Opinion
December Term, 1856.
Where a subscribing witness to a bond, having purchased the interest therein without endorsement, sold the same without endorsement, on a credit, with the avowed purpose of making himself competent to testify, and states that it was, at the time of the trade, and still is, his purpose, not to make his vendee pay for the bond, unless he can recover it, but says there was not any understanding to that effect between them in the trade; Held that he is legally admissible.
ACTION of DEBT, tried before his Honor, Judge SAUNDERS, at the Fall Term, 1856, of Pitt Superior Court.
The action was brought on a bond, originally for $100, payable to one Jason Purvis, dated in 1842, on which there was a credit of $53,90, dated 9th of January, 1843.
William W. Sherrod, the subscribing witness, proved the execution of the bond by the testator of the defendant, and that in the latter part of the year 1843, (the credit being then endorsed,) he bought it from Purvis, the payee, but took no assignment of it in writing. Before making the purchase, he informed defendant's testator (who had been his guardian) of his intention to do so, and was a advised by him to do it. Afterwards, in 1847, he informed the testator, that he had purchased the bond, though he did not show it to him, when he expressed himself as being gratified that he had got it. Defendant's testator died in 1853, and more than ten years had elapsed from the date of the credit, on the note, to the death of the testator. After this latter event, the witness says, he was informed, for the first time, that it would be presumed, in law, to be paid, from the length of time, and he sold it to John S. Coleman, and took his note in payment for it. Witness did not inform Coleman of defendant's refusal to pay, or that there was any difficulty about collecting the bond. At the time of this trade with Coleman, it was not his purpose to make him pay the note which he received from him, unless he should succeed in collecting the bond in question, and that his object in selling to Coleman, was to enable himself to testify in the case; but there was no understanding between him and Coleman that he was not to enforce their bargain, or that witness was to be liable to him in any way, and that he had no interest in the event of the suit. Witness said, no part of the bond had been paid to him, and defendant's testator was man of large property all the time he had it, and at his death.
The evidence of the witness was objected to, but admitted by the Court. Defendant excepted.
Verdict for the plaintiff. Judgment and appeal.
Rodman, for plaintiff.
Batchelor, for defendant.
The admission made by the defendant's testator to the subscribing witness, that the bond had not then been fully paid, was sufficient to rebut the presumption arising from the lapse of time, and the only question is, was he, under the circumstances, competent to testify? We certainly think that he came before the Court with a cloud of suspicion resting upon him; but after much reflection, we are satisfied that the objection to him went to his credibility, and not to his competency. It is conceded that, at the time of the trial, he had no legal interest in the negotiable instrument sued upon. He had indeed theretofore purchased it, but had taken it without endorsement, and thus had an equitable one only in it. He, afterwards, for the very purpose of enabling himself to become a witness, assigned his interest to a third person and took the note of that person in payment of the price. After that time, he had neither a legal nor equitable interest in the bond, and though he had mentally resolved not to enforce the payment of the note taken from his vendee, unless the latter should recover the bond, that created a moral duty only; one which could not be enforced either at Law or in Equity. This, it is now well settled, did not render him incompetent. 1 Greenlf. Ev. 388, 430; 2 Phil. Ev. 99, note 92. The case of Perry v. Fleming, 2 Car. Law Repos. 458, was, in some respects, like the present. It was an action of debt upon a bond, to which non est factum was pleaded. The subscribing witness to the bond had, soon after its execution, purchased it, but without endorsement; but in order to restore his competency as a witness, he signed and sealed a release of all his right to Perry, the plaintiff, and deposited it in the clerk's office for his use; he, the plaintiff, not being at Court. Under these circumstances, the witness was allowed to prove the execution of the bond; which was afterwards approved by the unanimous opinion of the Supreme Court. The case of Billingsly v. Knight, N.C. Term Rep. 103, shows too, that if the subscribing witness to a negotiable bond, becomes the assignee of it by endorsement, he may restore his competency as a witness, by endorsing it to another person without recourse and taking a release from that person.
These cases clearly establish the principle, that a subscribing witness to a negotiable instrument, who acquires, by his own act, an interest therein, either legal or equitable, may divest himself of that interest, and thus restore his competency to testify in regard to it. Having neither a legal nor an equitable interest in the event of the cause, the law will not reject him as a witness, because he may feel himself under an obligation of morality or honor, not to suffer the party for whom he is called, to lose by the result of the suit.
PER CURIAM. The judgment is affirmed.