State ex rel. D. Bryant & Bro. v. Morris

Reade, J. If the plaintiff had sued the administrator of the dead constable, he could not have testified as to any transaction between him and the deceased so as to affect his estate. C. C. P. S. 343. But the defendant is not sued as administrator, but as surety of the dead constable, and the question is whether the plaintiff can testify as to transactions between himself and the deceased, which affect the defendant as his surety. It is said that he ought not to be allowed to do this, because whatever he recovers of the defendant as surety, the defendant can recover of the estate of the deceased constable. This would seem to be so; and therefore to allow the evidence against the surety is to allow it indirectly against the principal, which is the evil meant to be guarded against by the exception in the statute. So that while the objection to the evidence is not within the letter, it is within the spirit of the statute. Halliburton v. Dobson, 65 N. C. Rep. 88; Isenhour v Isenhour, 64 N. C. Rep. 640. There is error. Per Curiam. Venire de novo.