This action was brought by the plaintiff's intestate, who alleged that the defendant, as sheriff, under an execution issued against the *Page 252 (342) property of one M. S. Littlefield, seized certain personal property belonging to the plaintiff. The defense was that although the property was in possession of the plaintiff's intestate at the time of the levy, yet said Littlefield owned the property at the time the judgment was rendered and upon which said execution issued, and that said judgment was in favor of a third party to whom Littlefield was indebted. Upon issues submitted the jury found the following facts:
1. Littlefield conveyed the property — horses, carriage, and harness — to plaintiff on 26 April, 1869, for a valuable consideration, and without intent to defraud the creditors of Littlefield.
2. Littlefield retained property sufficient and available for the satisfaction of his then creditors.
3. The plaintiff is entitled to nominal damages; the value of the property when seized was $625, and the value of the property capable of redelivery is $125.
Upon this verdict, judgment was rendered for the plaintiff, and the defendant appealed. The exceptions to evidence and other facts necessary to an understanding of the opinion are sufficiently stated by Mr. JusticeBynum in delivering the opinion of this Court. Upon the authority of Jones v. Ward, ante, 337, the defendant abandoned here one of his grounds of appeal, namely, that an action for claim and delivery will not lie against a sheriff for a wrongful seizure of property under an execution in his hands. He does rely, however, upon two exceptions to the ruling of the court taken by him (343) in the progress of the trial in the court below:
1[.] After the jury had been impaneled, the defendant claimed that the affirmative of all the issues raised by the pleadings was upon him, and that he had the right to offer the first evidence, and, also, to open and conclude the argument before the jury, if the plaintiff offered any evidence.
So far as the case shows (and we must assume it to be so), the issues submitted to the jury were agreed upon by the parties. There were seven written issues and among them were the following:
Did M. S. Littlefield convey the property — horses, carriage, and harness — to Churchill; and if so, when?
If said conveyance was made, was it for valuable consideration, or was it voluntary and without valuable consideration?
Did M. S. Littlefield retain property fully sufficient and available for the satisfaction of his then creditors? *Page 253
These were affirmative issues material to the plaintiff's right of recovery, and to establish them the burden of proof was upon her; and that would give the plaintiff the right to open and conclude, if the defendant offered any evidence. After agreeing to these and other affirmative issues, it will not do for the defendant to fall back and say that upon the pleadings the affirmative of all the issues raised was upon him, and he had the right to open and conclude. It was the duty of the jury to respond to the issues as agreed upon and submitted; and as they are material, the Court will, to support them, assume that the pleadings were, or were intended to be, amended to suit the issues. But even upon the pleadings — the complaint and answer — the material issue made was whether the plaintiff's conveyance of the property from Littlefield was bona fide and for value. The plaintiff could not have been entitled to recover without establishing the affirmative of that issue. The plaintiff alleges this bona fide ownership in the plaintiff at the time of the seizure. This is denied in the answer, and the issue is thus formed, the affirmative of which is upon the plaintiff. But the defendant does (344) not stop with the denial of the plaintiff's title, but the pleader very ingeniously, and apparently for the purpose of obtaining the technical advantage of the opening and conclusion, goes further and alleges that the plaintiff's title is fraudulent and void; and then he says that this is an affirmative issue on his part, which gives him the opening and conclusion. This is illusory, for the main question would still be as before — Was the plaintiff the bona fide owner of the property at the time of the seizure by the sheriff? — and her right of recovery would depend upon her establishing that fact by proof. We think in both points of view the plaintiff had the right to offer the first testimony, and, in case the defendant introduced evidence, had the right also of the opening and conclusion. 1 Greenl. Ev., sec. 74; McRay v. Lawrence, 75 N.C. 289.
2. The plaintiff offered in evidence a paper-writing purporting to be a conveyance of the property in suit executed by Littlefield to the plaintiff's intestate, and dated 26 April, 1869. The defendant offered evidence tending to prove that Littlefield was in New York on 27 April, 1869, and then asked Mr. Gatling, a witness introduced by him, if he, the witness, had received from Littlefield on the day it bears date in the city of Raleigh a letter in the following terms: "Raleigh, 14 April, 1869. Mr. Gatling: I am compelled to leave by the first train without seeing you. I inclose check on Mr. Swepson for $1,000. I make it thirty days. He owes me. Your servant, etc., M. S. Littlefield." The letter was not produced, and the witness stated that he was satisfied that he had it at home, and could find it upon a thorough search over his papers. In the absence *Page 254 of the letter, the plaintiff objected to the witness answering the question, and his Honor sustained the objection. That is no error in that ruling.
The defense to the action set up in the answer and mainly relied on is that at the time Littlefield conveyed the horses and carriage to (345) Churchill he had no other property and was indebted to the execution creditors for the satisfaction of whose debts the defendant seized the property; and that the conveyance was voluntary and without any consideration. Upon this allegation one of the issues submitted to the jury was, "Did Littlefield convey the property to Churchill for a valuable consideration, or was it voluntary and without consideration?" Another was, "if it was made for valuable consideration, was it with intent to hinder, delay, or defraud creditors?" Both these issues were found for the plaintiff, and disposed of the case. Upon the trial of these issues, it is evident that the letter of Littlefield to Gatling, ruled out by the court, was both immaterial and irrelevant, and, therefore, incompetent. If the conveyance was bona fide for full value and without fradulent intent, as the jury found, it was no odds whether it was executed on 26 April, 1869, or any other day, or whether he was indebted or not, or had or had not any other property. Reiger v. Davis, 67 N.C. 185;Worthy v. Caddell, 76 N.C. 82. But in no conceivable view was the answer to the question ruled out competent evidence. Neither Littlefield nor Gatling was a party to the action, and any communication between them was res inter alios acta. The declaration of one to the other, verbal or written, were mere hearsay — hearsay, not of a fact nor of an intent, but of a declaration of an intent. Suppose the letter had been produced and read upon the trial: did Littlefield really intend to leave on the first train, or was the declaration made for a purpose? Did he in fact leave? Did he leave then? Did he return before the 26th? Did he go to New York and remain until 27th April? It is thus apparent that the letter would neither establish nor tend to establish anything. The intent, even if real, proves no fact in this case, and the admission of such evidence would lead to a sea of uncertainty. The proposed testimony was, therefore, inadmissible, first, because it is the statement (346) of a third person not a party to the action as to the motives of Littlefield, when such motives are no part of the res gestae. Even the declaration of third parties that they killed the deceased are inadmissible upon the trial of the accused for murder. S. v. Duncan,28 N.C. 236; second, because Littlefield himself, who was not a party to the action, was a competent witness to prove his whereabouts on 26 April. His declarations are hearsay and are excluded where the witness himself could have been produced or his testimony procured. Whart. Ev., secs. 247, 257; Carrier v. Jones, 68 N.C. 130. *Page 255
If the letter itself had been admissible in evidence, whether its contents could have been thus proved without its production in evidence is a question which does not properly arise in the view we have taken. But it may generally be said that whether the writing whose contents are in controversy be one which the law requires to be in writing, or whether it is a contract put in writing by the parties, or whether it belongs to neither class, if it is one whose meaning it is important to preserve accurately for the purpose of justice, the policy of the law requires the original to be produced if practicable. "For lex scripta manet, while memory as to words is treacherous, and even though not memory, but a written copy be offered, such copy has between it and the original the possibility of mistake or falsification." Whart. Ev., sec. 60; Greenl. Ev., secs. 88, 463.
PER CURIAM. No error.
Cited: Hudson v. Wetherington, 79 N.C. 4; Brooks v. Brooks, 90 N.C. 146S. v. Shields, ib., 694; Wallace v. Robeson, 100 N.C. 211.
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