Alexander v. . Dutcher

Rapallo, J. I can find no provision, excepting a case like the present, from the operation of section 399 of the Code. That section prohibits all parties to .actions from testifying to personal transactions with a deceased person against his executors, etc., and makes no distinction between cases where parties are called as witnesses on their own behalf, or in behalf of a co-defendant, or cases where they • are jointly or severally liable. It might have been reasonable to make such distinctions, but we have no authority thus to supplement the act, which is clear and positive in its terms. The act of 1832 cannot aid the case. It has been superseded by sections 120 and 397 of the Code. There was no evidence on which the' issue of payment could properly have been submitted to the jury. The judgment should be affirmed. All concur. Judgment affirmed.