Opinion · Nclaw North Carolina

BALLENGER v. ALLEN, 15 N.C. 358 (1833)

15 N.C. 358

Type
Opinion
Court
Nclaw North Carolina
Jurisdiction
Nclaw
Date
1833-01-01
Topic
general

BALLENGER v. ALLEN, 15 N.C. 358 (1833) ALLEN S. BALLENGER v. JOHN B. ALLEN.Supreme Court of North Carolina (December Term, 1833.) In a suit brought by a sheriff against his collector for arrearages of taxes, a settlement between the sheriff and the accounting officer for the county, is not evidence for him.

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BALLENGERv. ALLEN,15 N.C. 358(1833)
ALLEN S. BALLENGER v. JOHN B. ALLEN.
Supreme Court of North Carolina
(December Term, 1833.)
In a suit brought by a sheriff against his collector for arrearages of taxes, a settlement between the sheriff and the accounting officer for the county, is not evidence for him.
ASSUMPSIT, tried beforeStrange, J., at JOHNSTON Spring Term, 1833.
The plaintiff was sheriff of the county of Johnston, and for several years in succession had appointed the defendant to collect the taxes due in two districts in said county.

There were two counts in the declaration; one, for money had and received by the defendant to the use of the plaintiff — a second, on a special undertaking by the (359) defendant, to collect the taxes in the said two districts, and pay over the proceeds to the plaintiff, and for a default in not collecting as he had undertaken to do. The defendant pleaded the general issue and statute of limitations.

It was proved, that the defendant had been the collector of the taxes, in the two districts assigned to him by the sheriff,Page 294for the space of nine years (from 1819 to 1827 inclusive), during which time, the public, county, and poor taxes of those districts amounted to $6,938; and that no final settlement had ever been made between the sheriff and the defendant.

The defendant then proved, that just before this suit was brought, on his being badly hurt, the plaintiff had said, if the defendant died, he should lose five or six hundred dollars by him.

The plaintiff then offered to prove (for the purpose of establishing a larger amount due him than $600, and also for the purpose of repelling the evidence offered by the defendant), that there had been no settlement for the county and poor taxes between himself as sheriff and the county trustee, and the wardens of the poor, for the last seven, of the nine years, that the defendant had been his collector. The plaintiff offered to prove further, the result of a settlement, made since the commencement of this suit, with the accounting officers of the county, when the defendant was not present threat, or a party to the same. The Court permitted him to prove that he had made no settlement for seven years, before the one which he had made since the commencement of the suit, but refused to permit him to give in evidence, the result of the last settlement. There was a verdict for the plaintiff for the sum of $600 — the plaintiff moved for a new trial, because the Court had refused to receive proper and pertinent testimony. The motion was overruled, and judgment rendered, and the plaintiff appealed.
Devereuxfor the plaintiff.BadgerandW. H. Haywoodfor the defendant.
DANIEL, J.
The only reason offered for a new trial is, because (360) the Judge refused to admit in evidence, a settlement of the taxes which the plaintiff had made, with the accounting officers of the county, since the suit was commenced; and, when the defendant was not present, or a party to that settlement. The counsel for the plaintiff has cited several authorities, none of which, in my opinion, bear him out in the position he has taken — As against himself, it is fair to presume every man's words and actions correspond with the truth; it is his own fault if they do not — but it would be in the highest degree, rash and unjust, to found such a presumption, generally, upon the acts, conduct or declarations of strangers, without any authority from the party whom they affect; as to him, they areres inter alios acta. 1 Stark., 51; 3 Stark., 1300. I cannot perceive how the admission of the plaintiff in hisPage 295settlement, that he was largely indebted to the county, would warrant an inference that the defendant had not paid him the monies, which he had received as the agent of the plaintiff, or was otherwise indebted to him. I think, the evidence was properly rejected by the Court. The judgment, therefore, must be affirmed.

PER CURIAM. Judgment affirmed.Cited: Lewis v. Fort,75 N.C. 253.