In Re Will of Clodfelter

AxubN, J. It is the customary practice, when a paper-writing is referred to in a deposition, to attach the writing to the deposition as an exhibit, or, if two or more depositions are taken referring to the same writing, to attach to one and to identify it in the other by reference, or if the paper is one over which the parties have no control, as in the case of a record or of a paper in the custody of a court, to attach an exemplified copy (Thompson on Trials, sec. 825), and this is the safer and better rule, as it lessens the opportunity for deception and fraud; but in the absence of statutory regulation this is not the only means of identifying the paper. The section cited from Thompson on Trials concludes with the statement: “Moreover, it has been said that where papers alleged to have been exhibited to the witness at the giving of his deposition are not sufficiently identified by the officer, they may be identified by parol evidence,” and this language is almost identical with that used in Weeks on Depositions, sec. 358, except in the latter it is stated as a positive rule of evidence. In Dailey v. Green, 15 Pa. St., 127, Bell, J., discussing the identification of a paper referred to in a deposition, says: “We have the testimony of Green, who was present, that the papers thus referred to are those which were exhibited to the witness. I am at a loss to comprehend why, under the circumstances, parol evidence is not admissible to prove the fact.” With us there is no statute requiring exhibits to be attached to the deposition, as there is in some States, and in the absence of such provision the fact of identity may be proved as any other fact in issue. The paper exhibited to the witness in this case could not have been attached to the deposition, if it was the paper offered for probate, because in that event it had been probated in common form and was on file in the clerk’s office as required by Revisal, see. 3129, and the witness who identified the paper was the commissioner, who was disinterested. It also appears that the caveators were represented at the taking of the deposition, and that they offered no evidence tending to contradict the commissioner. *530 The case of Jones v. Herndon, 29 N. C., 79, while not directly in point, is authority for the position that it is not indispensable to attach the paper to the deposition as an exhibit. We therefore conclude that the evidence as to the identification of the paper was competent. It is true, as contended by the caveators, that offers of compromise cannot generally be given in evidence (Hughes v. Boone, 102 N. C., 137), although it is competent to prove distinct admissions of fact made in the course of an effort to reach a settlement (Baynes v. Harris, 160 N. C., 307), but the evidence of Isaac Olodfelter objected to by the caveators does not come within these principles. J. A. Olodfelter testified for the caveators to a conversation with Isaac Olodfelter to the effect that the latter admitted that the paper he was offering for probate was not a valid will, and that he made various offers of settlement, and Isaac Olodfelter was then introduced for the propounders, not to prove an offer of compromise, but to relate his version of the conversation, and he had a right to tell all that was said relating to the subject-matter. Paine v. Roberts, 82 N. C., 453; Roberts v. Roberts, 85 N. C., 9; Gilmore v. Gilmore, 86 N. C., 303. If the caveator could say that the propounder offered to settle, why could not the-propounder say, in reply, “No; you offered to settle or compromise” ? No error.