Johnston v. Knight, 5 N.C. 293, 1 Mur. 293 (1809)

July 1809 · Supreme Court of North Carolina

5 N.C. 293, 1 Mur. 293

Johnston, assignee, &c. v. Knight.

From Richmond.

A. and B. gave their joint bond to C, and D. became the subscribing witness. C. assigned the bond to D, who brought suit on the bond, against A. He pleaded the general issue, and upon the trial, the hand-writing of D, and also of A. was proved. It was also proved, that on the day on which the bond bore date*A. had purchasfed goods of C, to the precise amount of the bond. This is not legal proof of the execution of the bond; and the Jury having found a verdict for the Plaintiff, the verdict was set aside, and a nonsuit entered, upon the ground that the testimony was improperly received; iiand also upon the ground, that the production of the subscribing witness to a bond is never dispensed with, except from necessity'; as where he is dead, has removed, or become interested by operation of Law. Here the subscribing witness has become the assignee of the bond, and the Plaintiff in the cause.

Moses Knight and Richard Knight executed their joint bond to John Hardwick, executor of the last will of Richard Edgeworth, deceased, and William Johnston, the Plaintiff in this cause, became the subscribing witness to the said bond. Hardwick afterwards assigned the bond to Johnston, and Johnston brought an action of debt against Moses Knight, one of the obligors. The Defendant pleaded the general issue. Upon the trial of the cause, the hand-writing of Johnston, and also of Mo-S6s Knight, was proved. It also appeared in evidence, £rora the account of sales of Richard Edgeworth’s estate, j,etun)e(j j„t0 the proper office by his executor, John Jiardwick, that Moses Knight purchased at the sale of Richard Edgeworth’s estate, goods to the precise amount pf the bond, and that the sale was made on the day on which the bond purported to be executed. The assignment of the bond to Johnston was also proved. The Jury found a verdict for the Plaintiff, subject to the opinion of the Court upon the question, £< Whether the execution of the bond was legally proved ?”

HENBEitsoN, Judge,

delivered the opinion of the Court.

It is one of the primary rules of evidence, that the best which the nature of the case admits of, and which is in the party’s power or possession, shall be produced. The offer of lesser evidence whilst the greater is in the power or possession of the person peering it, affords a presumption that the greater evidence, if produced, would operate against him. The testimony of the subscribing witness to a written contract, is the best evidence of its execution, of the terms, conditions and consideration, . on which it was made. He is selected by the parties to bear evidence of their contract ir case a dispute should arise. His production has ■ been dispensed with in cases of necessity only; as where he is dead, removed beyond the process of the Court, become infamous, or interested by operation of Law. The necessity in the present case arises entirely from the act of the person, (or at least with his concurrence) who offers the lesser evidence, which certainly cannot and should not form an exception to the general rule. We are therefore of opinion, that the evidence received upon the trial was improperly re-, ceived, that the execution of the bond was not legally proved, that the verdict should be set aside, and a non-suit entered.