Opinion · Supreme Court of North Carolina
Isler v. . Dewey
75 N.C. 466
- Type
- Opinion
- Court
- Supreme Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1876-06-05
- Topic
- general
Rodman, J. But two questions are made in this case. 1. Samuel Smith, the grantor in a deed of trust, was introduced and testified on behalf of plaintiff. The defendant then called a witness, who, after objection by plaintiff, was allowed to testify that the memory of the witness Smith was below medium. We think the evidence was competent. *467 Ever since the case of Clary v.
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ISLERv. DEWEY,75 N.C. 466(1876)
B. M. ISLER v. HARRIET M. DEWEY, GUARDIAN, AND OTHERS.
Supreme Court of North Carolina
June Term, 1876.
1. It is legitimate, for the purpose of impeaching the testimony of a witness, to offer evidence that he is a person of weak memory.
2. The proviso contained in the Act of 10 March, Laws 1866, ch. 17, does not prevent the repeal of sec. 12, ch. 10, Laws 1861.
At June Term, 1874, of this Court a new trial was granted in the case on appeal by plaintiff. The case was also before the Court at June Term, 1872. It will be found reported in67 N.C. 93, and in71 N.C. 14.
This action was originally brought in WAYNE, and upon affidavit of the plaintiff made at Fall Term, 1874, of that Court it was moved for trial to WILSON. There was a verdict in favor of the defendant. Judgment, and appeal by the plaintiff.
The facts necessary to an understanding of the points decided are fully set out in the opinion of the Court.
1. Samuel Smith, the grantor in a deed of trust, was introduced and testified on behalf of plaintiff. The defendant then called a witness, who, after objection by plaintiff, was allowed to testify that the memory of the witness Smith was below medium. We think the evidence was competent.
Ever sinceClary v. Clary,24 N.C. 78, it has been (467) considered that all persons, and not experts alone, can give their opinion as to the mental capacity of the maker of a will or deed, and on the same reasoning they may do so as to a person who has been introduced as a witness in the cause on the trial.Bailey v. Pool,35 N.C. 404. A person entirely without memory is incompetent as a witness, and if his memory is weak naturally or has been impaired by disease or age his testimony will naturally have less weight with a jury than if his memory was sound and unimpaired. To prove of a witness that his memory is weak is a legitimate way of impeaching his testimony, and the opinions of those who know him may be resorted to for that purpose.
2. It is contended in this Court, thought the point does not appear to have been made below, that the deed in trust of February, 1867, is void by the force of the act ratified 11 September, 1861 (Laws 1861, 1862, 1863, 1864, republished, p. 8, sec. 12), which says that all deeds in trust thereafter made shall be void as to creditors unless they provide for an equal distribution of the proceeds of the property conveyed among all the creditors of the grantor. This act, however, was repealed by sec. 14, ch. 17, Laws 1866, and the proviso, which says thatnone of the provisionsof the act except the first section should apply to suits on debts contracted since 1 May, 1865, does not prevent the repeal. The concluding words of the section, "but the remedy in such cases shall remain as existed in the year 1860," show clearly that the intent of the provisoPage 332was not to keep alive the act of 1861 for any purpose, but to exclude debts since May, 1865, from the delays provided by the act for prior debts. There is no error.
PER CURIAM. Affirmed.
(468)