
    James Barry v. S. & W. Wilbourne.
    Secondary evidence is not admissible to prove the execution of a deed, if a subscribing witness is living, and within the jurisdiction.
    A party to a deed is not a competent witness to prove his own execution of it.
    Surprise is not a ground for a new trial, when it is the consequenee of the parly’s negligence.
    Tried before Mr. Justice Johnson, at Union, August Term, 1830.
    Trespass to try titles. The plaintiff offered a deed of James Whitlock, and proved the hand-writing of the grantor, and the death and hand-writing of one of the subscribing witnesses. A wituess was then called to prove the hand-writing of Absalom Walker, another subscribing witness, but on his examination, testified, that Walker was at that time living in Spartanburgh district; that although he had a few years previously removed from Union, with the design of transferring himself to the Western country, yet he had changed his mind, and settled in Spartanburgh : and that this was well known to his relatives, some of whom lived in plaintiff’s neighbourhood. The counsel for plaintiff conceded that under this testimony the deed could not be given in evidence; but moved for a continuance of the cause, to procure the attendance of Walker, and urged that the plaintiff was surprised by the testimony of the last witness. His Honor refused the motion ; the surprise, if any existed, being occasioned by the plaintiff’s neglect to make the requisite inquiries after Walker, either of Walker’s relatives, or even of his own witness. The plaintiff then offered to examine Whitlock, the grantor, as to the execution of the deed ; but his competency being objected to, his Honor sustained the objection. Citing Abbot v. Plumbe, 1 Doug. 210. and Call v. Dunning, 4 East, 53.
    The plaintiff suffered a nonsuit, and now moved to set it aside, and for a new trial, on the grounds ; 1st, That the plaintiff was surprised by the testimony, and ought to have been allowed to continue the case: 2d, That Whitlock was a competent witness to prove the execution of his own deed.
   Per Curiam

We concur in opinion with the presiding Judge on both grounds.

Motion refused.  