28 S.E. 60 | N.C. | 1897
The plaintiff was introduced as a witness in his own behalf, and offered to testify that he saw Guy Taylor, the alleged witness to the note, make his mark in his name, under the word "witness," upon the note, in the presence of the maker of the note (both of whom are dead) at the time the note purports to have been executed; the said witness, Guy Taylor, having also since died. The defendants objected, but plaintiff was allowed to testify that at the time the note purports to have been executed Guy Taylor was present and he saw him make his mark as witness thereto.
The note, including the signatures of the makers and the subscribing witness, was in the handwriting of plaintiff, and the cross mark appearing upon the note in the name of Guy Taylor, under the word "witness," was made in the presence of the plaintiff by said Guy Taylor. There was no distinctive characteristics about the marks; they were simply the ordinary cross marks.
The jury found the issue in favor of the plaintiff, and from the judgment thereon the defendant appealed.
When an action is brought by the payee upon the promissory note of a deceased maker, the plaintiff is competent to prove the handwriting of the deceased (Peoples v. Maxwell,
The witness to a note, bond or deed is the witness of the parties. He is not a volunteer, but he signs at their request, and must always be *97
called to prove the execution of the writing, or his death shown, or his absence accounted for, and even then his handwriting should be shown, if possible, Jones v. Brinkley,
Therefore, while the payee is competent to prove the handwriting of the witness to the note, whether the alleged maker is living or not, he cannot testify, unless the maker is living, that one who purports to have made his cross mark to a paper as witness in fact did (88) make his mark thereto, as that would be to testify that, at the request of the deceased maker himself, the said person was witness to the transaction, thereby proving the transaction. Ballard v. Ballard,
Error.
Cited: Johnson v. Cameron,