35 Md. 428 | Md. | 1872
delivered the opinion of the Court.
The cause of action in this case is the joint and several note of the appellee and James Wason, bearing date in 1864,
The only question presented is whether the appellant was a competent witness to prove the facts set out in the exception ? Its solution depends upon the construction of the second section of the Act of 1868, chap. 116, which provides that “ when an original party to a contract or cause of action is dead, or shown to be lunatic or insane, or when an executor or administrator is a party to the suit, action or other proceeding, either party may be called as a witness by his opponent, but shall not be permitted to testify on his own offer,.or upon the call of his co-plaintiff or co-defendant, otherwise than now by law allowed, unless a nominal party merely.” To this rule there are certain exceptions contained in the proviso to the section, which do not apply to this case, and which it is therefore unnecessary to mention. The'first section of the Act of 1864, chap. 109 made competent witnesses of certain classes of persons, who were incompetent under the rules of the common law; and the second section, afterwards amended by the Act of 1868, chap. 116, was adopted for the purpose of excepting from the operation of the very general and sweeping provisions of the first section, all parties to the contract or cause of action when an original party to it was dead, or insane, or when an executor or administrator was a party to the suit. A party to a contract or cause of action is not competent to testify on his own offer, either when an original party to it is dead or insane, or when an executor or administrator is a party to the suit.
After the death of James Wason, the appellant was clearly not a competent witness to testify, on his own offer, as to transactions between them during his lifetime.
The ruling of the Court below was correct, and the judgment appealed from must be affirmed,
Judgment affirmed.