The case is somewhat like that in 1 Strange, 34, (329) where the obligor left the subscribing witness his executor; but not at all like the case where the witness dies, or cannot be found, or becomes blind, non compos, or infamous; for these disqualifications are not brought about by the agency of the obligee. Here it is; and by such means a forged bond may be easily established against any one, without swearing to a falsity.
The subscribing witness writes the name of the obligor, and the payee or obligee assigns to him; and then some person who is acquainted with the handwriting of the subscribing witness swears to it. Proof of the handwriting of the obligor is liable to a similar rejection; for if the proof of his handwriting will do, then by a like assignment to the witness, something like that he knew for the advantage of the obligor would be kept back.
Some days afterwards the cause was again considered on a motion for a new trial.
Plaintiff's counsel said he would not insist upon the first point, that the witness could be sworn, or his handwriting proved; but as to the second, namely, that the handwriting of the obligor might be proved, he could not abandon that without the utmost reluctance. The reason given for rejecting such proof was that as the witness could not be sworn, the obligor might lose something within the knowledge of the witness, very material for his defense. Who is it that causes the rejection of the witness? The obligor. Shall he be permitted to say the witness shall not be sworn, and then to say, if he were allowed to be sworn he would say something in my favor, and as he cannot be sworn, his handwriting shall not be proved? Again, proof of the handwriting of the obligor, in cases where there is no subscribing witness, establishes the execution of the bond by the defendant; and the obligee's possession of it is prima facie evidence of the delivery. What, then, could the subscribing witness prove if he were sworn? He could not say, it was delivered as an escrow to the obligee, for there cannot be delivery as an escrow to the obligee, nor can he prove a condition, for you cannot aver, by parol, a condition against the bond. If it were delivered as an escrow to a third person, there is no need of the witness, for the third person can prove it; nor can the witness prove usury, gaming, or the like, for by his attestation he has undertaken to support the instrument. There never was a witness called upon to subscribe for the purpose of destroying the instrument by his evidence. *Page 280 E contra, Brown argued that the subscribing witness would be allowed to prove, delivered as an escrow, usury and gaming, which evidence was excluded by his rejection.
The Court took time to consider, and after several days, the judge said his opinion was not altered by the arguments he had heard; (330) that he adhered to the rejection of the proof of the handwriting of the obligor, as well as proof of the handwriting of the witness.
NOTE. — See Ellis v. Hetfield, 1 N.C. 41, and the references in the note thereto.
Cited: Saunders v. Ferrill, 23 N.C. 102; Overman v. Coble, 35 N.C. 4.