Wilfong v. Cline. witness against the defendant, but her declarations certainly were not. At the time the warrant was served on Cline, he admitted he had executed the bond, but declared he never would pay it. This declaration certainly could not operate to repel the presumption of payment from the lapse of time. This may amount to an admission that he had never paid it, but was no evidence that his co-obligor had not. Were the declarations of the representative of John Bost competent evidence against his co-obligor, Cline? We think not. In the case of MCKEETHAN v. ATKINSON, ante. 421, this Court decided that a payment by the principal in a note or bond of any portion of the money due upon it, within ten years before the bringing of the action, would be a sufficient answer to the presumption, and that, upon the ground that a payment is an act which operates to the benefit of both the obligors, and and of which both can avail themselves. Whether the declarations of John Bost would, as to Cline, be competent, we do not decide, the declarations of his administratrix, of what she had heard him say, are not. The record was amended by the magistrate after the Judge's charge, and after the jury had returned their verdict. It then stood as the amendment spoke, and his Honor ought either to have withdrawn his charge, and directed the jury to disregard the evidence as to the declrations of Mrs. Bost, or to have set aside the verdict and granted a new trial. For this error in receiving the testimony of Mrs. Bost, the judgment must be reversed and a venire de novo awarded. Judgment reversed. McAulay v. Earnhart. DOE ON THE DEMISE OF HUGII MCAULAY, v. CALVIN EARN ᎻᎪᎡᎢ . Whether the tenant in possession is the tenant of the defendant, or of one as whose land the premises in controversy had been sold, by virtue of a judg ment and execution, at a Sheriff's sale, is a question of fact, which is to be submitted to the jury, and the deeds under which the defendant entered, are clearly admissible on that subject. Where a paper is proved to be destroyed, its contents may be spoken of without any notice to the other side to produce it. Evidence of "a family arrangement," to defraud creditors by giving off other lands, than the tract in dispute, to other sons as they arrived of age, it not being shown that the father was in debt at the time of the conveyances, is not admissible on the question of fraud. THIS was an action of Ejectment, tried before his Honor Judge ELLIS, at the Fall Term, 1852, of Cabarrus Superior Court. The plaintiff's lessor claimed title from one Solomon Earnhart, sr., the father of the defendent, and showed in evidence several judgments and executions against the said Solomon, sr., a levy upon the premises in question, a sale and Sheriff's deed for the same. A witness was then called for the plaintiff, who testified that the defendant was the son of Solomon Earnhart, sr., and living with him on the land at the time of the sale to plaintiff's lessor, and that on the day after the sale, the father left the premises, leaving the defendant in possession, and was in the habit of returning and taking part in the management of the farm and workshop. The defendant claimed title as the tenant of one Solomon Earnhart, jr., another son of the defendant in the exucution, who claimed title by a deed of bargain and sale from his brother, one John M. Earnhart, who claimed by a similar deed from Solomon, sr. This deed was dated in 1843, and that from John M. to Solomon, jr., in 1844. The plaintiff objected to the introduction of these deeds, upon the ground that the defen McAulay v. Earnhart. dant was estopped from setting up any defence which the defendant, in the execution could not set up, as the defendant went in under him. The objection was overruled, and the evidence admitted, to which the plaintiff excepted. The conveyance from Solomon, the father, to John M. Earnhart, was attacked for fraud, and many witnesses examined. To rebut this evidence, the defendant introduced John M. Earnhart, who, in the course of his evidence, stated, that the deed from himself to his brother, Solomon, was made in consideration of a note for $1200, which was afterwards paid off and destroyed. The plaintiff objected to his speaking of a note, unless he produced it. The evidence was admitted by the Court. Plaintiff excepted. The plaintiff then offered to prove the fraud alleged, by showing that there was a family arrangement, whereby Solomon, sr., gave other tracts of land to other sons, as they came of age, contending, that the plan for defrauding his creditors was preconcerted between the said Solomon, the father, and his sons. The evidence was objected to and rejected by the Court, for which plaintiff excepted. There was a verdict and judgment for the defendant, and peal for error in the matters excepted to by the plaintiff. Wilson, Barringer and Bynum, for plaintiff. ap BATTLE, J. The only questions raised upon the trial, relate to to the admission and rejection of testimony: 1st. Both parties claimed under Solomon Earnhart, sr., the father of the defendant; the lessor of the plaintiff, as a purcha ser at sheriff's sale, under a judgment and execution; the defendant as tenant to his brother, Solomon Earnhart, jr., who was alleged to be a purchaser by deed, dated in 1844, from his brother John M. Earnhart, who claimed under a deed, dated in 1843, from his father, the said Solomon, the elder. Both these deeds were prior to the time when the plaintiff's lessor acquired McAulay v. Earnhart. title; but he contended that Solomon, the elder, was the actual occupant of the land in question, and that the defendant was his tenant, and could not set up any other title as against the lessor, and he introduced testimony, tending to show such tenancy. To rebut this proof, the defendant alleged that he was the tenant, not of his father, but of his brother, Solomon, the younger, and offered the deeds above mentioned, to show his brother Solomon's title, together with testimony tending to show his tenancy under his said brother. The deeds and other testimony were objected to, but were, as we think, properly admitted by the Court, for the purpose indicated. The question of tenancy was certainly one of fact, which was to be ascertained before the rule of law, insisted upon by the lessors, could apply. The testimony introduced by the lessor, to show that the defendant was the tenant of his father, could not conclude the defendant from introducing testimony to contradict it, and show that, in truth, he was not the tenant of his father, but of his brother. The deeds were certainly admissible, to show that his brother had the prior and preferable title from his father, under whom both parties claimed. 2. The witness had undoubtedly a right to speak of the contents of the note of $1200, without producing it, because he swore that he had paid it off, and destroyed it. MCLEAN, 8 Ired. Rep. 522. ROBARDS V. 3. The testimony proposed to be offered by the lessor of the plaintiff, to show that Solomon Earnhart, sr., with the view to defraud his creditors, executed deeds to his sons, as they successively come of age, for different portions of his land, was inadmissi ble, for the reason that it does not appear that, at the time when they were executed, he had any creditors to be defrauded. The bill of exceptions does not set forth a single debt which Solomon Earnhart, the elder, owed at any time, except the one upon which the judgment and execution were obtained, under which the lessor purchased, and it no where appears when that was contracted. Royal v. Sprinkle. We can see nothing, therefore, to show that the Court was wrong in rejecting the evidence. Being unable to find any error in the record, we must affirm the judgment. Judgment affirmed. BARILDA ROYAL v. OBADIAH SPRINKLE. To make the acts and declarations of a person evidence against a party, upon the ground of his being an agent, such agency must be established by evidence, independent of such acts and declarations. ACTION of Trover for a wagon, tried before his Honor Judge CALDWELL, at the Spring Term, 1853, of Wilkes Superior Court. It appeared on the trial, that the plaintiff and defendant had some understanding about the ironing of a wagon for a certain quantity of bacon, and that the wagon and bacon were taken to the defendant's smith shop, where the bacon was weighed and put into the defendant's possession; that some disagreement took place between the parties in relation to the work, and thereupon the wagon was taken home by the plaintiff, and the bacon left. A warrant was brought by plaintiff for the bacon, a judg ment rendered, and an appeal prayed by defendant; but, before the same was carried to Court, one Sturdevant went to the house of the plaintiff, taking with him the cart and oxen of defendant, and told plaintiff that Obadiah said, if he would send over the wagon, it should be ironed for the bacon. This testimony was objected to, but received by the Court, for which de fendant excepted. The wagon was ironed, but refused to be delivered on demand, upon the ground, as defendant contended, that she was first to deliver him the judgment for the bacon. There was much other evidence in the case, but it is not material to be stated, as the only question raised for the determina |