recovered a judgment before a Justice of the Peace, against Bradley F. Yates, on an account for $16 65 and costs; and this is a suit, commenced in July, 1842, against the defendant, as administrator of Yates, on the former judgment, and was tried on issues joined on nil debet and payment. On the trial, the defence was, that Yates paid the debt to one Caleb G. Money. On the part of the defendant, it was found, that Money was a Constable in the year 1835, and served the first warrant on Yates, and that, on the trial thereof, he proved the assumpsit on which the suit was brought.

The defendant then further offered in evidence a written receipt from Money in these words: “Received from B. F. Yates one hundred and fifty dollars, on account of notes and judgments put into my hands for collection.” The counsel for the plaintiffs objected to receiving the same in evidence; but the Court allowed it to be read to the jury.

The defendant then further offered witnesses to prove that, in the year 1837, in a conversation between Yates and Money, the former alleged that he had paid to the latter all the claims that Money had as a Constable against him, Yates; and that Money admitted it to be true. To this evidence the counsel for the plaintiff objected: but the Court received it, and the witness further proved, that, among the claims thus spoken of, were some in favor of the present plaintiff, but they could not say that the present was one of them.

The Court therefore instructed the jury, that, if the evidence satisfied them that Money had the claim against Yates placed in his hands for collection, payment to Money bound the plaintiffs; and that Money's acts and declarations in relation to the claim, were evidence against the plaintiffs, on which the jury might find that the claim was paid; for Money was the agent of the plaintiffs, while he had their claims in his hands for collection.

There were a verdict and judgment for the defendant, and the plaintiffs appealed.

D. Reid and J. Winslow, for the plaintiffs .

Strange, for the defendant .

RUFFIN, C. J.

The receipt given by Money to Yates being without date, it does not appear that the payment was made while Money's office of Constable continued. Supposing, then, he was constituted the agent of the plaintiffs by having their claim put into his hands, while Constable, for collection, with or without suit, there would be a question whether the agency, thus created, would last longer than the office, by reason of which the Constable was constituted the creditor's agent. There might also be an objection to the declarations of Money in 1837, that they were made after the expiration of his office and of his agency, and were admissions of past transactions merely, to which it was not...