Selby v. Clark

11 N.C. 265 | N.C. | 1826

Tayeor C. J. —

The general rule, which requires the proof of a bond to be made by the subscribing witness, has undergone various relaxations, the first of which-seems to have occurred in Goghlan v. Williamson, 1 Doug. 93, which was certainly a strong case, since sides t!ie impossibility of obtaining the attendance of the witness, there was the defendant’s admission of the debt. The rule which now appears to be established in England is, that the secondary evidence is admissible, where the witness is out of the jurisdiction of the Court, so as not to be amenable to its process. Ido'not recollect any practice in this State which authorises a proof of the hand-writing under a temporary absence of the witness, and without a change of domicile, which I think it would be dangerous to establish, on account of the abuses to which it might lead. For a subscribing witness who might alone bo conusant of the corrupt consideration of a bond, might be sent over the line to suppress all proof except that of the execution. But where a man leaves the State in the exercise of a public duty, as in this case, as all presumption of collusion is thereby repelled, justice ought not to be delayed or interrupted by his absence. — I think therefore, it may fairly be considered as coming within the reason of other admitted exceptions to the rule, and that there ought therefore to be a new trial.

Hall Judge

—If the Defendant could not have dispensed with the testimony of the witness Sines, it would' have been incumbent on him to have-taken his deposition, because lie could not procure his personal-attendance. The witness being absent in the discharge of duties imposed upon him by law, so far resembled a witness whose place of residence was without the limits of the State ; of course, his deposition might have been taken, if tho party had thought proper to do so 3 but he was not obliged to do so, because it is a rule of evidence in our Courts, that the hand-writing of a documentary witness may be proved, provided he lives without the limits of the State._-I therefore think, that the rule for granting a new trial should be made absolute.

Henderson J. concurring,- —

Judgment reverse^