Williams v. . Cooper

18 S.E. 213, 113 N.C. 286

Opinion

Clark, J.:

The plaintiff, administrator and distributee of the payee, was competent to prove the execution of the bond by the defendant. The incompetency attaches only to the surviving party to the transaction. The Code, §590. The representative of the deceased can testify, if he so elect, under penalty of making the surviving party a competent witness to the same transaction. Thompson v. Humphrey, 83 N. C , 416. On cross-examination by the defendant, witness stated that he did not know of any payment made by the defendant. The witness’was not examined in his own behalf, except in regard to the execution of the note. This rendered the defendant a competent witness only “ concerning the same transaction or communication ” by the very terms of the statute. Kesler v. Mauney, 89 N. C., 369; Burnett v. Savage, 92 N. C., 10; Sumner v. Candler, 92 N. C., 634; Hughes v. Boone, 102 N. C., 137; Bunn v. Todd, 107 N. C., 266.

Nor could the door be opened wider by the defendant cross-examining the witness as to another transaction, to-wit, payment on the note, as to which the witness was not offered, and did not testify in chief. To permit this course would be to nullify that portion of the section (590) which restricts the competency of the opposite party when an administrator has been offered as a witness to the “ same transaction.” This would become meaningless if the opposite party could, by cross-examining as to other matters, make himself competent' as to them also. No Error.