Den ex dem. of Blair v. Miller, 14 N.C. 261, 3 Dev. 261 (1831)

Dec. 1831 · Supreme Court of North Carolina

14 N.C. 261, 3 Dev. 261

Den ex dem. of George Blair v. Elisha P. Miller.

A note given for the payment of rent, and proved by the subscribing witness to -have been executed thirty years ante litem motam, is competent evidence to prove the date of the lessee’s possession. But it is otherwise as to a recent admission of the lessee.

After the new trial granted in this cause (ante 2 vol. 4'0f) it came on to be tried again before bis Honor Judge Daniel, at Burke, on tbe last circuit; when the only question was, as before, whether Greenlee, under whom the defendant claimed, had a seven years possession, so as to perfect a paper title originally defective. To establish the commencement of Greenlee’s possession, the defendant offered a note given for the rentoftheiandjsigned by one Elrod and dated in the year 1800 ; and proved its execution by the deposition of the subscribing witness. No objection was made to the note going to the jury — and a verdict ivas returned for the defendant, .when the plaintiff moved for á new trial because the note was improperly read. Ills Honor discharged the rule, and gave judgment for the- defendant, and the plaintiff appealed.

Seatoell and Gaston, for the plaintiff.

Badger, canlra.

Hall, Judge.

Slight mistakes in offering evidence to a jury, and in the examination of witnesses, particularly when not objected to at the time, are not, generally, sufficient reasons for setting aside verdicts, upon objections taken for the first time after the verdicts are recorded.

- In the present case however, it docs not appear that any mistake lias happened. The note was read for no other purpose than to fix the time, from its date, when Elrod took possession of the land for which this suit is brought, in order to make out a seven years possession. The note was given by Elrod in the year 1800, and its execution proved by the subscribing witness. It cannot be believed that it was then given by Elrod, to furnish evidence at this day, that Elrod was.tenant.-of the land at that time. The strong presumption is otherwise. Í admit that an acknowledgment of the note by Elrod of recent date would not be sufficient.

I think there is not the smallest pretence for granting á new trial.

Per Curiam — Judgment aeeirmeb.