52 N.C. 441 | N.C. | 1860
The plaintiff claimed title to slave, the property sued for, by a bill of sale from her son, James D. Buie, reciting the payment of $730 as the price given. One Murphy, a brother-in-law of James D. Buie, was the attesting witness. James D. Buie was largely indebted at the time of *341 making this deed, and was then sued on some of his debts. The defendant, as a constable, seized the slave in question, under executions, and sold him as the property of James D. Buie. (442)
The court charged the jury fully upon the questions raised by the counsel as to the fraud alleged in the transaction; explaining that the law looked with suspicion upon dealings among kindred, as these parties were, and required a degree of proof to show fairness that was not required among strangers.
In order to show that the sum mentioned in the bill of sale had been paid, the plaintiff executed a release to James D. Buie, and offered him as a witness. He was objected to by defendant, who insisted that the witness had an interest in supporting his own deed and in showing that there was no fraud in the conveyance; but he was admitted, the court remarking that this went to his credit and not to his competency. Defendant's counsel excepted.
Jane Buie was offered by the plaintiff and objected to by the defendant. At the bringing of this suit she was on the prosecution bond. Afterwards an affidavit was filed by the defendant, and a rule obtained on the plaintiff "to give a prosecution bond on or before the next term, or the suit to be discontinued." Under this rule a paper was filed as a bond, to which no exception was taken until the trial, and then it was objected to because not dated, and because the name of the surety does not appear in the body or condition of the bond. The surety taken in the second instance was admitted to be sufficient. The former bond was left on the files of the court. Upon this showing, the court ruled the witness competent, and the defendant excepted.
Verdict for the plaintiff; judgment accordingly, from which the defendant appealed. The objection to the competency of the maker (443) of the bill of sale as a witness was properly overruled. After the release which the plaintiff executed to him, he had no interest which would disqualify him from testifying in support of the plaintiff's title, and whatever objection there was to him went to his credit and not to his competency.
The exception to the charge of the judge was likewise untenable. His Honor explained the nature of the case fully and fairly, and we are unable to discover anything in what he said, or omitted to say, of which the defendant has any right to complain. *342
In the admission as a witness of the plaintiff's daughter, Jane Buie, we do not concur with his Honor. She was undoubtedly, at one time, one of the sureties to the bond for the prosecution of the suit, and, as such, incompetent as a witness; and nothing is shown which removed that incompetency. Had the plaintiff applied to the court for leave to file another prosecution bond for the avowed purpose of having it substituted for the first, in order to restore the competency of the witness, the order of the court allowing it to be done would have sufficed upon the filing of the second bond, without an actual cancellation of the first. Otey v. Hoyt,
PER CURIAM. Venire de novo.
Cited: Mason v. McCormick,