Opinion
(June Term, 1860.)
1. The grantor of a slave, by deed, can by means of a release from his grantee be made competent to testify for him.
2. 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 an obligor in the former bond is not a competent witness for the plaintiff.
TROVER, tried before Shepherd, J., at Special Term, January, 1860, of CUMBERLAND.
E. G. Haywood for plaintiff.
Neill McKay for defendant.
The plaintiff claimed title to 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. Buie, was the attesting witness. James D. Buie 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 James D. Buie. (442)
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. He 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.
Verdict for the plaintiff; judgment accordingly, from which the defendant appealed.
The objection to the competency of the maker (443) of the bill of sale as a witness was properly overruled. After the release which the plaintiff executed to him, he had no interest which would 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. His Honor explained the nature of the case fully and fairly, and we are unable to discover anything 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 witness; 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, 48 N.C. 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. We 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, proprio vigore, annul or cancel the one already given. The surety to the first bond still continued liable for the defendant's costs, and (444) as such was incompetent to testify as a witness. It was, therefore, error in the court to permit her to testify in the cause.
PER CURIAM. Venire de novo.
Cited: Mason v. McCormick, 75 N.C. 264.