Note. — Vide Anonymous, 2 Hay. 74.
- v. Brown's Executors, 2 N.C. 260, 1 Hayw. 260 (1795)
Sept. 1795
·
North Carolina Superior Court
2 N.C. 260, 1 Hayw. 260
- v. Brown’s Executors.
The indisposition of a witness, whose deposition has been talcen de bene esse and was now offered to be read, cannot be proved by the oath of the party producing it.
The Plaintiff brought his action against the Defendant, for a sum of money which he alleged he lent to Brown, in his lifetime, when going to the Convention and Assembly in 1789. The Defendant produced very strong circumstances to show, that the instrument purporting tobe signed by Brown, in acknowledgment of the receipt of this money, was forged. In order to rebut this testimony, the Plaintiff moved to read the deposition of a woman, who had lived at, the house of the Plaintiff about the time when this ; ¡oney was said to be lent, and who as it was •alleged, heard Brown’s acknowledgment of the debt— *261this deposition bad beer taken de bene esse, and General Davie f«r the Plaintiff, ofiR red to prove tiie presen! ¡o-disposition of the woman, bv the oath of the Plaintiff; an** -airl,, that; had always been the practice. But, per Haywood, Justice, who save the opinion of the court— I cansío? sav, because I/do not remember how the practice hath been, but surely upon principie, so material a fact as the indisposition of the witness, neon which depends the reading the deposition, and perhaps upon that, the fate ofthccau.se. should he proven by some othei person than the Plaintiff, who may be greatly in tere rested in having the deposition read, rather than the witness examined and cross examin' d in court. That the indisposition or death of the witness, is to he proven by others, is strongly implied in the words used in the rase o! Fry and Wood. 1 Mk. 445, and in 1 Mo. 282, 283, the falling sick of the vypness was proved by an indifferent person. In the present ease, there, was no mist in court who could prove the. indisposition of <he witness, and the deposition was rejected — though it was afterwards read by consent of parties.