| N.H. | Dec 15, 1867
Where one party is an executor or administrator, the other party cannot testify unless such executor or administrator elects to testify, or consents that his adversary may do so. Either party, however, may compel the other to testify; but if the executor or administrator do so upon compulsion by the adverse party, it is not an election in the meaning of the statute. The term itself shows that it must be voluntary ; and that conforms to the obvious' policy of the statute, which is to withhold from the living party the right to give his account of a transaction, when the lips of the other party, whose statement in reply would ordinarily be essential to a safe and just decision, are closed by death or insanity. If, however, his representative deems himself to have such knowledge of the matters in controversy as to make it prudent to offer himself as a witness, knowing that he thereby renders his adversary competent to testify, the law wisely removes the restriction; regarding it as just that if the executor or administrator should voluntarily choose to testify, the adverse party ought also to be admitted. A construction which should enable the living party to become a witness by compelling the representative of the other to take the stand, when he in fact had no knowledge of the matters in controversy, would be a practical abrogation of that provision of the statute, and in direct opposition to its policy.
The remaining question arises upon the exclusion of the defendant’s affidavit, to show that injustice would be done unless he was allowed to testify; the court finding that if such affidavit was received and believed by the court in the absence of any evidence on the other side, it would have made a case for admitting the defendant as a witness under the statute.
In the rejection of the affidavit, we think there was no error. It is true that the evidence was addressed to the court, and for many purposes it would be received, notwithstanding the death of the other party, as upon applications for continuance, and many other matters that are merely interlocutory, and do not furnish the proofs upon which a verdict or decree is to be founded. Here, however, the statements in the affidavit are, or may be, vital, because they may determine whether the living party shall be heard to tell his story, when the other cannot be heard in reply; and we think that the policy which ordinarily excludes such testimony on the final trial, will also exclude the testimony of such party on the question whether injustice may be done. To allow the party to testify on that point, while the lips of the only one who could answer him are sealed, could not, we think, have been contemplated by the framers of this law; to receive it for that purpose, would, we think, go far to repeal a provision of the statute that is not only in a high degree salutary, but accords with the general policy of our legislation^ and the long continued course of the courts of this State. To justify the admission of the living party upon such ground, it must appear from testimony other than that of the party himself, that injustice will otherwise be done.
In Chandler v. Davis, Strafford county, December Term, 1867, a
We are of the opinion, then, that the ruling of the court upon both points is correct, and there must be
Judgment on the verdict.