Cox v. Wilson, 24 N.C. 234, 2 Ired. 234 (1842)

June 1842 · Supreme Court of North Carolina

24 N.C. 234, 2 Ired. 234

JOHN COX & WIFE & AL. vs. LEWIS WILSON.

|n a suit by an administrator one of the distributees of his intestate cannot be a witness for him; but such distributee is a competent witness for the defendant, and if introduced by him, may be cross-examined by the plaintiff on any matter pertinent to the issue.

This was an appeal from the judgment of the Superior Court of law of Pitt county, at Spring Term, 1842, his Honor Judge Settle presiding. The plaintifis brought a suit to recover certain property, a part of which had belonged, as was alleged, to one Buth Wilson, wjro was dead, and whose administrator was a party plaintiff. On the trial of the issue, the plaintiffs offered as a witness in their behalf Daniel Wilson, one of the distributees of the said Ruth Wilson. The competency of the witness was objected to by the defendant on the ground of interest, and the objection was sustained by the court.' The defendant then offered as a witness on his part James Wilson, another distribu-tee of the said Ruth. The plaintiffs objected to his introduction, but the objection was overruled by the court. The jury found a verdict for the defendant; and ail application of the plaintiffs for a new trial having been refused, and judgment rendered according to the vbrdict, the plaintiffs appealed.

No counsel appeared for the plaintiffs in this court.

Mor decaí and J. H. Bryan for the defendant.

Daniel, J.

John Cox, as administrator of Ruth Cox) sued to recover the slaves mentioned in the declaration; and he offered, as a witness, Daniel Cox, a brother, and one of the next of kin of his intestate. The defendant objected, and the court refused to admit him as a witness. This was right in the judge; for Daniel Wilson was directly interested that the plaintiff should recover in the action, so that the intestate’s estate might be increased, and his distributive share of that estate enlarged. Secondly; James Wilson another brother, and one of .the next of kin of the intestate Ruth Wilson, was offered as a witness by the defendant. The plaintiff objected, but the court admitted him as a witness. And' we think that this was also correct in the court. It is a general rule, that all witnesses interested in the event of a cause are to be excluded from giving evidence in favor of the party, to which their interest inclines them. But a witness is competent, when called on to testify by a party, against whom he is interested; or, in other words, a witness is competent when swearing against his own interest. Birt v Wood, 1 Esp. R. 20. 1 Johns. Reports 59. 3 Binney 336. 2 Mum. R. 49. The other party may then cross-examine the witness as to all matters pertinent to the issue on trial. Webster v Lee, 5 Mass. Rep. 334. We think that the judgment must be affirmed.

Per Curiam, Judgment affirmed.