Mason v. . McCormick

Smith, 0. J. When this canse was before the -court at-June term, 1876, it was decided that Alexander Mason, a *245 ■surety to the prosecution bond, was incompetent as:a wit-mess for the plaintiff to testify to a ’Conversation with Dun■can McCormick, under whom the present defendants claim title as his devisees. At the last trial, on motion of plaintiff’s counsel, the prosecution bond was allowed to be withdrawn and cancelled and another substituted in its place. The interest of the witness, as surety, being thus removed, he was permitted after objection from defendant’s counsel to give in evidence a conversation between himself and the testator, in his life time, and proved that Duncan McCormick, while in possession of the land in dispute, pointed ■out its corners to the witness. The only question raised by the exception is this: Does the removal of the interest of the witness remove also his disqualification to testify to the conversation, and render the evidence competent? The point is directly decided in Peebles v. Stanley, 77 N. C. 243, and a construction'given to the act: Rodman, J., delivering the opinion refers to and approves the ruling as to the incompetency of the witness in Mason v. McCormick, 75 N. C., 263, and says: “It seems to me from a comparison of the Code with all the decisions upon § 343, a general rule may be stated thus, — inall cases except where the proposed evidence Is as to a transaction, &c., with a person deceased, &e., the common law disqualifications of being a party and of interest in the event of the action are removed. But as to such transactions, &c., the disqualifications are preserved with the added one no.t known to the common law, that if the witness ever had an interest, upon the question of his competency, it is to be considered, as existing at the trial?’ There have been many eases, the facts in which required u, construction to be put upon the section, and its great length and numerous involutions have greatly perplexed the court in the effort to give it a dear and consistent interpretation. 4s progress is made in this direction, and one and another of the obscurities of the law are removed, we *246 are not disposed to re-open controversies which these adjudications settle. It is of great importance that the law should be understood, and except in cases of obvious error, the decisions of this court made after full and careful examination and thought, remain undisturbed. We regard the two cases cited as disposing of the whole question. As this entitles the defendant to a trial before another jury, we do not undertake to pass upon the other exceptions appearing in the record. There is error and we award a vemre de nove. Error. Venire de nova.