Shields v. Smith, 79 N.C. 517 (1878)

June 1878 · Supreme Court of North Carolina

79 N.C. 517

W. H. SHIELDS and others v. A. H. SMITH and others.

Witness — Party in Interest.

Under § 343, 0. C. P., a party to an action'is a competent witness as to a transaction between himself and a person at the time of such examination deceased, when the representative of such deceased person is not a party to the action.

Civil Action tried at January Special Term, 1878, of Halifax Superior Court, before Schenek. J.

His Honor overruled the objection to the testimony of the witness upon the facts set out in the opinion of this Court. Verdict and judgment for defendants and appeal by plaintiffs.

Mr. T. N. Sill, for plaintiffs.

Messrs. Gilliam Gatling and JBusbee Busbee, for defendants.

Reade, J.

The question being whether a transaction between Hyman and Smith and Briggs was bona fide, the said Smith one of the defendants was allowed to testify as a witness to a conversation between himself and said Hyman as to the very transaction while it was in process of arrangement — the said Hyman being dead at the time of the trial. This would be in conflict with C. C. P., § 343, which provides that no party to the action * * * shall be examined in regard to any transaction or communication between such witness and a person at the time of such examination deceased, where.the representative of such deceased person is a party. But here the representative of Hyman, the deceased person, is not a party and therefore the exclusion does not apply and the testimony was competent. This is the only question of importance, because tne jury find the transaction bona fide.

No Error. Affirmed.