37 N.H. 494 | N.H. | 1859
The general principle maybe considered as settled in this State, that the mere fact of being party .to the record will not disqualify a witness. If, on account of Ms connection with the suit, a party has an interest in the result, he is incompetent, like any other interested witness. Blake v. Ladd, 10 N. H. 190; Essex Bank v. Rix,
Norris, being plaintiff on the record, was directly liable to the defendant for costs, and was, therefore, clearly incompetent, on account of his interest. A judgment for the plaintiff would discharge him from his liability for the costs of the suit. But the case shows that at the trial the objection to his competency was not put on the ground of his interest, but simply on the ground that he was party to the record. The point on which the court were called to rule was, whether the witness was incompetent because he was party to the record, and not whether he had an interest in the suit, which disqualified him. It is a general rule of practice that a party, on the hearing of a case, is confined to .the grounds of exception which he took at the trial. Whiteside v. Jackson, 1 Wend. 418; Norman v. Wells, 17 Wend. 136 ; Botter v. Beyo, 19 Wend. 361; Dunham v. Simmons, 3 Hill 609 ; Wheeler v. Ryerss, 4 Hill 466; Pickett v. Allen, 10 Conn. 146, 156. In the Essex Bank v. Rix, 10 N. H. 201, where a defendant was defaulted and had an interest in the costs of the suit, which made him incompetent to testify for the other defendant, and on trial the plaintiff objected to his competency because he was a party to the suit, and did not assign his interest as a ground of objection, it was held that the objection on the ground of interest could not be urged on the hearing.
This case differs in some respects from the Essex Bank v. Rix. In that case the interest of the defaulted party was not direct in the judgment which might be rendered in the cause; for, under our statute, judgment would go against him in any event of the trial between the plaintiff and the other defendant. His interest was consequential, depending upon the claim of the other defendant, who was a surety, to recover of him the costs, of the suit, in case judgment was rendered against him. But in the present case the interest of the plaintiffs is direct, and
¥e have no difficulty in bolding that tbe witness, Rogers, could not be excluded because she bad testified differently on former occasions. Tbe contradiction went to her credit, and not to her competency.
As to the caption of the deposition, it appears to be plain, on looking at tbe form of it, that tbe signature of the magistrate was intended to certify tbe taking of tbe oath as well as tbe taxation of costs. There is but one place left in tbe printed form for tbe signature of tbe magistrate; tbe signature follows tbe whole caption, and in grammatical construction well applies to both certificates. In this tbe present case differs from Burnham v. Porter, 24 N. H. (4 Foster) 581, where the form of the caption evidently contemplated separate signatures of tbe magistrate to separate certificates of tbe oath and of tbe
It is quite clear, on the authority of Latham v. Kenniston, 13 N. H. 101, that Parsons, if living, would have been incompetent as a witness for the plaintiff, on account of his interest in the suit, and his estate since his death is interested in the same way. Consequently his-wife would be incompetent, if she has an interest in the estate. She is entitled to a distributive share in the estate, if there is any thing to be distributed among the heirs or next of kin. It was proved on trial, to the satisfaction of the court, as we must understand the case, that the witness had no real interest in the suit, because there was no estate of her husband out of which, in any event of the trial, she could receive any thing as her distributive share. The question which arises on this part of the case is one of some difficulty, and upon which the authorities ai’e at variance.
In some cases it has been held that where there is in contemplation of law a fund, like the estate of a deceased or bankrupt person, in which the witness may have an interest, no evidence can be received to show the state of the fund and the prior-claims upon it to be such that nothing will in fact be left for the witness, in any event of the suit on trial. Hillhouse v. Smith, 5 Day 432, 438; Clark v. Hoskins, 6 Conn. 106, 108; Finks v. English, 3 Blackf. 139. This rule has the important advantage of simplicity, and relieves the court from entering on an investigation of facts, which may sometimes prove more difficult and intricate than the main question on trial.
Other cases hold that the witness is competent, if the party who offers him shows to the court that he has no real interest, because the state of the fund is such that he can receive nothing from it in any event of the suit. Youst v. Martin, 3 S. & R. 427; Boyer v. Kendall, 14 S. & R. 178; Edgell v. Bennet, 7 Vt. 534.
The plaintiff here showed to the court that there was in fact no estate of Parsons out of which the witness could receive any thing as her distributive share in any event of the cause; and, on the whole, we think she was competent, and that the court in such case may receive evidence to show the condition of the estate to be such that the witness has no real interest. If the change which the recent statute has introduced into the law on this subject, should remain permanent, the decision of this point will probably be of little practical importance.
It is further objected to the witness, Bogers, that she was incompetent, because her husband in his life time was interested in the subject matter of the suit. There are authorities that the intimate relation subsisting between husband and wife is not to be considered as dissolved by death, so as to let in the evidence of either as to transactions occurring during their joint lives ; and that this rule is not confined to eases where knowledge of the facts came to the survivor through confidential communications of the deceased party. Monroe v. Twistleton, Peake’s Ev., add. cases 87; Aveson v. Lord Kinnaird, 6 East 188; O’ Connor v. Majoribanks, 4 Man. & Granger 435.
- But the authorities in this country would seem to be nearly unanimous in favor of admitting the surviving wife as a witness to matters in which her deceased husband- was interested, unless she acquired her knowledge of the facts through confidential communications from her husband. Williams v. Baldwin, 7 Vt. 506 ; Edgell v. Bennet, 7 Vt. 534 ; Smith v. Potter, 27 Vt. 304 ; Coffin v. Jones, 13 Pick. 445; Stanton v. Wilson, 3 Day 37; Ratcliffe v. Wales, 1
In this case the witness did not come to her knowledge of the facts to which she testified through any private or confidential communications of her husband, and we think that she was properly admitted.
Judgment on the verdict.