Reade, J.
¶1
This case has been before us heretofore, 65 N. C. Rep. 214 . And one of the exceptions in the case then is precisely the sixth exception in the case before us now, to-wit: that in order to show that the defendant, Dumas, signed the bond, the plaintiff was allowed to show that Dumas and Martin, another obligor in the bond, were on friendly terms. This was excepted to by the defendant, and we sustained the exception then, and of course we sustain it now-
¶2
There is error.
¶3
Pee Cuexam.
Venire de novo.
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Case posture Posture CIVIL ACTION, tried before Cloud, J. , at the Spring Term, 1873, of the Superior Court of DAVIDSON county.
Action of covenant originally brought (under the old system) to the Superior Court of Rowan county, from whence it was removed to Davidson, and there tried upon the plea of non est factum as to the defendant, Dumas.
The bond declared was in the words following:
One day after date, we, Angus Martin, Isham Dumas and A. H. Sanders as principals, and Parson Harris and Thomas L. Colton as surieties [sureties], promise to pay Sarah Heileg fifteen hundred dollars in gold coin, for value received.
July 25th, 1859.
A. MARTIN, (SEAL.) A. H. SANDERS, (SEAL.) I. A. DUMAS, (SEAL.) T. L. COLTON, (SEAL.) P. HARRIS, (SEAL.)
Defendant, Dumas, was the only one of the parties who denied the execution of the bond, and the only issue submitted to the jury was as to his signature.
In behalf of the plaintiff, five witnesses were examined, who testified that they knew the handwriting of the defendant, Dumas, and the signature to the bond sued on, was in his own proper hand, and was genuine.
For the defendant, six witnesses swore that they were acquainted with the handwriting of Dumas, and that the signature to the bond, purporting to be his, was not his handwriting.
On the examination of Sanders, a witness and defendant,
it was proposed to prove the execution of the note by all the other signers, except Dumas. Objected to by Dumas, but received by the Court, whereupon he excepted.
Plaintiff further offered to prove by Sanders that only the name of Angus Martin was signed to said note when he, the witness, signed it. To this defendant, Dumas, again objected. The Court received the evidence, and he accepted.
On the cross examination of the witness, Patterson, who had testified, that in his opinion, the signature purporting to be Dumas' was written by some one, who at the time was nervous, and who was examined after the deposition of Dumas himself, denying the genuineness of the signature was read, it was proposed by the plaintiff to prove by him, from reputation, that Dumas was a free drinker. This evidence being objected to, and received by the Court, defendant, Dumas, excepted.
Plaintiff further proved by Patterson, who is a physician, that the sudden cessation from drinking spirits by a person accustomed to it, or a free drinker, would have the effect of making him nervous. The introduction of this evidence was objected to by defendant, but was received by the Court. Dumas again excepted.
By the defendant, Sanders, the plaintiff proved that the signers of the bond, at the time of its execution, other than the defendant, Dumas, were men of wealth. To the reception of this evidence by the Court, Dumas objected, and excepted.
By the same witness the plaintiff was allowed by the Court, after objection, to prove that Dumas and the defendant, Angus Martin, at the time of the execution of the bond, were friendly and on the best of terms. Defendant, Dumas, again excepted. This witness also stated, after objection noted, that the bond was brought to him to sign by the said Martin. Again excepted to.
The deposition of Dumas, taken de bene epe , was allowed
to be read, his inability to attend the trial being first established, and his counsel in commenting upon the same, called the attention of the jury to the signature to the deposition, and proposed for the jury to notice the difference. He was stopped by his Honor, when the counsel insisted that the exclusion of comparison of handwriting did not apply to any writing which had been introduced in evidence; at least did not apply to the right of jury to compare. His Honor being of a different opinion, decided the points against the defendant, and did not permit the jury to have the deposition. Dumas again excepted.
His Honor charged the jury that there was but one issue for them to try, and that was, whether Dumus [Dumas] signed the bond in question; that the evidence was conflicting, and they must determine the matter by weight of evidence, and in so doing they were not bound by the number of witnesses. If they saw fit they could believe three of plaintiff's witnesses against six of defendants. Having recapitulated the evidence, his Honor stated to the jury that if the weight of the evidence was on the side of the plaintiff, they should find for the plaintiff; if on the contrary, it was on the side of the defendant, they should find for the defendant. If, in the opinion of the jury, the evidence is equally balanced, the plaintiff fails to make out his case, and your verdict will be for defendant. To this charge the defendant, Dumas, excepted.
There was a verdict for the plaintiff; rule for a new trial; rule discharged. Judgment and appeal. Source: CourtListener
