Mothershed v. Cliburn

Court of Appeals of South Carolina

Mothershed v. Cliburn

24 S.C.L. 293

DecidedMay 15, 1839

StatusPublished

This text of 24 S.C.L. 293 (Mothershed v. Cliburn) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mothershed v. Cliburn, 24 S.C.L. 293 (S.C. Ct. App. 1839).

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Opinion

Curia, per Evans, J.

In the case of Sims v. Sims, 2 Con. R. 225, and Davis & Tarleton v. Benbow, 2 Bail. R. 428, it was decided, expressly, that the plaintiff is incompetent to prove the loss of the note sued on, and in the latter case all the arguments ah inconvenient!, are considered by the court. — And if the plaintiff’s oath cannot be received for this purpose, much less shall his declarations be allowed to establish the fact. The general rule is stated in Darby v. Rice, 2 N. & M'Cord. R. 598, to be, that a party to a suit cannot prove his case by his oath or declarations; but that was a case depending on its own peculiar facts, and is considered an exception to the general rule.

This case has been held, in the cases before cited, not to constitute an exception — and the motion for a new trial is therefore granted.

Richardson, O’Neall, Butler and Earle, Justices, concurred.

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Curia, per Evans, J.

In the case of Sims v. Sims, 2 Con. R. 225, and Davis & Tarleton v. Benbow, 2 Bail. R. 428, it was decided, expressly, that the plaintiff is incompetent to prove the loss of the note sued on, and in the latter case all the arguments ah inconvenient!, are considered by the court. — And if the plaintiff’s oath cannot be received for this purpose, much less shall his declarations be allowed to establish the fact. The general rule is stated in Darby v. Rice, 2 N. & M'Cord. R. 598, to be, that a party to a suit cannot prove his case by his oath or declarations; but that was a case depending on its own peculiar facts, and is considered an exception to the general rule.

This case has been held, in the cases before cited, not to constitute an exception — and the motion for a new trial is therefore granted.

Richardson, O’Neall, Butler and Earle, Justices, concurred.

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Bluebook (online)

24 S.C.L. 293, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mothershed-v-cliburn-scctapp-1839.