Peace v. . Jenkins , 32 N.C. 355 ( 1849 )

The question is not as to the weight, but as to the competency of the evidence, of which the defendant complains. On his part it was alleged that the transaction between the plaintiff and her father, John T. Peace, was fraudulent. The plaintiff's deed being attacked for fraud, it was incumbent on her part to show that the consideration was a bona fide one. A part of this consideration consisted of a debt, as she alleged, due from her father to Josiah Peace, his brother, and which she had paid. The bill of sale under which she claimed the negro is dated 4 May, 1844. Declarations of John T. Peace, made near six months before, were proved by the defendant to show that at that time he owed his brother Josiah nothing. To contradict the force of this testimony the plaintiff was permitted to show that, some time previous to the declarations proved by the defendant, John T. Peace had declared (357) that he was indebted to Josiah Peace. The testimony was, we think, competent. John T. Peace was dead, and his declarations were relevant to the very matter in dispute, to wit, his indebtedness to Josiah Peace, and upon a question of fraud and against his interest. Its aptness to prove that fact of indebtedness was to be considered of by the jury in deciding on its weight, from the time and circumstances under which it was made. Peck v. Gilmer, 20 N.C. 391;Higham v. Ridgeway, 19 East, 109. We think his Honor committed no error in admitting the testimony. It is true, it did not of itself prove any such debt existing at the time the plaintiff's bill of sale was made, but it was such a circumstance as the jury might take into consideration as evidence, either in chief or in reply. The declarations were made by a man upon the subject in controversy, against his interest, and when he could have no conceivable interest to declare that which was not true. Suppose he had at that time given his duebill for the amount so alleged to be due to Josiah Peace: that, certainly, would have been evidence.

PER CURIAM. Judgment affirmed.

Cited: McCanless v. Reynolds, 67 N.C. 269; Shaffer v. Gaynor,117 N.C. 24; Smith v. Moore, 142 N.C. 290, 4.

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