Wake County NcArchives Court.....Cannon, V. Jones, Adm'r Of Nichols 1826
************************************************
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:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 8, 2009, 8:34 pm

Source: Nc Court Reports Vol 11, 1826
Written: 1826

June Term 1826

CANNON v. JONES, adm'r of Nichols. 

From Wake.

The plaintiff was security for one G. The defendant, the administrator of the 
creditor, obtained judgments at law against, the principal and surety in a 
joint action. Plaintiff filed his bill to be relieved against the judgment, on 
the ground that he was discharged in equity by the laches of the holder. G. is 
not a competent witness to prove the truth of plaintiff's bill.

This was a bill filed by the complainant, as a surety to one Glynn, against 
the defendant, as the administrator of George Nichols, deceased, who was the 
obligee in the bond alleging, that a short time after the bond was due, the 
principal offered to pay and discharged the same to the obligee, who refused 
to accept it, and gave further (369) time to the principal to pay the bond, 
without the knowledge or assent of the complainant; that afterwards the 
principal again called on the obligee in his lifetime, and offered to pay a 
part of said bond, when Nichols stated and agreed with the principal, that he 
the said principal should not pay the said bond, but that the said Nichols 
might still keep it to harrass the complainant; and that on several other 
occasions the same language was held by the said Nichols; and on one occasion, 
the said Nichols promised said principal to surrender up said bond; that he 
has died without doing so; that Glynn has become insolvent; that the defendant 
has sued the complainant and principal at law, and prays an injunction and 
general relief.

The defendant, in his answer, donied any personal knowledge of the matter, and 
put the complainant to proof. The only evidence was the deposition of Glynn, 
the principal, who supported the allegations of the bill throughout.

The question presented was, whether the principal in the bond is a competent 
witness to prove the equity of the bill?

Haywood, for the complainant.

The Attorney-General, for defendant.

Taylor, C. J.—The complainant Cannon, was surety for Glynn, and in a note 
given to Nichols, whose administrator, Jones, instituted a suit upon the same, 
and effected a recovery. The complainant has satisfied the amount of the 
judgment, and enjoined it in the Master's office, to abide the event of a 
decree in this cause. He claims to be discharged by the negligence and 
forbearance of the payee during his life-time, and of his administrator since 
his death, who he alleges might have received the money from the principal. To 
establish the facts on which he founds his equity, he offers the evidence of 
Glynn, the principal, and the single question in the case relates to his 
competency.

It is a general rule, that persons who have an (370) immediate interest in the 
event, as being liable to the costs of action, are incompetent witnesses. 
Thus, bail may not give evidence for their principal, because they are 
immediately answerable in case of a verdict against the defendant. In an 
assumpsit for goods sold, the plaintiff having proved the sale of the goods to 
the defendant, and one J. S., who were partners in trade, it was held, that J. 
S. could not be a witness for the defendant, to prove that the goods were sold 
to himself, and that the defendant was not concerned in ihe purchase, except 
as his servant; for by discharging the defendant he benefits himself, as he 
would be liable to pay a share of the costs to be recovered by the plaintiff. 
Peake, N. P., 174. Though Glynn is liable to the payment of this money either 
to Jones or Cannon, yet he is evidently interested to defeat Jones's action 
against Cannon, since in so doing he would be liable to Jones only in the 
costs of one suit; whereas if Jones recovered against Cannon, the latter may 
recover against Glynn, the costs which he has paid in the suit brought by 
Jones. There is consequently a certain benefit resulting to Glynn, if Jones 
fails in the suit, and a certain disadvantage if he succeeds.

This precise question came before the Supreme Court of the United States, and 
it determined that the principal obligor in a bond, is not a competent witness 
for the surety, in an action upon the bond; the principal being liable to the 
surety for costs, in case the judgment should be recovered against him. Riddle 
v. Moss, 7 Cranch, 206.

But the witness offered is under an additional disqualification, by our act of 
1797, c. 487, which allows a surety, who has paid money for his principal, to 
recover the same by a citation and motion in a summary way, without resorting 
to an action. Upon those grounds, I think there is no doubt of Glynn's 
incompetence.

The other judges concurred.

Additional Comments:
North Carolina Reports, Volume 11
Cases Argued and Determined in the SUPREME COURT of NORTH CAROLINA.
For December Term 1825 and June Term 1826 
by Francis L Hawks (Vol. IV)
Annotated by Walter Clark
Richmond: James E Goode Printing Company, Printers
1897

File at: http://files.usgwarchives.net/nc/wake/court/cannon1473gwl.txt

This file has been created by a form at http://www.genrecords.org/ncfiles/

File size: 5.5 Kb