Munroe v. Stutts

• Decision Date: 31 December 1848
• Citation: 9 Ired. 49,31 N.C. 49
• Court: North Carolina Supreme Court
• Parties: ARCHIBALD MUNROE v. JACOB STUTTS, ADM'R, .

9 Ired. 49

31 N.C. 49

ARCHIBALD MUNROE

v.JACOB STUTTS, ADM'R, .

Supreme Court of North Carolina.

December Term, 1848.

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.

It is the province of the Court to pass on every question of the admissibility of evidence.

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.

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.

The cases of Williams v. Williamson, 6 Ire. 281, Bullock vs. Bullock, 3 Dev 260, and Morrisey v. Bunting, 1 Dev. 3, cited and approved.

Appeal from Moore Superior Court of Law, at the Special Term, in the Spring of 1848, his Honor Judge SETTLE presiding.

In April, 1838, a warrant was brought in the name of Archibald Munroe, guardian of the infant children, &c., and to the use of Cornelius Dowd, trustee, &c., against William Barrett and others, for $49 and interest, due by note. It was executed by one Hedgepeth, a deputy sheriff, and, on the 5th of May following, judgment was rendered against Barrett, and staid on the 14th of the same month. The present suit was commenced on the 15th of 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 with the jailor. He could not now 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 any thing 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...