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

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., sec. 43, 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 the jury find the transaction bonafide.

Affirmed.

Cited: Hawkins v. Carpenter, 85 N.C. 482; Morgan v. Bunting, 86 N.C. 66;Gidney v. Moore, Ib., 484; Ledbetter v. Graham, 122 N.C. 754; McGowanv. Davenport, 134 N.C. 530. (518)