16 Iowa 305 | Iowa | 1864
I. On the trial before a jury, plaintiff was offered as-a witness to establish the loss of the note, and its date aiid amount. He was allowed to give such testimony to the Court, but not to the jury, to which defendant objected, upon the ground that the adverse party was an executor, and the facts elicited transpired before the death of the promisor, and this is the first matter demanding attention.
' Section 8982 of the Bevision of 1860, which contains the exception to § 3980 (and which exception is relied upon by appellant), was not intended to innovate upon or change the common-law rule, that a party to the record may be allowed to prove facts, which, from their nature, he alone ■would be likely to know. When it is declared by the 'exception, that “ no person (party) shall be allowed to testify; where the adverse party is the-executor of a deceased person, when the facts to be proved transpired before the .death of such deceased person,” it is meant that he cannot be used as a general witness, or as witnesses are generally usqd; and it was not intended to exclude the oath of the party as to the loss of an instrument, such evidence being ■received from necessity and the nature of the subject. (1 Green!., §§ 349, 558, and note 1 to each section.)
■ II. A witness was called and testified to all that he could recollect.of a conversation had with deceased, upon the subject of her indebtedness to plaintiff, but stated that he could not state all that she said. Defendant moved to exclude this testimony, for the reason that witness did not recollect all the conversation. The action of the Court in refusing -to exclude the testimony was clearly correct. (See this question discussed- in Mays v. Deaver, 1 Iowa, 216; and State v. Elliott, 15 Id.)
Entertaining the views above expressed, we need hardly add that the verdict was not against the weight of evidence, and that the motion for a new trial, based upon tbis ground, was properly overruled.
Affirmed.