Rush v. . Steed

Ashe, J. The Code, § 590, declares that, upon the trial of an action, a party interested in the event shall not be examined as a witness in his own behalf, against the administrator of a deceased person, concerning a personal transaction or communication between the witness and the deceased person. A construction was given to section 343 of the Code of Civil Procedure (of which the above section of The Code is a substantial copy), in the case of Peoples v. Maxwell, 64 N. C., 313. It was an action upon the official bond of á constable against his administrator. The plaintiff relied upon a receipt given by the constable, and offered himself as a witness to prove the execution of the receipt by the defendant’s intestate. He was objected to as incompetent, but was admitted by the court; and he testified that he knew the handwriting of the deceased, and that the signature in question toas his, and that he saw the deceased sign it. There was a judgment in the court below for the plaintiff and the defendant appealed to this court, w.here it was held that it was not competent for the plaintiff to prove that the deceased constable signed the receipt in question. “ He might prove the handwriting of the deceased from his general knowledge of it, but to prove that the deceased signed the particular *229 paper was to prove a ‘ transaction ’ between the witness and the deceased, which was forbidden by section 343.” The distinction drawn in this decision is between proving the handwriting and proving the actual signing of the paper. The latter is held to be a “ transaction,” but the former not a transaction — to my understanding a very fine spun distinction, and, in its application to the execution of the in: strument, borders very closely on a distinction without a difference. But it is so decided, and the decision has not only had' the approval of the court (Halyburton v. Dobson. 65 N. C., 88), but the legislature seems to have recognized the distinction by inserting in section- 590 of The Code, the word “personal” before the word “transaction,” which is not contained in section 343, C. C. P. This amendment of that section was most probably induced by the decision in Peoples v. Maxwell. In the case before us, the plaintiff did not prove that he saw the defendant sign the agreement, but only that the signature to it was the hand-writing of the defendant’s testator, which brings the case within the exception mentioned , ill Peoples v. Maxwell. Upon the authority of that case, we are constrained to hold that there was no error, and the judgment of the superior court is therefore affirmed. No error. Affirmed.'