Cumberland County NcArchives Court.....John Carver, M. C. Buie V. 1875 ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/nc/ncfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Connie Ardrey n/a October 31, 2011, 1:30 pm Source: N C Reports Written: 1875 M. C. Buie v. John Carver It is error to permit the testimony of a witness, as to what a deceased witness swore on a former trial, to go to the jury, unless the witness can state the whole of the evidence given in at the time by such deceased witness. The reception of such fragmentary testimony entitles the party excepting to it to a new trial. Civil Action, in the nature of Ejectment, tried at the Spring Term, 1875, of Cumberland Superior Court, before his Honor Judge Buxton. The only point raised and decided in this Court, was a question of the admissibility of certain evidence. A statement of the facts and the evidence bearing on other points in the case, is, at this state deemed necessary. During the trial, the plaintiff introduced Wm. B. Baker, to prove what one Daniel Cornbow has sworn to on a former trial. Baker, upon his preliminary examination to test his competency, stated: "That he was present at the previous trial was a witness himself and the son-in-law of the plaintiff. That he paid attention to the examination of Daniel Cornblow, but was hard of hearing, and did not hear all that he said; but he did hear and did remember what Cornbow testified as to what land he had owned, and what he had sold to John Carver. Upon this statement the defendant objected to the competency of Baker. His Honor overruled the objection and allowed him to be examined. Defendant excepted. There was much other evidence, written and oral, introduced, but not being prertinent to the decision of this Court, a statement of the same is omitted. The verdict of the jury was in favor of the plaintiff. Judgment and appeal by the defendant. W. McL. McKay & Guthrie, for appellant Ray, contra NC Supreme Court Justice Pearson, C. J. - ...So it was bad management on the part of the plaintiff to press hi deaf witness upon the Court and jury, unless he had some special reason for it. However this may be, there is no telling the extent to which the jury were influenced by this incompetent evidence, and the defendant is entitled to a venire do novo. (see court case for full judge findings) Error Per Curiam Venire de novo Additional Comments: In the NC Supreme Court June Term 1875 File at: http://files.usgwarchives.net/nc/cumberland/court/johncarv2958wl.txt This file has been created by a form at http://www.poppet.org/ncfiles/ File size: 2.8 Kb