Ray v. Mariner, 3 N.C. 385, 2 Hayw. 385 (1806)

April 1806 · North Carolina Superior Court

3 N.C. 385, 2 Hayw. 385

Fanny Ray vs. Mariner and wife.

THIS was an issue of devisavit velnon, made up under the direction of the court j and these points were determined by the court.

Mr. Browne stated, that a will dated the 12th of February, 1784, was proved in the county court; and that the paper now offered was dated on the 14th; and he wished to exhibit a copy of the one proved, to shew some sentences that were contained therein, and how different the dispositions were from those pretended to have been made two days after.

Taylor, Judge.

This will being proved cannot be given in evidence but by an-attested copy, not by a sworn copy; not because an attested copy cannot be dispensed with tvhere a sworn copy can be proved, but because in the case of a will, the probate is the only regular proof.

The defendants offered a witness, to whom it was objected by the plaintiff’s counsel, that he was interested; and that they would prove the interest; upon enquiry, however, the witness to prove the interest, was absent. They then proposed to examine him on the voir dire ¡ and it tras said by the plaintiffs they could not now examine upon the voir dire.

Taylor, Judge. The rule certainly is, that when witnesses sue examined to prove an interest in one who is offered as a witness, and fail in doing it, that the person offered cannot be examined in the voir dire; He cited 10 Mod. 193. But he said, no witness had been examined to prove the interest in the present case; and therefore that the person offered as a witness might be examined on the voir dire.