{
  "id": 2088600,
  "name": "ELIZABETH BUIE v. ROBERT WOOTEN",
  "name_abbreviation": "Buie v. Wooten",
  "decision_date": "1860-06",
  "docket_number": "",
  "first_page": "441",
  "last_page": "444",
  "citations": [
    {
      "type": "nominative",
      "cite": "7 Jones 441"
    },
    {
      "type": "official",
      "cite": "52 N.C. 441"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [],
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  "last_updated": "2023-07-14T15:16:19.129964+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "ELIZABETH BUIE v. ROBERT WOOTEN."
    ],
    "opinions": [
      {
        "text": "Battle, J.\nThe objection to the competency of the maker of the bill of sale, as a witness, was properly over-ruled. After the release, \u25a0which the plaintiff executed to him, he had no interest which could disqualify him from testifying in support of the plaintiff\u2019s title, and whatever objection there was to him, went to his credit and not to his competency.\nThe exception to the charge of the Judge, was likewise untenable. Ilis Honor explained the nature of the case fully and fairly, and we are unable to discover any thing in what he said, or omitted to say, of which the defendant has any right to complain.\nIn the admission as a witness of the plaintiff\u2019s daughter, Jane Buie, we do not concur with his Honor. She was undoubtedly, at one time, one of the sureties to the bond for the prosecution of the suit, and as such, incompetent as a wit-mess; and nothing is shown which removed that incompetency. Had the plaintiff applied to the Court for leave to file another prosecution bond for the avowed purpose of having it substituted for the first, in order to restore the competency of the witness, the order of the Court, allowing-it to be done, would have sufficed upon the filing of the second bond, without an actual cancellation of the first; Otey v. Hoyt, 3 Jones\u2019 Rep. 407. But in the present case, the application for another prosecution bond came from the defendant, and upon its being given, we are not aware of any principle of law by which it superseded the first. It was in fact, and in- legal effect, only an additional security, and unless the defendant chose to cancel the first bond, he was clearly entitled to both. \"VYe believe that it is a common practice for a defendant, who doubts the sufficiency of the prosecution bond, to apply for, and obtain a rule upon the plaintiff, either to justify it, or to give an additional one. That was what the defendant intended to do in the present case, and it is what, in legal effect, he did do ; for the order, which he obtained, that the plaintiff should \u201c give a prosecution bond,\u201d could not joroprio- vigore annul or cancel the one already given. The surety to the first bond still continued liable for the defendant\u2019s costs, and as such, was incompetent to testify as a witness. It was, therefore, error in tire Court to permit her to testify in the cause; for which the judgment must be reversed, and a venire de novo awarded.\nPer Curiam,\nJudgment reversed.",
        "type": "majority",
        "author": "Battle, J. Per Curiam,"
      }
    ],
    "attorneys": [
      "E. Q. Haywood, for the plaintiff.",
      "Neill McKay, for the defendant."
    ],
    "corrections": "",
    "head_matter": "ELIZABETH BUIE v. ROBERT WOOTEN.\nThe grantor -of a stave, by deed, can by means of a release from his grantee, be made competent to testify for him.\nA surety to a prosecution bond is not discharged by a second bond, given as security upon a rule obtained at the instance of the defendant; and, therefore, ah obligor in the former bond is not a competent witness for the plaintiff.\nAotioN of TROVER, tried before Shepherd, J., at the Special Term, January, 1860, of Cumberland Superior Court.\nThe plaintiff claimed title to a slave, the property sued for, by a bill of sale from her son, James D. Buie, reciting the payment of $730, as the price given. One Murphy, a brother-in-law of James D. Bnie, was the attesting witness. James D. Bue was largely indebted at the time of making this deed, and was then sued on some of his debts. The defendant, as a constable, seized the slave in question, under executions, and sold him as the property of Janies D. Buie.\nThe Court charged the jury fully upon the questions raised by the counsel, as to the fraud alleged in the transaction\u2014 explaining that the law looked with suspicion upon dealings among kindred, as these parties were, and required a degree of proof to show fairness that was not required among strangers.\nIn order to show that the sum mentioned in the bill of sale-had been paid, the plaintiff executed a release to James D\u201e Buie, and offered him as a witness. ITe was objected to by defendant, who insisted that the witness had an interest in supporting his own deed, and in showing that there was no fraud in the conveyance; but he was admitted, the Court remarking, that this went to his credit and not to his competency.\nDefendant\u2019s counsel excepted.\nJane Buie was offered by the plaintiff and objected to by the defendant. At the bringing of this suit, she was on the prosecution bond. Afterwards an affidavit was filed by the defendant and a rule obtained on the plaintiff \u201c to-give a prosecution bond on or before the next term, or the suit to be discontinued.\u201d Under this rule a paper was filed as a bond, to which no exception was taken until the trial, and then it was objected to because not dated, and because the name of the surety does not appear in the body or condition of the bond. The surety taken in the second instance, was admitted to be-sufficient. The former bond was left on the files of the Court. Upon this showing, the Court ruled the witness competent,, and the defendant excepted..\nYerdict for the plaintiff; Judgment accordingly ; from which the defendant appealed.\nE. Q. Haywood, for the plaintiff.\nNeill McKay, for the defendant."
  },
  "file_name": "0441-01",
  "first_page_order": 449,
  "last_page_order": 452
}