48 Me. 35 | Me. | 1860
In this case, both Edmund Roberts und his wife, the two defendants, offered themselves as witnesses. The Judge excluded them; and to this exclusion the defendants except.
The case is one within § 83, c. 82 of R. S. It is brought by. plaintiff as executor of William Thing, and the provisions of the preceding five sections, by which parties are admitted as witnesses, do not apply to the case. The old common law rule of exclusion remains.
The defendant contends that the amendment of § 83, by the Act of 1859 and the Act of April 2d, 1859, have made provisions which authorize the admission of the husband and wife. The amendment provides that, “ if such representative party is nominal only, the interest being in another or others, in whose name or names the action might have been brought, the said five sections shall apply, and the nominal party and the adverse party shall be examined as witnesses.”
An executor, who sues as such, on a debt claimed to be due to the estate, cannot be a nominal party unless it appears that his testator or he, as executor, had or have no interest in the claim, but the interest is in another, or others, in whose name the action might have been brought or might be defended.
There is no evidence in the case that any other party had such interest, or that the action might have been brought in the name of any other person. The object of this amendment was to reach those cases where parties, who might have brought the action in their own names, have transferred the claim, without the actual interest, and thus prevented the defendant from being a witness.
This is not such a case.
The other Act of 1859, (c. 102, p. 96,) in relation to the admissibility, as witnesses, of husband and wife, does not embrace cases in which they are both parties. It only removes the objection arising from the conjugal relation, which was based on grounds of policy to prevent domestic broils and family quarrels. Walker v. Sanborn, 46 Maine, 470.
It is very clear that when, as parties, a husband or wife would be excluded under the former statute, because the action was brought by an executor, they cannot be admitted because the recent statute has removed an objection to their competency as witnesses generally.
Exceptions overruled,.
