Buie v. Wooten, 52 N.C. 441, 7 Jones 441 (1860)

June 1860 · Supreme Court of North Carolina

52 N.C. 441, 7 Jones 441

ELIZABETH BUIE v. ROBERT WOOTEN.

The grantor -of a stave, by deed, can by means of a release from his grantee, be made competent to testify for him.

A surety to a prosecution bond is not discharged by a second bond, given as security upon a rule obtained at the instance of the defendant; and, therefore, ah obligor in the former bond is not a competent witness for the plaintiff.

AotioN of TROVER, tried before Shepherd, J., at the Special Term, January, 1860, of Cumberland Superior Court.

The plaintiff claimed title to a slave, the property sued for, by a bill of sale from her son, James D. Buie, reciting the payment of $730, as the price given. One Murphy, a brother-in-law of James D. Bnie, was the attesting witness. James D. Bue was largely indebted at the time of making this deed, and was then sued on some of his debts. The defendant, as a constable, seized the slave in question, under executions, and sold him as the property of Janies D. Buie.

The Court charged the jury fully upon the questions raised by the counsel, as to the fraud alleged in the transaction— explaining that the law looked with suspicion upon dealings among kindred, as these parties were, and required a degree of proof to show fairness that was not required among strangers.

In order to show that the sum mentioned in the bill of sale-had been paid, the plaintiff executed a release to James D„ Buie, and offered him as a witness. ITe was objected to by defendant, who insisted that the witness had an interest in supporting his own deed, and in showing that there was no fraud in the conveyance; but he was admitted, the Court remarking, that this went to his credit and not to his competency.

Defendant’s counsel excepted.

Jane Buie was offered by the plaintiff and objected to by the defendant. At the bringing of this suit, she was on the prosecution bond. Afterwards an affidavit was filed by the defendant and a rule obtained on the plaintiff “ to-give a prosecution bond on or before the next term, or the suit to be discontinued.” Under this rule a paper was filed as a bond, to which no exception was taken until the trial, and then it was objected to because not dated, and because the name of the surety does not appear in the body or condition of the bond. The surety taken in the second instance, was admitted to be-sufficient. The former bond was left on the files of the Court. Upon this showing, the Court ruled the witness competent,, and the defendant excepted..

Yerdict for the plaintiff; Judgment accordingly ; from which the defendant appealed.

E. Q. Haywood, for the plaintiff.

Neill McKay, for the defendant.

Battle, J.

The objection to the competency of the maker of the bill of sale, as a witness, was properly over-ruled. After the release, ■which the plaintiff executed to him, he had no interest which could disqualify him from testifying in support of the plaintiff’s title, and whatever objection there was to him, went to his credit and not to his competency.

The exception to the charge of the Judge, was likewise untenable. Ilis Honor explained the nature of the case fully and fairly, and we are unable to discover any thing in what he said, or omitted to say, of which the defendant has any right to complain.

In the admission as a witness of the plaintiff’s daughter, Jane Buie, we do not concur with his Honor. She was undoubtedly, at one time, one of the sureties to the bond for the prosecution of the suit, and as such, incompetent as a wit-mess; and nothing is shown which removed that incompetency. Had the plaintiff applied to the Court for leave to file another prosecution bond for the avowed purpose of having it substituted for the first, in order to restore the competency of the witness, the order of the Court, allowing-it to be done, would have sufficed upon the filing of the second bond, without an actual cancellation of the first; Otey v. Hoyt, 3 Jones’ Rep. 407. But in the present case, the application for another prosecution bond came from the defendant, and upon its being given, we are not aware of any principle of law by which it superseded the first. It was in fact, and in- legal effect, only an additional security, and unless the defendant chose to cancel the first bond, he was clearly entitled to both. "VYe believe that it is a common practice for a defendant, who doubts the sufficiency of the prosecution bond, to apply for, and obtain a rule upon the plaintiff, either to justify it, or to give an additional one. That was what the defendant intended to do in the present case, and it is what, in legal effect, he did do ; for the order, which he obtained, that the plaintiff should “ give a prosecution bond,” could not joroprio- vigore annul or cancel the one already given. The surety to the first bond still continued liable for the defendant’s costs, and as such, was incompetent to testify as a witness. It was, therefore, error in tire Court to permit her to testify in the cause; for which the judgment must be reversed, and a venire de novo awarded.

Per Curiam,

Judgment reversed.