Branch v. . Ayscue

Hoice, J. Defendant excepts to tbe validity of tbe trial: First, because tbe court allowed plaintiff to testify tbat Ed Alston, tbe tenant, assigned plaintiff bis share of tbe crop with directions to sell same and apply tbe proceeds in aid of bis children’s support, this on tbe ground tbat it admits tbe unsworn declarations of tbe tenant, but tbe objection is without merit and does not properly characterize tbe evidence. It does not give or purport to give merely tbe unsworn *221 declarations of tbe absent tenant, but is tbe testimony of tbe plaintiff as to bow be acquired bis title, tbe witness speaking on oatb and on matter directly relevant to tbe issue. Defendant excepts further for that tbe court, over bis objection, allowed tbe introduction of tbe account book of Ed Alston, purporting to contain a statement of bis dealings witb defendant, in tbe band-writing of bis daughter, Eula, and plaintiff was permitted to read to tbe jury certain entries in said book as follows: “Loaned Ayscue (defendant)' $200 in 1921. “Paid in April, 1922.” And in our opinion this objection must be sustained. There are conditions permitting tbe introduction of verified account books and copies of tbe same under specified and restricted conditions, appearing chiefly in C. S., secs. 1786-87-88, but we know of no principle, that will uphold tbe competency of an unverified account as containing entries in tbe parties’ own favor, assuredly not where it has not even been made to appear that such person is dead and cannot be bad to give bis sworn evidence of tbe transaction. Peele v. Powell, 156 N. C., 553-560; Bland v. Warren, etc., 65 N. C., 372; 17 Cyc., 365-368. We at first thought that tbe entry might be regarded as harmless because tbe same book showed that tbe amount bad been repaid, but on further consideration of tbe record it appears that defendant claimed and was testifying to advancements to tbe amount of $223.76, chiefly in money, and these entries were capable of being used and no doubt were used as pregnant evidence on tbe part of plaintiff tending to show that these amounts paid to tbe tenant were not advancements as defendant contended, but were only in repayment of tbe loan as shown by tbe entries referred to. They were, therefore, undoubtedly material to tbe principal issue in tbe case, and their reception constitutes prejudicial error which entitles defendant to a New trial.