48 Ark. 133 | Ark. | 1886
OPINION.
In an action by or against an administrator, in which judgment may be rendered for or against him, the opposing party to the record is not a competent witness to speak of personal transactions with or statements by the deceased. This is the written law of the state, as found in sec. 2, Schedule Constitution 187J¡.. The reason for it, it is said, is found in this, viz : that experience teaches that it is the part of prudence and' wisdom to provide that when one of the parties to a transaction is cut off from giving his version of it hy death, the other shall not be heard. McRae, as admr., v. Holcomb, 46 Ark., 306.
The appellant’s case is within both the letter and the reason of the law. He was a party to the record, and offered to testify to statements made by a person who was at the time of the trial dead, and whose administrator was the opposing party; and the testimony would have tended to augment the amount of the liability of the deceased’s estate.
The witness was competent when the deposition was taken, because he deposed in the lifetime of his adversary; but in the meaning of the provision quoted above, he testified, or offered to testify, by the use of the deposition, at the trial. He was then incompetent to detail statements made by the deceased. The case of Rinck v. Brooks, 28 Iowa, 484, is a case in point. See, too, Cottrell v. Cottrell, 81 Ind., 87; Chess v. Chess, 17 S. & R., 409,412 Fielden v. Lathens, 6 Abb. Pr. N. S., 341.
Let the judgment be affirmed.
