52 N.H. 605 | N.H. | 1873
The first exception, namely, to the amendment by which the defendant was designated as “ executor of Jona. Ballou, Jr.,” instead of “ administrator of Jona. Ballou,” is overruled.
The statute, the rules of court, and the decisions are uniform and conclusive in favor of the right and propriety of the allowance of such an amendment. Gen. Stats., ch. 207, sec. 8; 14th Gen. Rule; Berry v. Osborn, 28 N. H. 279; Stearns v. Wright, 50 N. H. 293, and cases there cited.
The second exception is also groundless. No requirement of the statute relating to the caption of depositions was violated or omitted. The defendant could not have been misled by the notice, since there was no other suit against him. He was not misled, because his attendance at the caption furnished him abundant facility to ascertain whether or not he was the party whose attendance was invited. The authorities cited by the defendant’s counsel upon this point are not pertinent to the question. See Bundy v. Hyde, 50 N. H. 116, 120.
Neither can his third exception avail the defendant.
Before the statute of 1857, Laws, ch. 1952, sec. 3, parties ordinarily could not testify. By the terms and intent of that act, the disqualification of interest was removed, and parties were made competent witnesses, except in certain specified cases. One of the exceptions was a case where the adverse party was an executor or administrator, in which case the testimony could not be received without the consent of such adverse party.
By the law of 1858, the exception was so modified as to dispense with the necessity for such consent, and to substitute therefor the election of the adverse party to testify himself as a witness, in which case the language -of the act is, “ both parties may testify.”
The change of phraseology and arrangement adopted in the Gen. Stats., ch. 209, secs. 13, 16, 17, does not materially affect the matter in the respect of the present inquiry.
The law therefore now is, that, if an executor or administrator, being a party, elects to testify, the adverse party may testify. There is no limitation or qualification of these plain and unambiguous terms.
The first object of the statute was, to remove entirely the disqualification of interest, as affecting the competency of witnesses. The law of 1857 was the foundation stone of the numerous steps in the direction then indicated, which have culminated in the liberality of the law with regard to the ascertainment of fact by all possible means, irrespective, even, of the marital relation, except in case of strictly confidential communications, and in a most radical change of the law and rules of evidence in criminal procedure.
And the reason why the exception was made, that where one party is an executor or administrator and does not elect to testify, the other party may not testify, undoubtedly was, to place the parties upon equal grounds, and not to allow the living party to a transaction to be a witness in relation to it, when the other party, being dead, cannot testify. But the legislature, in this respect, has failed to accomplish its probable design.
Where the deceased had personal knowledge of the matter in dispute, as in this case, and-the executor had not (as we infer from his neglect to testify upon that subject), it seems manifestly unjust to allow the survivor to testify concerning the matter in dispute, and thus to give evidence which the other party, being dead, could not contradict or explain, simply because the executor has elected to testify upon a different and independent branch of the case, concerning which the deceased, from the nature of things, could have no knowledge, namely, matters occurring after his decease.
But the discretion conferred by sec. 17 of ch. 209, Gen. Stats., is limited to the admission and not to the exclusion of the testimony of the survivor.
The law is, “ where it clearly appears to the court that injustice may be done without the testimony of the party, in such a case [that is, the case where the adverse party,-being an executor or administrator, does not elect to testify] he may be allowed to testify.”
The substance of this enactment was first provided by the law of 1865, chapter 4074, at the next session of the legislature after the publication of the opinion of the court in Moore v. Taylor, 44 N. H. 370, and probably, says Perley, C. J., in Chandler v. Davis, 47 N. H., at page 464, “ in consequence of the suggestion found in that case.” See Moore v. Taylor, at page 375.
If the suggestion of this case may lead to the passage of a law giving discretion to the court (subject to the revision of the full bench) to reject the testimony of the surviving party to the original transaction, in cases where the executor elects to testify, or to such a modification of the law as to provide that in no case shall the testimony of the survivor be received concerning those matters of which the deceased only, in connection with the survivor, had personal knowledge, there will be a much nearer approximation to a footing of equality between parties circumstanced like these, and an avoidance of the imputation of possible, not to say probable, injustice by reason of the admission of the surviving party’s testimony.
Since, however, the legislature has not given the courts a discretion commensurate with the apparent demands of equity, except in a class of cases and circumstances not including the present, the defendant’s third exception must be overruled, and there must be
Judgment on the verdict.
