63 N.H. 206 | N.H. | 1884
That the plaintiff could not make himself a competent witness by his own testimony, and that, in ordinary cases *214 coming within the statute exception (G. L., c. 228, s. 16), the living party cannot testify to transactions known only to himself and the deceased, are propositions established by repeated decisions of this court. And upon the question of injustice we find nothing in the reported facts which distinguishes this case from the numerous other cases in which the living party has been excluded as a witness.
But it has been argued at great length, and with much ability, that the exclusion does not apply in matters of account. We do not assent to this proposition; and besides, Moore v. Taylor,
It has been further contended, that partners are each the agent of the other, and therefore that an arrangement entered into with one partner about the firm business must be considered as an arrangement with the others, and that consequently the statute does not apply, because the claims here on both sides being partnership claims, the plaintiff is the real party on one side, and the Pushee firm, and not an individual member of it, on the other, and "so the case stands just as it would if the plaintiff had sued the firm prior to the death of any member, and the deceased Pushee had died as he did, and his administrator had come in as he did and sought to defend the suit, first, by setting up matters in defence, and second, by instituting a suit in favor of the firm against the plaintiff by the statutory action known as set-off;" and that to exclude the plaintiff as a witness the whole firm must be dead.
Concede the argument to be sound, the conclusion does not follow. The sole design of the statute was to place parties to suits upon equal footing. Moore v. Taylor,
The same conclusion follows if a narrower and technical construction be given. The phrase "neither party shall testify," c., may be fairly held to mean the legal party to the action. In fact, this is the common meaning of party in legal instruments and proceedings. In this view, the plaintiff's action cannot be regarded as one against the firm. His case is an appeal from the decision of the commissioner on the estate of the deceased Pushee, disallowing his claim against that estate alone. The plaintiff is one party, and the administrator, representing the heirs and creditors of the deceased, is the other party. No other parties appear on the record, and no others are before the court, or will be affected by the result. Should the surviving partner be sued hereafter by the plaintiff for the items claimed here, the judgment in this proceeding would not even be evidence against him. Legally, therefore, the administrator is to be regarded as the sole defendant, and the case stands as it would if the matters in dispute were based upon the individual contract of the deceased with the plaintiff.
The remaining exception to the disallowance by the referee of the items for pasturing requires but brief consideration. It is sufficient to say, that on the reported facts the law does not imply a promise to pay for the pasturing (Bank v. Getchell,
Exceptions overruled.
SMITH and CARPENTER, JJ., did not sit: the others concurred. *216