Western sentinel. [volume] (Winston [i.e. Winston-Salem], N.C.) 1856-1886, 1884-01-17

from It's cAcCuLlOu, StSCclldllSO anu uC-
clared.
Passing by the numerous complaints
and answers as amended from time to
time, the defendants rely upon the
statute of limitations put in operation
as they allege by demand for an ac-
count made upon the intestate in May
1878 and never rendered, as a bar to
an account; and this defence, present
ed in a series of issues was tried before
the jury at Fall term 1888 in the Su-
perier court of Davie to which the
record had been removed. The issues
with the responses to each were thus
!. Did the plaintiff in the month of
August 1877, or thereabout, demand
an account and settlement of [. G.
Lash through the defendant Lemly in
the presence of Lash, and was said de-
mand for an account and settlement
refused?
Answer. There was demand made
upon [. G. Lash, through W. A. Lem
ly in the 1st National Bank of Salem,
n. c., but not in the presence of [. G.
Lash, as he was sick in another room
across the passage in the said Bank
and the said demand was refused.
II. Was w. A. Lemly the agent of
Lash and authorized by him to man
age his general business?
Answer. Yes.
III. Was the said Lemly authoriz-
ed and empowered by the said Lash
to attend to the special matter of his
agency in regard to county bonds for
the county of Forsyth
Answer. Yes.
". Was there demand made for
an account by plaintiff in the year
1878 as alleged in the answer OF the
defendants?
Answer. No.
V. Is this action barred by the
statute Of limitations?
Answer. No.
Upon these findings it was adiudged
by the court that the defendants come
to an account with the plaintiffs touch
ing the matters alleged in the plead
ings and that Kerr Craige be appoint
ed referee to take and state an ac-
count touching the whole of the trans
actions of the intestate as financial
agent for Forsyth county, and make
report to the next term.
From this judgment the defendants
appeal to this court, and we proceed to
consider the exceptions contained in
the record.
Ex. The plaintiffs introduced as
witness before the jury A. E. Con-
rad, Chairman of the board of County
Commissioners, the plaintiff in the ac-
ton when objection was made by the
defendants to his competency for the
reason that he is a party plaintiff f.
was such when the suit begun-and is
a tax payer, owning taxable property
in the county of Forsyth, and further
that he can not testify to any trans
action which took place between the
intestate and himself
The object on being overruled in
answer to the question with whom
did you transact your business, Lemly
or Lash? The witness replied, | did
all the transactions with Lemly.
The defendants repeated their OBJ
lection to the detail of any transac-
tions with Lemly or conversations be-
tween the witness and him, not in the
presence Of Lash, or any such with the
intestate himself. The witness was
however permitted to proceed and tes-
tify as follows:
"After the Belo suit was decided [
went to Mr. Lash's room. He was sick
in bed. / asked him what amount of
tax would have to be levied to meet
the payments on the bonds. He re-
piled about 66s on 500 worth of
property. | asked who owned the rail-
road bonds. He said: | don't know.
They we're thrown out in the market.
He further said if any one presented
any of the bonds, he had surplus mon
ey and would pay them of.
The testimony recited as to the con-
versation with the intestate we are
disposed to think comes under the in
hibition of section 353 of C. G. p. as
it certainly does within the mischief
to be provided against. Although the
witness presence in the action is in his
corporate capacity as member of the
county board as is his signature to the
prosecution bond, the purpose of the
statute was to prohibit party to the
suit from giving evidence off personal
communication or transaction with a
deceased person against his represen-
tatives in the action. While perhaps
it should have been ruled out, it is not
pertinent to anv issue before the jury
and is harmless itself 1t would be
important in taking the account be-
fore the referee, but in no way can it
have been prejudicial to the defend
ants upon the inquiries as to the time
when demand was made and the
statute commenced running. The
matter of the conversation was entire
ly collateral and irrelevant, and rather
favorable than otherwise to the de-
fence set up in the answers If it
could be seen that the conversation
detailed might have had an injurious
influence upon the minds of the jurors
we should feel bound to set aside the
verdict, but when its tendency is plain
ly otherwise and it becomes merely
irrelevant the credit ought not to be
disturbed.
AS the rejection of evidence in itself
and incompetent, but not material to
the point in issue cannot be assigned
for error. Carrier VS.. Jones 6S, n. c.,
130, so the admission of it when i'm
pertinent and plainly not misleading
can not be.
II. The objection to the testimony