Moore County NcArchives Court.....John Tyson, Kinchen Kitchen V. 1819
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 January 31, 2009, 6:39 pm

Source: Nc Reports
Written: 1819

Kinchen Kitchen v. John Tyson

From Moore

May Term 1819

Assumpsit for goods sold and delivered. Defendant pleaded a set-off, to 
support which, he introduced his book, containing an account against the 
Plaintiff, and was sworn under the book debt act (1756, ch. 4,) as a witness 
to prove the items in the account. The Plaintiff then offered witnesses to 
prove that the Defendant was a man not worthy of belief when upon oath. Such 
witnesses admissible; for,

The act of 1756, ch. 4, only removes the incompetency of the party, who is 
examined as a witness to prove his account, it leaves his credibility open to 
be enquired into by a Jury.

The act uses the words "to make out by his own oath or affirmation." and "to 
prove," as synonymous. To prove a fact, signifies not merely to swear to it, 
but to establish its truth by a credible witness.

Where a statute uses a word, the meaning of which is well ascertained at 
common law, the word shall be understood in the statute in the same sense in 
which it is understood at common law.

Where the provision of a statute is general, it is subject to the control and 
order of the common law.

If a person is allowed by a statute to be a witness, who was inadmissible at 
common law, he becomes at once affected by all the rules and principles which 
appertain to that character. If the statute removes one disability, all others 
remain in full force and application.

This was an action of assumpsit, to which the Defendant pleaded a set-off.   
At the trial, the Defendant, being the keeper of a house of entertainment at 
Moore Court House, offered in evidence his book, containing an account against 
the Plaintiff tor boarding and lodging, amounting to eleven dollars. He proved 
by a witness that the Plaintiff often lodged at his house, but the particular 
items for boarding and lodging, could, as Defendant swore, be proved only by 
his own oath. He was examined under the book debt law, and swore to the items 
in his account. The Plaintiff then moved for leave to introduce witnesses to 
prove that the Defendant was a man not of credit, and unworthy of belief when 
upon oath. This was refused by the Court, and there was a verdict for the 
defendant. A rule for a new trial being obtained upon the ground that the 
testimony offered was improperly rejected, the rule was discharged, and the 
Plaintiff appealed.

Taylor, Chief Justice: The Defendant pleaded a set-off to an action of 
assumpsit, and supported it by his book, which contained an account against 
the Plaintiff, the items of which he proved by his oath. The Plaintiff offered 
witnesses to prove that the Defendant was a man unworthy of belief when on 
oath; but the Court refused to receive them, and a verdict was found for the 
Defendant. This appeal is brought up by the Plaintiff, on account of the 
rejection of these witnesses. Laws 1756, ch. 4, form an important exception to 
the rule of the common law, which prohibits a party from being a witness in 
his own cause: and considering the danger of the exception, and the temptation 
it offers to fraud and perjury, the privilege ought not to be extended further 
than the words of the act warrant. It is in restraint of the common law, and 
ought to be construed strictly. 2 Inst. 455. According to the terms of the 
act, the book shall be given in evidence, if the party make out by his own 
oath or affirmation, that it contains a true account of all the dealings, or 
the last settlement of accounts between the parties, and that all the articles 
therein contained, and by him so proved, were bona fide delivered. To make oat 
by his oath and to prove, are here used as synonymous terms, and they are 
clearly so, in the common use and acceptation of language. Now it is a rule, 
that when a statute makes use of a word, meaning of which was well ascertained 
at common law, the words shall be understood in the same sense it was at 
common law. 6 Mod. 143. To prove a fact, signifies not merely to swear to it, 
but to establish its truth by a credible witness. When the act allows the 
party to be sworn as a witness, it only removed his incompetence, and was 
directory to the Court to admit him: But when it requires him to prove or make 
out certain facts by his oath, it leaves his credibility open to he enquired 
into by a Jury. Even as to his competency, the statute cannot be understood to 
extricate the party from any other disqualification than that created by his 
interest: it leaves him exposed to all other existing exceptions. Shall a 
party be permitted in swear to a book debt, who wants understanding? Or who 
has been convicted of an infamous offence? Yet the same reasoning which is 
employed to shew that the Jury are bound to believe a party admitted under 
this act, tends equally to prove that the Court is bound to receive his 
testimony under all circumstances. It is a salutary rule of construction, that 
where the provision of a statute is general, it is subject to the control and 
order of the common law. 1 Show. 455. If a person is allowed by a statute to 
be a witness, who was inadmissible at common law, he becomes at once affected 
by all the rules and principles which appertain to that character. If the 
statute removes one disability, all others remain in full force and 
application. The unavoidable consequence of excluding proof of the character 
of a witness is, that the Jury are bound to believe him; are not at liberty to 
weigh his evidence; and are deprived of those means of judging of its truth, 
which are supposed to be connected with a viva voce examination, arising from 
the witness' manner and behaviour, and his mode of giving evidence. What is 
this but to take from the Jury their peculiar attribute of judgment of 
credibility, and getting up a speaking automaton, a mere machine, whose 
utterance of certain sounds shall compel them to overwhelm the opposite party 
with injustice? A verdict founded upon the testimony of a witness who is 
destitute of all moral and religious obligation, and strongly tempted by 
interest to give to polluted principles the most mischievous operation, if it 
be not called a perversion of justice, must want a designation. The law could 
never intend so great an incongruity, as that a witness, whose testimony would 
not be believed, when given in the case of others, should in his own, receive 
implicit credence: That infamy alone shall disqualify him, but when interest 
is superadded to infamy, it shall restore him: That in one case he is sworn, 
in order that the Jury, by estimating what degree of credit he is entitled to, 
may ascertain the truth of facts: In the Other he is sworn, that the Jury may 
find a verdict in his favor, without caring or enquiring, whether his evidence 
be true or false.

By the act, the book is also made evidence, if supported by the oath of the 
party, nor is it competent for the Jury to judge of the credibility of the 
book, if they cannot do so with respect to the party, for they both stand upon 
the same footing. But the Court is of opinion, that both are governed by the 
common law principles of evidence. The book may be incompetent, if it appear 
to the Court either that the matter in dispute is not a book account, or that 
the party hath other means of proving a delivery of the articles, than by his 
own oath; or that it doth not contain a true account of all the dealings 
between the parties, or the last settlement of accounts, or, in short, for the 
want of any of those circumstances which must be established, before the book, 
by the terms of the act, is admissible in evidence: and when admitted, its 
credibility is to be weighed by the Jury. Books may exhibit, on their face, 
material and gross alterations, fraudulent appearances and circumstances, 
suspicious entries, and various exceptions, which it would be impossible to 
enumerate. The Jury are to consider whether, under all its aspects, it be 
entitled to their belief.

It is therefore ordered that a new trial be granted, and that upon the trial, 
the Plaintiff be permitted to adduce proof that the Defendant is unworthy of 
belief when on oath.


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