{
  "id": 8653026,
  "name": "BARNEY JOHNSON v. Z. RICH, Administrator",
  "name_abbreviation": "Johnson v. Rich",
  "decision_date": "1896-02",
  "docket_number": "",
  "first_page": "268",
  "last_page": "270",
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      "cite": "118 N.C. 268"
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    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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      "cite": "65 N. C., 88",
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  "last_updated": "2023-07-14T17:26:06.557243+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "BARNEY JOHNSON v. Z. RICH, Administrator."
    ],
    "opinions": [
      {
        "text": "Furches, J.:\nOne Benjamin Johnson had an action of ejectment against defendant\u2019s intestate during his life-time, and plaintiff alleges that he was summoned as a witness by the sheriff of Harnett county for the defendant in that action, and attended court as such for a number of terms; that he filed his witness ticket in the clerk\u2019s office; that the court house has since been burned and his tickets destroyed by the fire.\nPlaintiff was allowed to testify, under the objection of defendant, that he attended court as a witness, and the number of days he so attended. Defendant\u2019s objection was overruled and he excepted. This is the only point in the case.\nThe objection is put, under Section 590 of The Code, as a transaction with the deceased. This Section has given rise to a great many questions \u2014 it being an entire departure from the'common-law rule. But this Court, soon after its enactment, in construing the proviso which prohibited parties in interest fiom testifying as to \u201ccommunications and transactions\u201d with deceased persons, gave as a reason, for this exception to the general rule that all persons might be witnesses in their own behalf, and placed it upon the ground that the only person who could contradict such testimony was dead. Hallyburton v. Dobson, 65 N. C., 88. But they did not extend the exception so far as to exclude an interested witness, because the deceased, if living, might contradict what he, swore. To give it this broad construction would exclude every interested witness- and destroy the general rule, and in effect invalidate the statute. Isenhour v. Isenhour, 61 N. C., 640.\nApplying the rules laid down in these cases, it would seem that this evidence was competent. It does not seem to be a transaction or communication between plaintiff' and defendant\u2019s intestate; but it is certainly not such a transaction or communication as the intestate alone had knowledge of and could have contradicted.\nIt. was held by this Court in Gray v. Cooper, 65 N. C., 183, that while the plaintiff could not testify as to the contract of hiring his slaves to the defendant\u2019s intestate, he might testify that defendant\u2019s intestate had them in his possession during the the years 1S62 and 1863, as this was a matter that might be contradicted by others.\nIn March v. Verble, 79 N. C., 19, it was held that while the plaintiff could not testify as to the contract with defendant\u2019s intestate, he might testify that he had owned the \u201c bull \u201d and that it was the only one of the kind he had owned.\nIn Cowan v. Layburn, 116 N. C., 526, it was held that plaintiff was competent to prove that she carried provisions to defendant\u2019s intestate, while she was sick; that this\u00bb was not a transaction between plaintiff and defendant\u2019s intestate, that fell under the exception in Section 590.\nThe only case cited and relied on by defendant\u2019s counsel was Kirk v. Barnhart, 74 N. C., 653. There is no discussion in that case of the point decided, and we cannot give it the construction contended for by defendant. To do so would be to put it out of harmony with too many decisions of this Court.\nAs we are instructed by the authorities cited, the judgment of the court below must be affirmed.\nNo Error. Affirmed.",
        "type": "majority",
        "author": "Furches, J.:"
      }
    ],
    "attorneys": [
      "Messrs. H. JE. Norris and O. J. Spears, for plaintiff.",
      "Mr. L. B. Chapin, for 'defendant (appellant)."
    ],
    "corrections": "",
    "head_matter": "BARNEY JOHNSON v. Z. RICH, Administrator.\nWitness \u2014 Testimony, Competency of \u2014 Transactions with Deceased Person.\nIn an action against an administrator for fees incurred as witness for his intestate, the plaintiff is not precluded by Sec. 590 of The Code from testifying that he attended court as a witness for the intestate and as to the number of days he so attended (it appearing that his witness-tickets issued to him and filed with the clerk had been lost by the burning of the courthouse) since they were facts of which others equally with the intestate had knowledge.\nCivil actioN, heard at Spring Term, 1896, of HarNett Superior Court, before Melver, J. There was a judgment for plaintiff and defendant appealed. The facts appear in the opinion of Associate Justice Furohes.\nMessrs. H. JE. Norris and O. J. Spears, for plaintiff.\nMr. L. B. Chapin, for 'defendant (appellant)."
  },
  "file_name": "0268-01",
  "first_page_order": 304,
  "last_page_order": 306
}