William Johnson, Assignee, &c. v. Moses Knight and Richard Knight.
vFrom Ausou. J
A. gave his bond to B., and C. became the subscribing witness. B. assigned the bond to O., who sued A. The general issue being-pleaded, C. was nonsuited, because he had become interested in the c-isc by his own voluntary act, and could not give evidence to prove the execution of the bond. And the court would not re. ceive inferior evidence of its execution, such as the acknowledgment of A., that he had given the bond, and that he would pay it. The evidence of the subscribing" witness is dispensed with in case of marriage, or in favor of executors or administrators, from necessity, and in furtherance of justice.
The special case was this: Johnston, the Plaintiff, w as the subscribing witness to the bond on which this action of debt was brought; and on the trial, lie proved that the Defendants- had acknowledged the execution of the bond ; that one of them had promised to pay it, and the other had said he expected to have it to pay, and it would ruin him. The question submitted to this court was, whether this was a sufficient proof of the execution of the bond.
Locke, Judge,
delivered the opinion of the Court:
' It has already been decided by this Court, and between this plaintiff and the defendants, that it is improper to receive evidence of the hand writing of the subscribing witness, who was the Plaintiff, and had taken a voluntary assignment of the bond in question. The case is again submitted upon another question, to wit:— *238Whether the acknowledgment of the defendants, that, had given the bond and would pay it, be legal and pr0per evidence to be left to a jury to prove its execution. This point is expressly decided in the case of Abbott v. Plumb, (Doug. 216, 217 ;) and in the case of Cunliffe and Wife, and others, v. the Administrators of J. Houghton, (2 East, 187.) Lawrence, Justice, in delivering his opinion in this last case, decided in 1802, repeats this as a general principle of law : And although the evidence of the subscribing witness may be dispensed with, in cases of marriage, or in favour of executors or administrators, from necessity and in furtherance of justice, yet no case has been found where it has been dispensed with by reason of ihe subscribing witness becoming assignee. Let a nonsuit be entered.