#### J. T. DONOHO, Administrator of W. J. NESBITT, v. WACHOVIA BANK AND TRUST COMPANY.

(Filed 6 June, 1930.)

Evidence D b — Testimony of transaction with deceased held incompetent as being by a party interested in the event.

In an action by the administrator of a deceased person against a bank to recover moneys deposited by the intestate, resisted on the ground that the deceased had authorized the bank to pay the money upon his son’s checks, the latter being present at the time: Held, the son was interested in the event since he would be liable to the plaintiff if he was not authorized to draw the checks and possibly to the defendant, and his testimony was incompetent under C. S., 1795, and the fact that a third person was present at the time of the transaction and testified at the trial does not affect this result.

Appeal by plaintiff from Finley, J., at November Term, 1929, of BuNCOmbe. New trial.

Tbe plaintiff’s intestate, W. J. Nesbitt, from time to time deposited money witb tbe defendant and received from tbe defendant certificates of deposit payable to bim or to bis order. He suffered a stroke of paralysis and for several years was unable to transact any business or to attend to bis affairs. He died 31 July, 1927. Tbe plaintiff qualified as bis administrator and brought suit against tbe defendant to recover tbe money on deposit, alleged to aggregate several thousand dollars. Tbe defendant alleged that tbe total amount of tbe deposits never exceeded $3,210.03, and that tbe intestate bad authorized tbe withdrawal of all tbe funds represented by tbe certificates except tbe sum of $800.

*766During tbe trial tbe defendant was permitted, subject to tbe plaintiff’s exception, to prove by J. E. Nesbitt, a son of tbe intestate, tbat on 9 March, 1923, tbe intestate deposited $600 in tbe savings department of tbe defendant, told tbe bank officials tbat tbe witness was bis son, and instructed them to recognize bis son’s signature to bis vouchers and to let him have tbe money upon bis signing them; also tbat tbe defendant opened an account with tbe witness and bad him to sign bis name on a card. Tbe defendant paid tbe money in controversy to J. E. Nesbitt.

Tbe question is whether in tbe admission of this evidence there is reversible error.

Alfred 8. Barnard for appellant.

Bourne, Parker & Jones for appellee.

Adams, J.

Upon tbe trial of an action a party or a person interested in tbe event shall not be examined as a witness in bis own behalf or interest, or in behalf of tbe party succeeding to bis title or interest, against tbe executor, administrator or survivor of a deceased person concerning a personal transaction or communication between tbe witness and tbe deceased person. C. S., 1795.

Conceding tbat tbe transaction occurred between tbe plaintiff’s intestate, tbe witness, and tbe bank officials, we are confronted with tbe question whether tbe testimony of J. E. Nesbitt was improperly admitted. If we adhere to former decisions of this Court we must bold tbat it was. Tbe witness was interested in tbe event of tbe action. He was called by tbe defendant; bis testimony was favorable to tbe defendant ; it was favorable to himself. If be was not authorized to withdraw the money from tbe bank, be nevertheless received it, and would be liable to tbe plaintiff for tbe amount wrongfully withdrawn. He might be liable to tbe defendant. A judgment in favor of tbe defendant would procure direct benefit to tbe witness. This is one test of bis interest in tbe event. Fertilizer Co. v. Rippy, 124 N. C., 643, 646. Tbe result will be tbe same if tbe transaction be treated as a communication between tbe intestate and tbe defendant. Though not a party to tbe action be was under tbe circumstances of this case disqualified to testify. Wilson v. Featherston, 122 N. C., 747; Witty v. Barham, 147 N. C., 479; Harrell v. Hagan, 150 N. C., 242; Grissom v. Grissom, 170 N. C., 97. Tbe fact tbat Nix was present when tbe transaction took place and afterwards testified at tbe trial is immaterial. “Tbe law is explicit tbat tbe one party shall not testify if tbe other cannot, and this without reference to tbe presence of third parties at tbe time of tbe transaction, unless tbe representative is himself examined in bis own behalf, or tbe testimony of tbe deceased person is introduced as to tbe same trans*767action.” Smith v. Moore, 142 N. C., 277, 284. In Peacock v. Stott, 90 N. C., 518, and in Johnson v. Townsend, 117 N. C., 338, it was shown that the deceased has been jointly interested with another person who was present at the time of the transaction, and who survived.

For error in the admission of evidence, there must be a

New trial.