Hopkins v. . Bowers

12 S.E. 984, 108 N.C. 298

• Court: Supreme Court of North Carolina
• Decided: February 5, 1891
• Status: Published

Opinion

Clark, J. —

after stating the case: It is not necessary to consider whether the exhibition of the defendants to the jury made them witnesses of the plaintiffs so as to entitle the defendants’ counsel to have them sworn and cross-examined. For, conceding it to be so, the only evidence given by the exhibition of the witness Ann to the jury at the instance of the plaintiffs was as to her color, her hair, etc, tending to show that she was of mixed blood. This was not evidence of any transaction or communication between her and the deceased. Those things existed, and would have been the same if she had never so much as seen Nash Booth, and as to them she was a competent witness, unaffected by The Code, §590. Norris v. Stewart, 105 N. C., 455; Bunn v. Todd, 107 N. C., 266. It was, therefore, error to allow her counsel to examine her as to any transaction or communication with the deceased, under whom she and the other defendants claim. The Code, § 590. Besides, by that section, when the executor, etc., or person deriving title or interest is examined as to any transaction or communication with a person deceased, the opposite party is rendered competent to give evidence only “ concerning the same .transaction or communication.” The door is not open to the opposite party generally, but only as to the particular transaction put in evidence. Sumner v. Candler, 92 N. C., 634; Armfield v. Colvert, 103 N. C., 147. A fortiori, when the plaintiff examines the defendant as to a matter not within the inhibition of section 590, the defendant is not thereby at liberty to disregard the prohibition and testify as to any and all transac tions with the deceased, such as giving evidence to prove her marriage to the deceased, her living with him 'as man and wife and the paternity of the children, the other defendants.

This renders it unnecessary to consider the other exceptions.

Error.