Billingsly v. Knight, 4 N.C. 103, 1 Taylor 103 (1817)

Jan. 1817 · Supreme Court of North Carolina
4 N.C. 103, 1 Taylor 103
BILLINGSLY Assignee &c. against KNIGHT

BILLINGSLY Assignee &c. against KNIGHT.

A subscrilw ^noTe,' wllora J ⅛ terwarus endorsed, and aór^s'itVTtli-recourse, and is also release-t bv the competent* * witness to prove its exs-cuUo!1_

THIS Action was tried before Hall, J. at Anson Superior^Court, and was brought on a bond, payable to 'John Hardwick, to which William Johnson is the only ^ J subscribms; witness. On the 10th day of October 17^9, Hardwick assigned the bond in the usual form to Johnson-, the witness, and on the 6th day of February . . . . - Johnson assigned it to the Plaintiff, in the following words, to wit, “ I hereby assign over the within obligation to Hezekiah Billingsly, without any recourse back on me.” rr-. . . . 16 prove the execution ot the bond and the assignment by Hardwick, Johnson was offered as a witness, and a release from Billingslij to him was read; his testimony was opposed by the Defendant, but admitted by the Court, ánd a verdict was given for the Plaintiff. The Defendant obtained a rule to shew cause why a. New Trial should Aot be granted, ón the ground that Johnson was an incompetent witness. On argument, this rule was discharged, and e Defendant appealed to this Court, tb

M'-Millan, for the Defendant.

Though Johnson maybe discharged by the special nature of the endorsement, yet he is an incompetent witness in this case, having once put his name to the note.* And though this case has been since overruled, yet it has been adopted and enforced in many of the Courts of the United States.†

Daniel, J.

It appears from the case, that Johnson, the witness, had made such a special endorsement to the Plaintiff, as to put it out of the power of the Plaintiff ever *104to look to him for any part of the money, under any cir° cumstances whatever j unless it should turn out to be a gross fraud and imposition, which I cannot well see could happen. But in the present case, Johnson is released, and he is surely a competent -witness, and was properly admitted to give testimony.

The circumstance of his name appearing on the bond, and that bond being negotiable, can make no sort of difference. I think, ever since the case of Fordaine v. Lasbrook, * the law has been settled upon this point.

Seawell, J.

I know of but two rules by which the competency of witnesses can be tested, the one interest, and the other infamy. The rule laid down in Walton v. Shelley, has long since been abolished and the competency restored to its former standard. Johnson, the witness, could only be liable in virtue of his endorsement, and being released from that, stood as indifferent as any other individual. He was properly admitted, and I am for discharging theTule.

Taylor, C. J.

I can scarcely perceive any question to be decided in this case ; for Johnson is unquestionably disinterested in the event of the suit; his endorsement never made him liable, and if it d:d, the release discharged him. Supposing that the case of Walton v. Shelley had not been overruled, it could be no authority here j for it only decided, that a person should not impeach an instrument to which he had put his name : Johnson is hot called upon to impeach this note, but to support it.

Judgment affirmed.