Scott v. Brown, 50 N.C. 406, 5 Jones 406 (1858)

June 1858 · Supreme Court of North Carolina

50 N.C. 406, 5 Jones 406

GEORGE W. SCOTT v. LETITIA BROWN, Administratrix.

Because the Judge, on an examination before him, has adjudged that a party, offered as a witness, was a joint owner of the property sued for, and therefore incompetent as a witness, it is no ground for him to non-suit the plaintiff, and the cause should proceed before the jury as if no such fact had been adduced to the Court.

AotioN for a deceit and false waReakty, tried before Bailey, J., at the last Spring Term of Cabarrus Superior Court.

The plaintiff offered to read the deposition of Cyrus Scott to prove the contract of sale. The defendant objected, and introduced a witness to the Court who swore that he heard George W. Scott and Cyrus Scott both say they were going to purchase the jackass in question for their joint benefit, each to own one half; that after the purchase was made, he heard both the plaintiffs and Cyrus Scott say they had purchased the animal jointly, and that they each owned an interest of one half in him. Upon considering the testimony, his Honor rejected the deposition.

The cause then was examined before the jury, and evidence was adduced by the plaintiff tending to show the plaintiff was the sole owner of the property in question, and that the contract was made with him alone.

The defendant’s counsel introduced evidence tending to show the contrary, and he insisted that all the evidence was for the Court and not for the jury, and that the Court ought to non-suit the plaintiff.

The Court declined to non-suit the plaintiff, but left the questions of the ownership of the animal, and the other facts adduced on the trial, to the consideration of the jury. Defendant excepted.

Yerdict for the plaintiff. Judgment. Appeal by the defendant.

Jones and H. Barringer, for the plaintiff.

Boyden, for the defendant.

Battle, J.

"We concur in the opinion of his Honor that the testimony offered by the plaintiff, tending to show that he was the solo purchaser of the jackass in question, as well as that introduced by the defendant to rebut it, were for the jury only, and it would have been error if the Court had undertaken to decide it. The testimony which the defendant had offered, in the first place, for the purpose of showing the interest of Cyrus Scott, and thereby to exclude his deposition, was properly addressed to the Court, because its sole object was to show the incompetency of the witness, which of course could only be determined by the Court. The Court thought that there was sufficient prima facie evidence that Cyrus Scott was a joint purchaser of the jack, and therefore properly excluded his deposition. But the fact, whether the plaintiff was the sole, or only a joint purchaser of the animal, was a material fee in the cause, having nothing to do with the competency of the witnesses, other than Cyrus Scott, and was properly submitted to, and passed upon by, the jury. The charge of his Honor upon it was right, and the judgment must be affirmed.

Per Curiam, Judgment affirmed.