Grandy v. . Ferebee

Jan 5, 1873
Versions:68 N.C. 356
Reads, J.

It is common learning that the declarations and acts of a third person are not evidence against a party, unless such third person be his agent. And it is equally well settled that the agency must be established otherwise than by such declarations and acts, before they are admissible. And it is also settled that just as the Court in all other cases must judge of the competency or admissibility of evidence, so in this case the Court must be satisfied that prima Jade the agency is proved before the declarations and acts can go to the jury. Monroe v. Stults, 9 Ired. 49; Williams v. Williamson, 6 Ired. 281. It follows, that to receive the declarations and acts along with other evidence tending to prove the agency, and submit the whole to the jury, from which to find the agency, without explanation that the declarations and acts themselves are not to be considered for that purpose, is erroneous. In this case, the receipt which .the alleged agent gave for the money was a part of the evi *362 den.ce left to the jury, not - merely to show that he received' the money, (for which purpose it would be competent, the-agency being otherwise proved,) but to prove the agency itself, for which purpose it was clearly incompetent.

For this error there must be a venire de novo. It is not ne- • cessary that we should notice the other points made, as they will probably not arise on the next trial, except the point-made by plaintiff, that even supposing the agency proved,, still the great depreciation of Confederate money at that time was constructive notice to the agent and the defendant' that it would not be received. We have so held, where the-receiving agent was an officer, such as Clerk, Sheriff and the-like, or was a guardian, administrator and the like; but the-inclination of our opinion is against the plaintiff upon this point, the agency being a personal one. It would operate as a payment of the debt pro tanto, if it were so received, and would leave the plaintiff to his remedy against his agent.

There is error.'

Per Curiam.

Venire de novo..