44 Me. 342 | Me. | 1857
In civil suits by the common law, not only the parties, but all others having a certain and direct interest in the event of the suit, however small, were excluded from testifying. This rigid rule of the common law has been, from time to time, very much relaxed by legislation in this and some other states. So also in England. In this state it has been entirely repealed. Whether such legislation, to the extent to which it has been carried, is wise or unwise, is not
By the statute of 1855, ch. 181, all legal objection to the competency of witnesses, arising from interest in the event of the action, was removed in most cases; and it was further provided by the statute of 1856, ch. 266, s. 1, that “no person shall be excused or excluded from being a witness in any civil suit, or proceeding at law or in equity, by reason of his interest in the event of the same, as party, or otherwise,” except as is thereinafter provided. Does this provision, by a true construction, allow the respondent to a process under the Bastardy Act, R. S., ch. 131, to be a witness? Does the language used fairly embrace such a case?
To say nothing of the other phraseology used in the first section of the statute of 1856, the words, “ any civil suit,” must be regarded as embracing such proceedings. In the case of Wilbur v. Crane, 13 Pick. R., 284, where it was contended, under a statute similar to ours, that the proceedings were in some respects in the form of a criminal prosecution, the court say, “ we consider the form of the process immaterial ; the suit is in substance and effect a civil suit, as much so as it would have been, if the remedy provided had been a special action on the case.” In this state also such proceedings have, by judicial construction, been held to fall within the provisions of statutes relating to civil suits. They have all the essential characteristics of such suits. Eaton v. Elliot, 28 Maine R., 436; Mahoney v. Crowley, 36 Maine R., 486; Smith v. Lint, 37 Maine R., 546.
In view of these decisions, it is to be presumed that the legislature intended to include in the language used by them, all such cases as had before been determined by this court to fall within the meaning of the terms they employed.
It was obviously the purpose of this statute to enlarge
It is, however, contended, that the provisions of the second section of this statute are of such a nature as to show clearly that the legislature could not have intended that the first section should be applied to either of the parties under the Bastardy Act, because it is said that if it applies to one party, it applies to both, and that such application effectually puts it in the power of the respondent to defeat the whole beneficial operation of that statute. If this were so, it would deserve grave consideration, whether the statute would not
The second section provides, that “parties shall not be witnesses in suits where the cause of action implies an of-fence against the criminal law, on the part of the defendant, unless the defendant shall offer himself as a witness, in which case the plaintiff may also be a witness.”
It is urged, that, by the very terms of this section, if the respondent is admissible as a witness, then the complainant is to be excluded, unless the respondent first offer himself, because the suit by implication charges him with a criminal offence; and it cannot be denied but that a literal construction of the language might have this effect. That the cause of action in proceedings under the Bastardy Act implies an offence against the criminal law, on the part of the defendant, is certain. It equally implies an offence on the part of the complainant. No such prosecution can be sustained without proof of the guilt of both. The language of the statute does not necessarily designate a case where both parties are in fwri delicto as to the offence implied; and there would seem to be no reason in such a case, why the right of one party to elect to be a witness should attach any more to one party than to the other; nor why the right of either party should be made to depend upon the election of the other.
It is also true that the construction of this second section which is contended for, would be a virtual repeal of the Bastardy Act, by putting the maintenance of any prosecution under it wholly at the will of the respondent. Under that statute it has been fully settled, that no prosecution can be sustained unless the party seeking to avail herself of the remedy which it affords, proves all the facts necessary to bring her case within the statute, among which is the fact that the mother accused the putative father, during the pains
Exceptions overruled.