Richards v. Munro

Citations

• 30 S.C. 284
• 9 S.E. 108
• 1889 S.C. LEXIS 99

Syllabus

<p>1. In action by the executor of a deceased father against the administrator of a deceased son to recover the amount of a note of the son paid by the father as surety, the defence was that the payment was intended by the father as a gift. Held, that statements made by the father at the time of this payment were competent testimony in support of the defence, they being admissions against his interest, and the plaintiff being his privy by representation.</p> <p>2. The fact that the father had made a will does not prevent defendant from showing a parol gift inconsistent with the provisions of such will.</p> <p>3. The defendant testified that he, while administrator, had had repeated conversations with this father in relation to the settlement of the son’s estate, and that the father had knowledge of the administration, but never made any demand for a payment of this note. Held, that this was not testimony as to any transaction or communication with the deceased, and therefore not incompetent under section 400 of the Code.</p> <p>4. In reply, plaintiff was offered as a witness to prove the substance of conversations with his testator concerning the matter at issue, and to prove what directions testator had given him about the note. Held incompetent testimony under section 400 of the Code.</p> <p>5. The charge in this case, when read as a whole, was not a charge on the facts.</p> <p>6. An exception by plaintiff complained that he was required to make his challenges to the jury successively and not alternately with defendant; but no foundation for this exception appeared in the “Case.” Held, not a ground for new trial.</p>