Treasurer of the State v. Nall, 1 N.C. 5, 1 Tay. 5 (1799)

March 1799 · North Carolina Superior Court
1 N.C. 5, 1 Tay. 5
Treasurer of the State versus Nall

Treasurer of the State versus Nall.

THIS was a proceeding by scire facias against the defendant, who, it was suggested, had fraudulently purchased the property of a sheriff, upon an execution issued against him, upon a judgment recovered by the State.

To prove the fraud, the Solicitor-General offered as a witness for the plaintiff, a collector of arrearages, appointed under the act of 1793, to collect monies due from the delinquents to the State and who is thereby allowed 8 per cent. upon the amount of cash and certificates by him paid into the treasury.

The case of Dixon and others versus Cooper, in support of the admissibility of the witness, was cited from 3 Wilson, where it is determined, that *6a factor who sold for the plaintiff and was entitled to one shilling in the pound, was a competent witness to prove the contract of sale.

*5A Collector of arrearages is not a good witness, to proved fraud against a defendant charged with fraudulently buying a Sheriff's property.

*6Henderson, for the defendant,

contended that the witness was incompetent.

By

the Court.

The rule of law is that unless the witness be interested in the event of the suit, he shall be admitted; except in those cases, which upon their own circumstances, have been differently established by solemn decisions.

This witness is directly interested in the event of the suit, since his commissions must be measured by the amount of the recovery against the defendant, which therefore he is concerned to enhance. The case cited from Wilson is an exception to the general rule arising from necessity and the usage of trade; the factor is concerned both for the vendor and vendee, and his testimony may be resorted to by both parties, in case of any dispute. He is an agent by whom alone the sale can be proved; but the collector is not necessarily acquainted with the fraud, much less is he exclusively so, since other witnesses have already spoken to it.