Perry v. Fleming, 5 N.C. 458, 2 Car. L. Rep. 458 (1816)

Jan. 1816 · Supreme Court of North Carolina

5 N.C. 458, 2 Car. L. Rep. 458

Perry v. Fleming.

Debt on bond to which non est factum was pleaded. The subscribing witness to the bond, had soon after its execution purchased the right, but without endorsement; but in order to restore his competency as a witness, signed and sealed a release of all his right to Perry, the plaintiff, who, not being at Court, the release was deposited in the clerk’s office for, his use; and the witness was allowed to prove the execution of the bond. The defendant offered evidence of fraud in procuring the bond, practised on him by the plaintiff and the witness, which the Judge who tried the cause would not receive; on which a verdict was entered up for the plaintiff. On a motion for a new trial, the case was referred to this Court, on the points above stated.

No argument was made in the case.

Taylor, C. J.

delivered the opinion of the Court:

We understand the principle of evidence to be well established, that the interest to disqualify a witness must exist at the time of trial; so that, if before then, the witness either removes the interest, or does all that can reasonably be expected from him to remove it, his competency is restored. The interest of the witness may arise from his being answerable to one of the parties, or that party to him, in the event of the cause being unsuccessful. A release from the party in the first case or a refusal by the witness, and a release from the witness in the latter case or a refusal by the party, alike restores the competency. This doctrine was recognized in the case of Fowler v. Welford, Douglas 139, where it is very sensibly observed by Mr. Justice Ashurst, "that every objection of interest proceeds on the presumption that it may bias the mind of the witness; but that presumption is taken away by proof of his having done all in his power to get rid of his interest.”

As the plaintiff was not present when the cause was about to be tried, and it was necessary for the witness to divest himself of the interest, there is no way in which he could more formally and effectually do it than by depositing the release in the clerk's office for the use of the plaintiff: and such conduct does, in our opinion, bring this case within the reason and spirit of the rule, and renders the witness competent.

But on the other point in this cause, we are of opinion that the evidence offered by the defendant of fraud in obtaining the bond, was improperly excluded. Such evidence, if true, goes in support of the plea of non est factum, and tends to show that the bond never had a legal existence. Lester v. Zachary, Jan. Term, 1814. What particular circumstances of fraud and imposition will render a bond void in law, it would be impossible to state a priori. They are infinitely diversified, and must of necesssity be entrusted to the sound and legal discretion of the Judge who tries the cause. For this reason alone, therefore, we all think there ought to be a new trial.