Note - Vide acc. Hall v. Bynum, 2 Hay. 328, Johnson v. Knight, 2 Car. 237, S. C. 1 Car. Law Rep. 93. Hall v. Bynum was a case in which the subscibing witness had endorsed to the Plaintiff the bond which had been assigned to him; and in such a case, if the subscribing witness had endorsed without recourse to him and was also relwase by his endorse, the Plaintiff, be would be a competent witness, Sillingby v. Knight, N. C. Term Rep. 103.
Hamilton v. Williams, 2 N.C. 160, 1 Hayw. 160 (1794)
Oct. 1794
·
North Carolina Superior Court
2 N.C. 160, 1 Hayw. 160
Hamilton v. Mary Williams.
Macay Judge inclined "to think that the hand-writing of a subscribing -witness, who had-voluntarily become interested in the bond could not' be proved. ' Sed adjoumatur.
Debt upon bond, and non est factum pleaded. The attesting witness was one Gordall Norfleet, and there was an indorsement on the bond, transferring it and its contents to him. The bond itself bore date prior to the time when bonds were first rendered negotiable in this State. It was argued for the Plaintiff, and insisted upon, that the hand writing of Norfleet, the attesting witness, might be proven ; and this was compared to the case in Stra. 34? where the subscribing witness having become the administrator, his hand-writing was admitted to be proven. It was al«o compared to the cases where the witness becomes blind, or is convicted of perjury or forgery, or is made a legatee, or becomes heir. And the evidence in. the present case offered by the Plaintiff was admitted, Judge Macay being on the bench, and a verdict obtained : whereupon, Gen. Dame moved that the verdict might be set aside, the evidence upon which it was grounded, being improper; and be argued that in the case of the executor, administrator or legatee, the law gave them that character, or placed them in that situation, which disabled them to give testimony ; at least they did not acquire such characters or offices by their own independent voluntary act, and in such cases there was no room *161í'»" ¡pro turning any elr.• • b.'-í voni the, ob'igro and Cíe yitue-ís: fot tí se e i'i'.w ¡u-e, not ’.ike the nreseut. if the evidence 5í!b'iiíí;*fl ,i<¡ ¡k'.i c¡rte, i.houh! he allowable, a "-vide dotv v.-onid be. opeivj for fr-i-id, í\s:~3 if would i:r, • .-i'.*/ be !)UÍ in pr.n'.í irc — ¡he forger of a bond won’fl heve sssít’t:ü;>; eÍBe fe do. bti! to rudoríie to fiie subscribing v.rr.ess, and ¡he! wiine«s to sue ísttti eff-ct íbe. recovery upon proof of bis own hand-writing. Ulsould if he e case of usury or of gaming exuding i» the knowledge oí" the wiiiif-s only, as frequently happens, an indorse-meat iike the pre.-R-ní. ond the admission oí* such testimony, would rsTecdcaHy exclude. the troth of the tiymsáo i ios. ¡s¡:(3 make the boot! valid, though in reaii'y it was void hy the ni Sos of law. Should this derision b¡* esta-blislc-d as law. it will immediately become the common pi-aotiee to aSHign aü such bonds <o- the witness. for the. purpose of procuring :i ful-e validity to them. Tin's case, therefore, is not to be assim dated to the cases cited — iit those no mischief results fiom the. admission of proof of the wit ness’s hand-wWiing. It is not to be presumed that the witness will undergo a conviction of forgery or ■perjury, or that a testator, intestate or ancestor, will pro-cura the person that is to be his executor, administrator or heir, to witness n forged instrument, or one invalid in other respects, to the end that after the death of himself, a recovery may he cíTroted by proof of their hand writing. There are but few men have attained to such a degree of baseness, as to contrive frauds to be executed after their deaths ; the. uncertainty itself* of the time of death, which is gonera!lyvie\ve.d as at a distance, is a sufficient guard rgain-¡t any such attempt — hut in this case, and in ail cases like it, the mischief of such evidence is greatly to be apprehended.
Judge IvIacay seemed to be. of this opinion, and lie ordered the judgment to be stayed until this question could he argued befóte moro Judges; and it was adjourned.