White v. Brown

67 Me. 196 | Me. | 1877

Appleton, C. J.

The ruling of the presiding justice is clearly correct. The defendant was an administrator and did not testify. The plaintiff was not a witness under any of the provisions of R. S., c. 82 unless he could bring himself within the exceptions enumerated in § 87. It was for him to do it. The general rule is the exclusion of a party, whose opponent is an executor or administrator. The exception must be shown to exist, else the general rule obtains.

For the same reason, the plaintiff does not bring his claim to testify, within c. 145, of the acts of 1873.

By R. S., c. 66, § 5, claims against an insolvent estate must be supported by affidavit. The commissioners, before whom the claim is presented for allowance, “may require a claimant to be sworn, and may examine him on all matters relating to his claim.” He is only sworn at the requirement of the commissioners, never at his own instance.

By c. 66, § 15, an appeal may be taken. By § 15, “on trial before the court or referees, the creditor may be examined on oath, as before commissioners, and with the like effect if he refuses to be examined ;” that is, that his claim will be rejected as provided by | 6, in case of such refusal.

The plaintiff was not a witness at his own instance before commissioners. He was to be examined only when required by them and the examination was to be by them. The same limitation holds on the trial before the court or a reference, Morse v. Page, 25 Maine, 496. Gould v. Carlton, 55 Maine, 511, 514.

Exceptions overruled.

Walton, Barrows, Virgin, Peters and Libbey, JJ., concurred.