59 A. 623 | N.H. | 1904
In the original statute removing the common-law disqualification of the parties to actions to testify, the exception was made that when one of the parties was an executor or administrator the adverse party should not be allowed to testify, unless the executor or administrator consented thereto, or testified himself. Laws 1857, c. 1952; Laws 1858, c. 2090. In Moore v. Taylor,
In 1865, the year following the publication of the opinion in Moore v. Taylor, the statute of 1858 was amended by introducing into it substantially the provision now in force, namely: "When it clearly appears to the court that injustice may be done without the testimony of the party in such case, he may be allowed to testify; and the ruling of the court, admitting or rejecting his testimony, may be excepted to and revised." Laws 1865, c. 4074; P. S., c. 224, s. 17. Perley, C. J., in Chandler v. Davis,
In construing the act of 1865, it was held that an election on the part of the executor "to testify for any purpose or to any extent whatever" gave the adverse party a legal right to testify generally. Dow v. Merrill,
The ruling by which the plaintiff was allowed to testify that he had no recollection of receiving any communication from either Drew or Wentworth after the order was accepted was not authorized by the rule, so far as the testimony related to Wentworth. Manifestly, he must have had knowledge upon the subject, and if alive could testify concerning it. But as the case has been presented to the court this evidence appears to have been entirely immaterial upon the issues tried. Nor is there anything in the case tending to show that the evidence was prejudicial to the defendants. No reason has been suggested by them why it would have such effect. Its admission appears to have been an inadvertence, since the prior ruling was in accordance with the law; and the consequent error, appearing to be harmless, furnishes no ground for disturbing the verdict.
The extent to which the rights and equities of Wentworth and Wentworth Drew were protected depended upon the terms of the written order, and was a question of law. The order could not be varied in this respect by parol testimony. The court's ruling on this point was correct.
Exceptions overruled.
All concurred.