Blackwelder v. Fisher, 20 N.C. 204, 3 Dev. & Bat. 204 (1839)

June 1839 · Supreme Court of North Carolina

20 N.C. 204, 3 Dev. & Bat. 204

JOHN BLACKWELDER vs. JOHN FISHER.

If the subscribing witness toaninstrumentbecom.es interested and a party to a cause, even though be does so voluntarily, he cannot be examined as a witness. In such case the adverse party, if he wish to prove the instrument, may prove the handwriting of the subscribing witness; and if that cannot be done, proof of the handwriting of the person who executed the instrument, is admissible. If proof of neither can be obtained by disinterested witnesses, the party must resort to his bill of discovery in equity.

This was an action of trover for a horse. Plea — not guilty. Upon the trial at Rowan, on the last circuit, before his honor Judge Nash, the plaintiff set up title to the horse on the grounds: First, that his father was owner of the dam, and agreed with him, that if he would pay the price of putting the mare to the horse, he should have the foal, and that he had done so: Secondly, that after the mare had foaled, his father made a parol gift of the colt to him. The .... .1 G. .. , , , ant, admitting the conversion of the property, denied the plaintiff’s title, stating that the father of the plaintiff was in insolvent circumstances at the time of the gift, and had subsequently made an assignment of all his property, by deed, to the defendant and others, to satisfy his debts, and that the horse in question wás included in the deed of assignment. The plaintiff was the subscribing witness to the deed, and on the trial the defendant called on him as a witness. The evidence was objected to, but admitted by the Court. The defendant had a verdict and judgment, and the plaintiff appealed.

June 1839

Boyden for the plaintiff.

D. F. Caldiuell and Barringer for the defendant.

Daniel, Judge,

after stating the case as above, proceeded as follows: It is a general rule of law, that a party to a suit cannot be a witness in it. This rule is not founded merely on the consideration of his interest.. The rule is partly, at least, founded on a principle of policy for the prevention of perjury, 2 Stack. Ev. 580. If the attesting witness to an instrument has become interested and a party to a cause, even though he disqualify himself voluntarily, still, if his adversary wishes to prove the instrument, the handwriting of the subscribing witness may be proved; and if that cannot be done, proof of the handwriting of the person who executed the instrument is admissible. If proof of neither can be obtained by disinterested witnesses, the party must resort to his bill of discovery in equity: The answer then is evidence as an admission, 1 Stark. Ev. 5 (American edition) 325, 326; and the cases there referred to. There must be a new trial.

Per Curiam. Judgment reversed.