Taylor's Administrator v. Colvin

1 Wright 449, 1 Ohio Ch. 449

• Court: Ohio Supreme Court
• Decided: September 15, 1833
• Status: Published

Opinion

BY THE COURT.

You can now prove the contents of the note.

Culbertson then asked leave to amend by filing an affidavit instanter. Taylor, the subscribing witness of the note,

and one of the heirs of the intestate, was then called; but being questioned as to his interest in the event of the suit, said he had sold out his interest in the estate to his sister, in order that he might be a witness, but that the sale was absolute.

Culbertson objected to his competency.

WOOD, J. Under our law you cannot give evidence in the present state of pleadings, to show that the note was not duly executed. Non est factum, without affidavit of its truth, is no notice to the plaintiff to prepare for such a defence.

WOOD, J. Leave will be granted on paying costs, and proceeding with the trial, or continuing at the plaintiff’s option.

The affidavit was then filed, and the plaintiff elected to proceed with the trial.

WOOD, J. The witness is competent — he has no interest in the event of the suit. The motive which induced him to divest himself of his interest, if given to the jury, may affect his credit, but it does not touch his competency, inasmuch as the transfer is unconditional.