Purvis Ex Rel. Coleman v. Albritton

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 estfactum 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.