77 N.C. 243 | N.C. | 1877
This action was brought on a bond under seal, purporting to have been executed by one John S. Harris as principal and the defendant's testator, John Stanley, as surety. The defendant denied the execution of the bond by his testator. The plaintiff then introduced said Harris (244) as a witness, who testified that Stanley did execute the bond. The defendant objected to this evidence. Objection overruled. Verdict and judgment for plaintiff. Appeal by defendant. The only question is, was Harris, the principal in the note sued on, a competent witness to prove its execution by John Stanley, who appeared to be a coobligor, and who at the time of the trial was deceased? It depends on C. C. P., sec. 343. He was certainly offered to prove a transaction with a person deceased, and he was not a party to the action. At the time of the trial (having been discharged as a bankrupt) he had no interest in the event of the action. So the general question is reduced to this, Had he ever had an interest in the event of the action which but for his bankruptcy would have existed at the trial? We think he never had such an interest. Putting his bankruptcy out of view as not affecting the case, he was in any event liable to the plaintiff (as he did not deny), and if the defendant should pay the debt, he would be liable to him for the debt and costs. His interest was only in the costs, and in that point of view it was with the defendant.
In Mason v. McCormick,
It seems to me, however, that from a comparison of the Code with all the decisions upon section 343, a general rule may be stated thus: In all cases except where the proposed evidence is as to a transaction, etc., with a person deceased, etc., the common-law disqualifications of being a party and of interest in the event of the action are removed. But as to such transactions, etc., the disqualifications are preserved, with the added one not known to the common-law: that if the witness ever had an interest, upon the question of his competency it is to be considered as existing at the trial.
PER CURIAM. No error.
Cited: Mason v. McCormick,
(246)