Opinion
(June Term, 1852.)
1. If, in the institution of a suit, or in its progress, the course of the Court requires a party to make an affidavit, the fact of his being infamous does not make him incompetent to do so; as an affidavit to continue cause, etc.
2. On the other hand, if a party offers himself as a witness in his own case (as, for instance, under the book debt law) the fact of his being infamous will make him incompetent.
3. A party, though he is infamous, is competent to make affidavit to the truth of the facts alleged in his bill, seeking to recover the amount of a lost bond.
CAUSE removed from the Court of Equity of MOORE, at Spring Term, 1852.
Strange for the plaintiff.
Winston for the defendants.
The bill seeks to enforce payment of a note, under seal, for $300, which the plaintiff alleges was executed by the defendants to him, and which he further alleges was by accident lost out of his possession. The plaintiff annexes to the bill his affidavit of the truth of the matters therein set forth.
The plea alleges that there has been a conviction and judgment against the plaintiff for mismarking a hog. Two questions are presented: Does the conviction and judgment make the plaintiff infamous? If so, is he incompetent to make the affidavit?
Without deciding the first question, and assuming that the offense of mismarking, created by the statute, is infamous, we are of opinion that the plea was properly overruled, on the ground that the plaintiff was not incompetent to make the affidavit.
(241) "If, in the institution of a suit, or in its progress, the course of the Court requires a party to make an affidavit, the fact of his being infamous does not make him incompetent to do so: for, if an affidavit be required, and, at the same time, the party is held to be incompetent to make it, he cannot pursue his right, and there will, in effect, be a denial of justice. This principle is settled, as well upon the reason of the thing as by authority. For instance, a party infamous for crime, or a free negro in a suit against a white man, is competent to make an affidavit to sue __________ , or to continue the case, or to remove the case, etc. Davis v. Carter, 2 Salkeld, 461; Hall v. Cox, 1 N.C. 15; ________ v. Kimbrough, id., 16.
On the other hand, if, under some of the exceptions to the general rule, a party offers himself as a witness in his own case, the fact of his being infamous will make him incompetent: for, if he is not a competent witness between third parties, of course he cannot be competent to give evidence in his own favor. This principle is also well settled upon the reason of the thing and upon authority. For instance, a party who is infamous cannot prove his debt under the book debt act. Walker v. Carney, 2 Strange, 1148; 1 Gr. Ev., sec. 374.
The only question is, which of these two principles applies to the case now under consideration? Evidently the first; for the affidavit of the plaintiff is required by the Court as a condition precedent to the jurisdiction of this Court, and a change of the forum.
PER CURIAM. This opinion will be certified.
Cited: Latham v. Dixon, 82 N.C. 56.
(242)