.

Duffy v. Murrill.

plaintiff might more speedily and surely regain the possession of his property. The words of the Act are very broad, "replevin for slaves shall be held and deemed sustainable in all cases, &c, where actions of detinue and trover are now proper." It is unnecessary to inquire here, whether these words, broad as they are, can embrace every case, in which actions of detinue or trover for a slave may be sustained. It is sufficient for our present purpose, to show that the Act of 1836 was intended, not to repeal the common law remedy of replevin in such cases, but to apply it, when, by the common law, it could not be used. The writ, in this case, is not issued under the Act; if it had been, the affidavit, required in the proviso to the first section, would have been necessary, and his Honor would have been right in holding, that the plaintiff's proceedings could not be sustained; but it is at common. The writ is "then and there to answer the said Charles Duffy, of the taking and detaining," &c. This is the language of the writ, as set forth in the Natura Brevium. A taking is charged, and without proving it on the trial, the plaintiff cannot entitle himself to a verdict, if the defendant pleads non cepit. Cummins v. McGill, 2 Mur. 357.

PER CURIAM. Judgment reversed and a venire de novo awarded.

ARCHIBALD MUNROE vs. JACOB STUT IS, ADM'R, &c.

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 con stable 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

Munroe v. Stutts.

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 the warrant was not, of itself, sufficient to establish his agency; but that if they found it from all circumstances, their verdict should be for the defendant; if otherwise, then they should disregard his declaration, and find for the plaintiff.

The jury found on all the issues for the defendant, and the plaintiff appealed from the judgment.

Kelly, for the plaintiff.

Mendenhall and Iredell, for the defendant.

Munroe v. Stutts.

RUFFIN, C. J. 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 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 v. 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 and High v. Williamson, 6 Ire. 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 any thing to do with this claim. There was, then, no evidence that Hedgepeth collected this debt, nor that he was authorised to collect; and the judgment would be reversed if that were the whole case.

Coltraine v. Spurgiu.

But the jury found all the issues for the defendant, as 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, 3 Dev. 260, and Morrisey v. Bunting, 1 Dev. 3, the judgment must be affirmed.

PER CURIAM.

Judgment affirmed.

ABNER COLTRAINE vs. JOSEPH SPURGIN, ADM'R, &c.

A. brought a suit on a note, in which B. was the principal, and C. surety. B. was dead and the suit was against his administrator and C. At the return term A. entered a nolle prosequi against the administrator of B. and took judgment against C. alone. C. having paid the debt, brought suit against the administrator of B., who in the meantime had disbursed all the assets in the payment of other debts of equal dignity with that of A. Held, that the administrator of B. had committed no devastavit as regarded C., that C. as a surety, had no further rights than A. had possessed, and A. having relinguished his lien upon the assets of B. by discontinuing his suit against his administrator, the right of the surety, as the substitute of his principal, to obtain priority, could only accrue from the commencement of his action against the administrator of B.

Appeal from the Superior Court of Law of Randolph County, at the Fall Term, 1848, his Honor Judge CALD WELL presiding.

The following case agreed was submitted to the Court.

Jesse Harper held a note on defendant's intestate as principal, and plaintiff as security, on which suit was