Whitesides v. Twitty

• Decision Date: 31 August 1848
• Citation: 8 Ired. 431,30 N.C. 431
• Court: North Carolina Supreme Court
• Parties: WILLIAM WHITESIDES v. R. S. TWITTY, et al.

8 Ired. 431

30 N.C. 431

WILLIAM WHITESIDES

v.R. S. TWITTY, et al.

Supreme Court of North Carolina.

August Term, 1848.

It is incumbent on a party excepting, when the error alleged consists in rejecting evidence, to show distinctly in it, what the evidence was, in order that its relevancy may appear, and that it may be seen, that a prejudice has arisen to him from the rejection.

In like manner, when the alleged error consists in admitting evidence, the exception must set forth the evidence actually given, as it is the only means whereby the Court can ascertain, whether or not the admission did, or might have done, the party a harm.

Appeal from the Superior Court of Law of Rutherford County, at the Fall Term, 1847, his Honor Judge SETTLE presiding.

The action is debt on a bond for $704 40, given by the defendants to the plaintiff, dated July 12th 1843 and payable twelve months after date, with the interest from date. Plea usury.

On the trial the defendants gave evidence, that one Anderson Staton, was indebted to the plaintiff upon several justice's judgements, on which executions were in the hands of one Morris, a constable in Rutherford county; and that it was agreed between Staton and the plaintiff, that Morris and a son of the plaintiff should go to South Carolina and bring thence into Rutherford a slave and a waggon and team, which Staton had there, and that when brought into this State Morris should seize them under the executions and hold them “to secure the said debts until the said Staton would give other security,” and that, accordingly, the plaintiff employed Morris and his son for that purpose and paid Morris $10 for his services and also paid the expenses of the trip The defendants gave further evidence, that afterwards it was agreed by and between Staton and the plaintiff and the present defendants, that, in consideration that the said Staton would execute a bond to the defendants for the same amount and secure the same by a mortgage on certain property, they, the defendants, would give their bond to the plaintiff for the debt which Staton owed him upon the judgments and the plaintiff would accept the same and discharge Staton therefrom: all which was accordingly then done, that is to say, on the 12th day of July 1843; and the bond now sued on is that, which was so given by the defendants to the plaintiff, and was made for the sum due to the plaintiff for the principal money and lawful interest thereon?? mentioned in the judgments, and did not include the costs. The defendants further gave evidence, that on the 11th day of July 1843, Staton gave the plaintiff a note for $20, and the defendants offered the said Staton as a witness to prove that the same was corruptly accepted by the plaintiff as usurious interest for the forbearance of the day of payment. But he was objected to on the part of the plaintiff, on the ground that he was interested in the event of the suit, and was rejected by the court. The said Staton thereupon executed to the defendants a release of all rights and every equity then existing in or that might arise to him from the determination or result of this suit; but the court, nevertheless rejected him again. The plaintiff then offered in evidence the declaration of the said Staton, made both before and after the execution of the bond declared on “to show the consideration of the same note for 20.” They were objected to by the defendants, but received by the court. The plaintiff had a verdict and judgment, and the defendants appealed.

Gaither, for the plaintiff .

Baxter, for the defendants .

RUFFIN, C. J.

If the opinions given on the trial were erroneous, yet as the case is stated in the bill of exceptions, it is not in the power of the court to assist the defendants, and it is therefore unnecessary and improper to decide the question of evidence. From the nature of a bill of exceptions, as has been frequently declared by this court, it is incumbent on the party excepting, when the error alleged consists in rejecting evidence, to shew distinctly in it, what the evidence was, in order that its relevancy may appear, and that it may be seen, that a prejudice has arisen to him from the rejection. In like manner, when the alleged error consists in admitting evdence, the exception must set forth the...