1. Where to an action of debt on a bond of $100 the plea was that it was given to compromise an indictment for a misdemeanor, the act and sayings of the son of the plaintiff, who did not appear to be an agent of the plaintiff, not in the presence of the plaintiff, are inadmissible as evidence.
2. Where there is no proof to establish a fact relied on, the jury should be so instructed by the court.
DANIEL, J.
This is an action of debt on a bond for $100. (481) Plea, that it was given to compromise a misdemeanor. The plaintiff, heretofore, had warranted the defendant to recover the penalty of $100 for selling spirits to the plaintiff's slave, contrary to the act of Assembly. The plaintiff said he was also entitled to damages at common law for the injury he had sustained by the act of the defendant in letting his slave have spirits. When the warrant came on for trial before the justice, the defendant executed to the plaintiff two bonds, each for $100, and the said warrant was dismissed. The defendant was not arrested, nor threatened to be arrested by the plaintiff, on a State warrant for a misdemeanor. The present action is brought on one of these bonds. On the trial of the issue the defendant offered in evidence the acts and conduct of the plaintiff's son, in the absence of the father, towit, in readings to the defendant the act of Assembly, making the selling of spirits to a slave a misdemeanor, and then telling the defendant to compromise with his father, or it would be worse for him. The plaintiff objected to this evidence, but it was admitted by the court, and upon this evidence there was a verdict for the defendant and a judgment consequent thereon. A penalty of $100 for trading with slaves is given by the act of Assembly, Rev. St., ch. 34, sec. 75. The plaintiff had been proceeding against the defendant under this section of the act. By section 77, moreover, of the same act, the trading and trafficking with slaves, as particularly described in section 75, are made indictable. The plaintiff had taken no steps under section 77 against the defendant, nor had he threatened any. The acts and sayings of his son, a third person, not an agent in the matter, and not in the presence of the plaintiff, were not per se admissible evidence against the plaintiff, and without them there was no proof, and the jury should have been so instructed.
PER CURIAM. New trial.
Cited: Brown v. Patton, 35 N.C. 447.
(482)