Andrews v. Smith

BbogdeN, J.

The question of law is this: In a suit brought by an administrator of a deceased person, to recover assets of deceased, alleged to be in the custody of defendant, is the testimony of defendant to a transaction with deceased, taken before a commissioner under the provisions of C. S., 901, at the instance of plaintiff, competent, in behalf of defendant upon the trial of the cause, or should the same have been excluded by reason of the inhibition contained in C. S., 1795?

C. S., sections 900 to 908, not only prescribe the method by which an adverse party may be examined, but they also clearly disclose that testimony taken in accordance with the methods prescribed “may be read by either party on the trial.” It is contended, however, that testimony taken under C. S., section 900, et seq., is not competent in cases where such testimony would invade the boundary of C. S., 1795. It must be observed, however, that the wise protection established by C. S., 1795, may be waived. Meroney v. Avery, 64 N. C., 312; Norris v. Stewart, 105 N. C., 455, 10 S. E., 912; therefore, when an administrator examines the defendant upon oath as provided by C. S., section 900, he does so with full knowledge of tbe fact that tbe statute makes sueb evidence competent at tbe trial and is thus equivalent to a waiver of tbe provisions of C. S., 1795. Tbe case of Phillips v. Land Co., 174 N. C., 542, 94 S. E., 12, while not directly in point because of a fact setting different from tbe case at bar, tends to establish tbe competency of such evidence, irrespective of tbe inhibition of C. S., 1795.

We are of tbe opinion that tbe evidence was competent.

There was no objection to tbe issues submitted by tbe court, and hence tbe essential merits of tbe case have been established by tbe verdict of tbe jury.

We find no reversible error, and tbe judgment, as rendered, is approved.

No error.