#### HOSEA REDMAN vs. HUMPHREY ROBERTS.

Where to an action of debt on a bond for one hundred dollars, ■ the plea " was that it was given to compromise an indictment for a misdemeanor, the acts 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 in» admissible as evidence.

Where there is no proof to establish a fact relied on, the jury should be so instructed by the court.

This was an appeal from the judgment of the Superior' Court of Law of Iredell county, at Spring Term, 1841,“ his Honor Judge Manly presiding. The plaintiff declared on A bond for one hundred dollars and proved its execution by the subscribing witness thereto. On the trial it was proved that the plaintiff had procured to be issued against the defendant -a warrant for the penalty for trading with one of his slaves, in which the wardens of the poor of Iredell County were not named as parties plaintiffs. Upon the return of the warrant before the justice of the peace, who was the subscribing witness to the note sued on, the plaintiff alleged that the defendant liad sold spirituous liquors to, his slave, and that he had. drunk to such excess as to occasion his death, and claimed from the defendant between three and four hundred dollars as the amount of damages he had sustained. It was further proved that the defendant and plaintiff frequently attempted to compromise their dispute and had several private conferences for that purpose — that the plaintiffs son, either in the house of the justice of the peace, before whom the warrant was returned for trial* or in the yard, (the plaintiff not being present) read the act of Assembly, concerning the trading with slaves, to the defendant, (and the witness to this point swore that the section of the act, prescribing fine' and imprisonment for the offence was read,) and advised the defendant to compromise with the plaintiff or it would he worse with him. Whereupon the parties immediately compromised, by the defendant giving two bonds for one huni*480red dollars each, and the defendant, by order of the plaintiff, was chsctrir&ed from the custody of the officer, who had arrested him and held him in custody with a guard of several men. The defendant then demanded a receipt in full ox-discharge in full from the plaintiff, who observed, in the presence of the justice and others, that all he wanted was his money. The testimony of the witness, who proved the reading of the act of Assembly, was objected to, but overruled by the court. His Honor charged the jury, that, if they were satisfied from the testimony that the bond sued on was executed with an understanding and agreement between the plaintiff and the defendant, that he should not be prosecuted lor the criminal offence of trading with his slave, the bond was void, and the plaintiff could not recover; and this, whether this agreement constituted a part or the whole of the consideration for which it was given. But, on the contrary, if they believed that the bond was executed, and the consideration consisted of an agreement on the part of the plaintiff not to prosecute his suit for the penalty, or not to prosecute his suit for the loss , of his slave, either or both, or was without consideration, they should find for the plaintiff.

The jury found a verdict for the defendant.

The plaintiff moved fora new trial, 1st, because of misdirection by the court; 2d, because of the admission of improper testimony; 3d, becausé there was no evidence to justify the verdict. The motion was overruled and judgment against the plaintiff for the costs, from which he appealed to the Supreme Court.

Caldwell for the plaintiff

cited Anderson vs. Hmokins. Í Dev. 445.

Barringer and Alexander for the defendant

cited Collins vs. Blantern, 2 Wils. 321, Sharp vs. Farmer, 4 Dev. 122, Goodman vs. Smith, 4 Dev. 450.

Daniel, J.

This is an action of debt on a bond for one' hundred dollars. Plea, that it was given to compromise a misdemeanor. The plaintiff, heretofore, had warranted the *481defendant 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 one hundred dollars, 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; to wit, in reading to the defendant the act of Assembly, making the selling of spirits to a slave a misdemeanor, and then telling the defend-' ant 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 one hundred dollars, for trading with slaves, is given by the act of Assembly, Rev. St. c. 34, s. 75. The plaintiff had been proceeding against the defendant, under this section of the aet. By the 77th section, moreover, of the same act, the trading and trafficking with slaves, as particularly described in the 75th section, are made indictable. The plaintiff had taken no step under the 77th section 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. There must be a new trial.

Pee Curiam, New trial awarded,,