¶1 seemed to be of this opinion, and he ordered the judgment to be stayed, until this question could be argued before more judges; and it was adjourned.
¶2 Cited: Overman v. Coble , 35 N.C. 4 .
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Case posture Posture DEBT upon bond, and non est factum pleaded. The attesting witness was one Cordall Norfleet, and there was an endorsement on the bond transferring it and its contents to him. The bond itself bore date prior to the time when bonds were first rendered negotiable in this State. It was argued for the plaintiff, and insisted upon, that the handwriting of Norfleet, the attesting witness, might be proven; and this was compared to the case in Stra., 34, where the subscribing witness having (140) become the administrator, his handwriting was admitted to be proven. It was also compared to the cases where the witness becomes blind, or is convicted of perjury or forgery, or is made a legatee, or becomes heir. And the evidence in the present case offered by the plaintiff was admitted, Judge MACAY being on the bench, and a verdict obtained; whereupon, General Davie moved that the verdict might be set aside, the evidence upon which it was grounded being improper; and he argued that in the case of the executor, administrator, or legatee, the law gave them that character, or placed them in that situation, which disabled them to give testimony; at least, they did not acquire such characters or offices by their own independent voluntary act, and in such cases there was no room for presuming any combination between the obligee and the witness. But these cases are not like the present. If the evidence admitted in this case should be allowable, a wide door would be opened for fraud, and it would immediately be put in practice. The forger of a bond would have nothing else to do but to endorse to the subscribing witness, and that witness to sue and effect the recovery upon proof of his own handwriting. Should it be a case of usury or of gaming existing in the knowledge of the witness only, as frequently happens, an endorsement like the present, and the admission of such testimony, would effectually exclude the truth of the transaction and make the bond valid, though in reality it was void by the rules of law. Should this decision be established as law it will immediately become the common practice to assign all such bonds to the witness, for the purpose of procuring a false validity to them. This case, therefore, is not to be assimilated to the cases cited. In those, no mischief results from the admission of proof of the witness's handwriting. It is not to be presumed that the witness will undergo a conviction of forgery or perjury, or that a testator, intestate, or ancestor will procure the person that is to be his executor, administrator, or heir to witness a forged instrument, or one
invalid in other respects, to the end that after the death of himself a recovery may be affected by proof of their handwriting. There are but few men have attained to such a degree of baseness as to contrive frauds to be executed after their deaths. The uncertainty itself of the time of death, which is generally viewed as at a distance, is a sufficient guard against any such attempt. But in this case, and in all cases like it, the mischief of such evidence is greatly to be apprehended. Source: CourtListener
