Nash v. Reed

The opinion of the Court was delivered by Cutting, J. A question is here presented, involving the construction of R. S., c. 82, § § 78, 83 and 84, which being collated, may be read thus: — “No person shall be excused [174] or excluded from being a witness in any civil suit or proceeding at law, or in equity, (including special proceedings before courts of probate,) by reason of his interest in the event thereof as party or otherwise, except, at the time of trial, the party prosecuting, or the party defending, or any one of them, is an executor or an administrator, or made a party as heir of a deceased party.” On the trial in this Court, the case finds that, “ the appellants offered as a witness, Jacob Nash, and other heirs of the testator, who were appellants and parties; but being objected to for that cause as incompetent witnesses, the Judge decided and ruled that they were inadmissible, and rejected their testimony.” The bill of exceptions does not necessarily present the question raised at the argument, as to whether the appellee can be said to be an executor of a will before its probate and before he has been legally qualified to act, for no such objection was specifically made to the admission of the witnesses, and therefore it may be inferred that the Judge did not rule upon that point. The question then legitimately before us is, whether the witnesses, who were offered and excluded, were made a party as heirs of a deceased party. Before, however, proceeding to the answer, it may be well to ascertain the origin and object of the statute, which has produced so great a change in the common law. The practicability of the statute allowing parties to be witnesses, is not of recent discovery. Nor was the idea originally suggested by Jeremy Bentham, or by any of his modern disciples. As early as 1165, and before Bentham’s matriculation, Sir William Blackstone, speaking of the admissibility of parties as witnesses in Courts of equity and civil law, remarked that, “ It seems to be the height of judicial absurdity, that, in the same cause, between the same parties, in the examination of the same facts, a discovery by the oath of the parties should be permitted on one side of Westminster Hall, and denied on the other; or that the Judges of the one and the same Court [175] should be bound by law to reject a species of evidence, if attempted on a trial at bar, but when sitting the next day as a court of equity, should be obliged to hear such examination read, and to found their decrees upon it. In short, within the same country, governed by the same laws, such a mode of inquiry should be universally admitted or else universally rejected.” This seed, so early sown in England, after a century had nearly expired, first germinated there, and subsequently became an exotic here. But while the statute authorizes the parties to testify, it also places them upon an equality and excludes them both, when one is laboring under certain legal disadvantages. And since, by our declaration of rights, “ no person shall be compelled to furnish or give evidence against himself,” the statute excepts parties, where the cause of action implies an offence against the criminal law on the part of the defendant, unless he offers himself as a witness. And, also, in cases where one of the parties has deceased since the cause of action or proceedings accrued. The above embraces substantially the whole subject-matter of the three sections before cited, which were inserted for the benefit of the defendant, and the legal representatives of a deceased party; for the former, in order to protect his constitutional rights; and, for the latter, because of the decease of their ancestor, whose testimony alone, if living, might control that of his adversary. From the foregoing considerations, if the question was presented, it might not be too presumptuous to remark, that the statute exceptions were never intended to embrace proceedings in relation to the probate of wills. But the question returns, were the appellants made a party as heirs of a deceased party ? In our opinion they were not. The testator never was a party, and could not, in the nature of things, be a party to the present suit; and, unless once a living party, he cannot be said to be a deceased party; — correctively the latter implies the former. That provision, now under consideration, had reference to c. 104, § 16, which provides that no real action shall be abated by the death of [176] either party, after its entry in court, but shall be tried after notice has been duly served upon those interested in his estate. In such case an opportunity is presented for the heirs of a deceased party to become a party, which brings it within the statute exception. We entertain no doubt that Wagner, one of the three subscribing witnesses, was a credible witness, and properly admitted to testify. Hawes v. Humphrey, 9 Pick. 350; Haven v. Hilliard, 23 Pick. 10, cited for the appellee. Exceptions sustained, verdict set aside, and a new trial granted. Tenney, C. J., and Rice, Appleton, May, and Goodenow, J. J., concurred. [This case was argued June Term, 1859.]