35 N.C. 1 | N.C. | 1851
TROVER for a bed, and a variety of articles of household furniture, brought by the plaintiff, as administrator of Rachel Bunting, against the defendants, Coble and Staly.
It appeared in evidence that the intestate, Rachel Bunting, who had lived in the house of defendant Coble for fifteen years, died on 27 September, 1846. Defendant Coble, after her death, sold the property in question to defendant Staly, who removed it to his own house. Defendants relied for title on a bill of sale for the property, purporting to have been made by the said Rachel to defendant Coble, and to be witnessed by defendant Staly. This bill of sale was offered in evidence, upon proof of the handwriting of the said Staly. A bond by Coble to Staly was also offered in evidence, purporting to have been made at *18 the same time with the bill of sale, conditioned for the support of the said Rachel by Coble, during her lifetime. This was in like manner attested and proved.
Plaintiff insisted that these papers were forgeries, after the death of the said Rachel, and offered evidence tending to show that they were not in existence during her lifetime, but were made subsequently. To rebut this evidence, defendants proved that a few days before the death of Rachel, the defendant Staly came home from her house with two papers, which he filed among his deeds. Defendants then (3) proposed to prove that at that time, Staly said that he had been at the house of Coble, and had written a bond for the support of the said Rachel by the said Coble, and a bill of sale from Rachel to Coble for the property in controversy, and that the papers which he then had with him were the bond and bill of sale, the first having been executed by Coble and the latter by Rachel, on that day. This evidence was objected to on the ground that it consisted of the declaration of the defendant only, and the objection was sustained by the court, and the evidence rejected.
A witness testified that after the alleged sale to Staly, in 1847, he purchased from defendant Coble a flaxwheel, as the property of the said Rachel, and the witness went on to say that at the time of the sale the defendant spoke of it as the property of the said Rachel. Upon cross-examination defendant's counsel proposed to give in evidence all the declarations of Coble at that time, which, upon objection, the court refused to permit.
A verdict was returned for the plaintiff, a rule for a new trial was moved for and refused, and judgment rendered on the verdict. Appeal, on the ground of error in the judge in rejecting competent evidence.
In the trial of this cause below, the only error committed, that I can perceive, was in receiving evidence of the handwriting of Staly, the subscribing witness, to prove the execution of the papers offered in evidence by the defendant. The testimony, however, was (4) not objected to by the plaintiff, and, of course, it was received by consent. The error, therefore, was not in the action of the court; and neither party can now object to it. The general rule of evidence is that when a deed or other paper-writing is attested, it must be proved by the attesting witness, if he is capable of being examined. If not so capable, proof of his handwriting will be sufficient. 1 Phillips Evidence, 473. Among the causes enumerated by Mr. Phillips for admitting *19
proof is that of an interest acquired by the witness since his attestation. In Godfrey v. Morris, 1 Strange, 36, the attesting witness had, subsequently to his witnessing the bond upon which the action was brought, become the administrator of the obligee, and he was, therefore, plaintiff in the action. His handwriting was proved, because the interest had been created by the act of the law; it was thrown upon him by law, and was assumed for the benefit of others. And the rule has been extended to cases where the witness, after attestation, married the plaintiff, who sought to establish the instrument. Bulkley v. Smith, 2 Esp., 697. But in no case that I have been able to find does the rule operate where the party seeking to prove the instrument has created the disqualification, or been the means of doing so, under circumstances justly subjected to suspicion of fraud. In other words, the circumstances must be free from all suspicion of fraud. This principle was adopted in our State at an early period. In Hamilton v. Williams,
The proposition of the defendant as to the declarations of Coble was too broad. All that he said at that time upon the subject to which his declarations, as proved by the plaintiff, related, would have been competent. But defendant did not so qualify his proposition. As (7) stated by him in his bill of exceptions, he wished to prove all that he said at that time. It might have embraced declarations irrelevant to the issues, or, if relevant, not connected with the declarations proved by the plaintiff, and forming no part of them. A party wishing for a venire de novo, because of testimony improperly rejected, must in his bill of exceptions set forth what the evidence was that he tendered, and not its effects, to enable the Court to see its relevancy. This evidence was properly rejected.
PER CURIAM. Affirmed. *21
Cited: S. v. Purdie,