48 S.E. 515 | N.C. | 1904
It is alleged in the complaint, and not denied in the answer, that Emma Butler, the plaintiff's intestate, an ignorant colored woman, held two notes executed by the defendant — one for $1,000 and the other for $700. The plaintiff alleges that the said Emma carried the notes to the defendant to calculate the amount due on the same and for payment; that the defendant, claiming to be busy, told her he would make the calculation and come down and pay her, retaining the notes, but that he has never done so. The defendant denies this, and contends that he paid off the notes in full, and, having thus obtained possession of the notes, he has since destroyed them.
Two witnesses — Keen and Hall, the latter the husband of the plaintiff administratrix and not a party to the action — testified to the conversation between the deceased and the defendant at the time the notes were left with the defendant. (35) Thereupon, the court permitted the defendant himself to testify as to the conversation between himself and the deceased, over the plaintiff's exception. In this there was error. The Code removes generally from witnesses the common law disability by reason of interest, but excepts (section 590) "parties * * * testifying in their own behalf concerning a personal transaction * * * between the witness and the deceased." * * * See Bunn v.Todd,
There is this exception to the disqualification still retained by section 590 in the above cases: "Except where the executor, *26 administrator, etc., is examined in his own behalf, or the testimony of the lunatic or deceased person is given in evidence concerning the same transaction or communication." Death having closed the mouth of the deceased, the law (as heretofore) closes the mouth of the other, except only where the personal representative of the deceased opens the matter by testifying himself or putting in the testimony of the deceased. This means the testimony of the deceased as his deposition de bene esse, or evidence of his testimony at a former trial, and not merely testimony for theplaintiff by competent witnesses, as in this case. Else the statute, instead of the words used, would have simply made the defendant competent "whenever any evidence of the personal transaction * * * is introduced in behalf of the plaintiff administrator or executor." On the contrary, to make the defendant competent, either the plaintiff executor (or administrator) must himself testify as to the transaction, or he must introduce the testimony of the deceased — not, as here, the testimony of disinterested and therefore competent witnesses — to prove the transaction.
This exact point was decided in McRae v. Malloy, (36)
The rule is stated in McCanless v. Reynolds,
In Burnett v. Savage,
Error.