Hawkins v. Carpenter

• Decision Date: 31 October 1881
• Citation: 85 N.C. 482
• Court: North Carolina Supreme Court
• Parties: E. D. HAWKINS, Adm'r, v. J. H. CARPENTER and others.

85 N.C. 482

E. D. HAWKINS, Adm'r,

v.J. H. CARPENTER and others.

Supreme Court of North Carolina.

October Term, 1881.

CIVIL ACTION, tried at Fall Term, 1880, of RUTHERFORD Superior Court, before Seymour, J.

Judgment for plaintiff, appeal by the defendants.

Mr. J. F. Hoke, for plaintiff .

Mr. D. G. Fowle, for defendants .

SMITH, C. J.

The plaintiff, administrator de bonis non of Robert Scruggs, brings this action against the defendants, the sureties to the administration bond of M. Durham, the former administrator, to recover a balance of $112 in his hands ascertained and reported by auditing commissioners. The defendants in their answer, not denying the indebtedness of their principal, allege that it has been paid, and they are no longer liable therefor. To sustain this defence they introduced as a witness W. C. Durham, one of the heirs at law of the intestate, M. Durham, and proved a conversation with the plaintiff, in which he stated that he had taken the note of Plato Durham, another heir at law and since deceased, in full discharge of what was due upon the said administration account.

In reply the plaintiff was allowed, after objection made and overruled, to testify and say, that Plato Durham gave him no note but an obligation to pay him one hundred dollars when his ancestor's lands should be sold, and it was not accepted in discharge, but on condition of full payment; that no payment had been made, and the estate of Plato Durham was insolvent.

The exception to the competency of the plaintiff to thus testify presents the only matter for consideration upon the appeal.

The declaration is offered and received as an admission of the alleged pre-existent fact of payment, and relates to a transaction between the plaintiff and a deceased heir at law of the intestate, whose sureties only are sued, and the evidence comes from another heir at law. The case does not come within the operation of the disabling proviso of section 343 of the Code. The act prohibits the examination of a party to the action, and certain others specified, “in regard to any transaction between such witness and a person at the time deceased, insane or lunatic, as a witness against a party then prosecuting or defending the action, as executor, administrator, heir at law, next of kin, assignee, legatee, devisee, or survivor of such deceased person, or as assignee or committee of such insane person, or lunatic, when such examination,” &c., neither of which relations...