Superior Court of North Carolina, 1802

Mourning v. Davis.

Superior Court of North Carolina · Decided July 5, 1802 · Taylor

3 N.C. 219

Counsel

Haywood , for complainant, offered the evidence of a witness then present, and prayed that he might be sworn; this was objected to, and it was said that JOHNSTON, J., at last Wilmington court, would not receive such testimony offered by Haywood , in Walker v. Ashe, ante , 181. It was answered, it was true JOHNSTON, J., would not receive it, nor recognize the practice as stated by the counsel offering it, which was that a witness may be summoned to give testimony in equity as well as at law; but that the party summoning him must pay the costs of his attendance. It is equally true, however, that in Blount v. Stanley , in this Court, a witness was offered and objected to by Haywood , and that JOHNSTON, J., did receive him, and founded his decree upon that testimony.

Opinion of the Court

Taylor, judge,

I will not alter the practice, and the witness must be sworn, but I can perceive that cases may happen, where its reception vviil be attended with inconvenience; as where a witness ts produced, to swear to a material fact, which had n< >t, beee, sworn to before, the other party is taken by surprise ; and per--haps had he been apprized in time, he would have- disproved its or discredited the witness.

The evidence was received, and a.decree founded.upon ifc,

Case-law data current through December 31, 2025. Source: CourtListener bulk data.