#### MARIA KEITH v. KENDRICK GOODWIN.

Where a witness was ruled by the Court to be incompetent, and such ruling was not appealed from, or reversed, it was Held that his fees could not be taxed against the adverse party — whether the ruling out of the witness was erroneous or not. ,

It ■seems that the statute pardon, which is an incident to the benefit of clergy, does not take effect until the party is burned in the hand and delivered.

But if the record, by default of the Court, omit to show such execution of the sentence, the party should be permitted to show it by a witness.

Teespass for assault and batteey, tried before Heath, J., at the last Spring Term of Uew-TIanover Superior Court.

The plaintiff offered one William H. Keith as a witness, whose evidence was material, but he was objected to by the defendant as being incompetent, because he had been convicted of manslaughter in Wake Superior Court, and the record of the proceedings m that court was produced. The plaintiff replied, that the record showed that the sentence of the Court had been executed, and that restored his competency. His Honor, on inspection of the record, adjudged that it did not appear from that record, that the judgment of the Court had been executed, and, therefore, that he was not restored.

Tire plaintiff then offered to show, by a witness in Court, *399that the sentence had been executed. The Court declined receiving this proof, and the witness, Keith, was excluded.

The plaintiff had a verdict. But on a motion, that the fees of William N. Keith, as a witness, should not he allowed against the defendant, hut should be taxed against the plaintiff, his Honor held that, being adjudged on the trial to he incompetent, his fees could not be taxed against the defendant. From which judgment the plaintiff appealed.

Person, for the plaintiff.

H. G. Haywood, for the defendant.

PeaRsoh, C. J.

It would seem that the statute pardon, which is an incident to “ the benefit of clergy,” does not take effect until the party is burned in the hand and delivered out of prison, and in Burridge’s case, 3 Peere Williams, 489, it is held “ where by the delay or doubt of the Court, a prisoner, convicted of manslaughter, has no opportunity of demanding his clergy., or if he has demanded it, and the Court should make no record of it, this, on its being pleaded and shovm specially, shall not turn to the prejudice of the prisoner, because it is the default of the Court.” According t'o this authority, it being the default of the Court, that the fact, that the sentence had been executed, was not set out in the record, the plaintiff ought to have been allowed to prove it by a witness.

But we are not at liberty to decide the point by reason of the manner in which it comes up. The appeal is taken from the order in respect to the taxation of the witness, William N. Keith. There is no error in that, ¡provided his Honor was right in ruling, on the trial, that the witness was incompetent. That ruling was not appealed from — stands unreversed, and, as between the parties, must be taken as conclusive. In making the order, the presiding Judge did but carry out his opinion in respect to the competency of the witness, and that opinion, a party is not at liberty to impeach in a collateral way. There is no error.

PbR Cxteiam, Judgment affirmed.