Opinion
June Term, 1823.
Where an appeal has been taken from the county to the Superior Court the securities to the appeal may be released to become witnesses in the case, and others substituted.
THIS was an appeal from the county to the Superior Court of MOORE, in an action of debt, and on the trial in the Superior Court the plaintiff moved to be permitted to give a new appeal bond and other securities, in order to enable him to call on one of the securities to the original appeal bond as a witness. The court refused to grant the motion. The plaintiff then moved that he might be permitted to deposit in the clerk's office money sufficient to satisfy the costs to that time, for the purpose of releasing the security in the appeal bond and obtaining the benefit of his testimony. This was also refused, and the case now stands before this Court on a motion for a new trial.
I believe, in a great many instances, securities have (337) been released, and others substituted in their places, in order that they might thereby become competent to give evidence in the cause. I can see no inconvenience in the case at all comparable to that which might be experienced from a contrary rule or practice. Much injury might accrue to a person who had, unguardedly or unfortunately, procured one to become his security whom he might afterwards discover to be an important witness for him.
I clearly think a new trial should be granted.
And of this opinion was the rest of the Court.
PER CURIAM. New trial.
Cited: Brittain v. Howell, 19 N.C. 108; Garmon v. Barringer, ib., 503; Sawyer v. Dozier, 27 N.C. 100; Otey v. Hoyt, N.C. 411.