Weed v. Bishop

Daggett, J. It is understood that the judge at the circuit ruled both the points in the case in favour of the plaintiff. As the question whether such a clause in a will can revive a debt, against which the statute of limitations has run, is to be raised, and argued, and definitively settled, in the case of Peck v. Botsford, (a), to be decided this term, I forbear now to express an opinion upon it, especially as the other point arising on this record is sufficient, in my opinion, to reverse the judgment. That point only, therefore, will be considered. Is the plaintiff in an action of debt by book a competent witness to prove an acknowledgment and promise to take a debt out of the statute of limitations ? The judgment is attempted to be vindicated, on the ground that the statute on this subject, in general terms, authorized the admission of the evidence of the parties and of other persons interested. In construing this statute, it is to be borne in mind, that so far as the parties are permitted to testify at all, it is a departure from a plain rule of the common law, — that no person shall be a witness in his own cause. In the construction of this statute, thus adopting a principle repugnant to the general rule of the common law, it has never been judged before, that a party was a competent witness to any fact which might come under examination. This exception to the general rule has been construed with some limitation, according to maxims applicable to statutes in derogation of the common law. It is true, no precise rule as to the extent to which a party may testify, has been established ; but there is no authority for saying that he is an unlimited witness. In Phenix v. Prindle, Kirby 209. a very great judge expresses the following opinion on the point how far the testimony of a party might be received in the action of debt by book: — “ Regularly, it goes no farther than to the quantity, quality, and delivery of the articles charged.” Were this a new question, perhaps such a limitation might be well adopted, as comporting with the necessity for the departure from the common law; but it is not to be concealed, that a more extended construction has been given to the statute. In the late case of Bryan v. Jackson, 4 Conn. Rep. 288. the court went as far in allowing the testimony of the party, as in any former case reported. It is understood, that some general expressions in the opinion of the Chief Justice, have been pressed into an authority for making the party an unlimited (a) Vide post. [132] witness. The opinion warrants no such conclusion. On the contrary, it is limited thus : “ Where proper articles are charged on book, the parties, quoad the book debt, are admissible, like all other witnesses, to testify freely and fully, in support or confutation of the account.” It would be doing violence to the language employed, to say, that it is hence to be implied, that a party may testify on an issue formed on a release or tender pleaded; nor within the knowedge of the court has such a principle ever been recognized. Testimony on such issues, surely, is not “ quoad the book debt,” nor in “ support or confutation of the account ” The testimony in this cause was not in support of the book debt, but to do away the effect of a beneficial statute, positively declaring it barred. The evidence, then, was illegal; it might have influenced the auditors to allow the charge; and therefore, the judgment is erroneous. Hosmer, Ch. J. was of the same opinion. Lanman, J., dissented ; thinking, that the statute had made the party a witness, and that it was not competent to the court to exclude him. Brainarb and Peters, Js., having been absent when the case was argued, gave no opinion. Judgment reversed.