Shenck v. Hutcheson, 5 N.C. 432, 2 Car. L. Rep. 432 (1816)

Jan. 1816 · Supreme Court of North Carolina

5 N.C. 432, 2 Car. L. Rep. 432

Shenck v. Hutcheson.

This was an action of trover brought to recover the value of two fifty dollar bank notes, one on the Bank of the United States, the other on the Farmers and Mechanics’ Bank of New-York, which the plaintiff alleged he had lost in October, 1812. He proved that he had in possession a fifty dollar note on the Bank of the U. States, which had been cut in two and pasted together, and looked dirty; that the defendant had passed a fifty dollar U. States note to a merchant, and the plaintiff’s witness, who had seen the note in possession of the plaintiff, upon seeing it in possession of the merchant, believed it to be the same note which he had seen the plaintiff have; that he had possessed several fifty dollar notes on one of the Banks of the State of New-York, not long before the alleged loss; that the defendant had been seen to have a fifty dollar note on a Bank in New-York, as well as the one passed to the merchant; that upon the defendant’s being asked where he had gotten the notes, he said he had won them from a certain man by the name of Wauhop, who had exhibited wax figures at Lincolnton, in January, 1813. The deposition of Wauhop was taken, who swore that he did not play at cards or gamble with said Hutcheson in any way, or let him have any money. The plaintiff further proved, that the defendant offered two fifty dollar notes to a man who handled a great deal of money, no way connected with him, for safe-keeping. The plaintiff offered no evidence of the loss of the notes but his own declarations in Oct. 1812, and afterwards, and that the defendant had been seen hunting for the notes, as he the defendant said.

The Court charged the jury that it was proper for them to receive the declarations of the plaintiff, connected with the other circumstances, to ascertain the loss; and upon this evidence, the jury found a verdict for the plaintiff: and a new trial was moved for on the ground of a misdirection of the Court as to the evidence.

Question. Was it proper to receive the declarations of plaintiff, connected with other circumstances, to prove the loss of the notes? If proper, judgment for plaintiff; if not, a new trial to be granted—otherwise not.

Seawell, J.

delivered the opinion of the Court:

The only point submitted to this Court is, whether it was proper to admit the declaration of the plaintiff, together with other circumstances, to prove the loss of the notes: And we are all of opinion that it was. For we hold, that in all cases the acts of a person can be given in evidence for him, that his declarations in relation to such acts, must necessarily be admitted; as in the case of a claim, demand or tender: For in the first two cases, it is the declaration which constitutes the act, and in the latter, they form part of it. What these “ other circumstances" were, does not appear in the case; but in answer to the general question stated, it is, easy to state a circumstance proper to be connected with the declaration. Such, for instance, as that the party was seen with his friends and servants diligently searching the road. If not appearing to us, therefore, that these declarations were improperly admitted, we can see no reason for disturbing the verdict.—Rule discharged.