Warner v. Fowler

Le Grand, C. J., delivered the opinion of this court. Waiving all question as to the alleged generality, under the act of 1825, ch. 117, of the several prayers to be found in the record, we are of opinion, that the instruction actually given by the judge of the circuit court was substantially correct, The act of Assembly under which the affirmation was made is one, in this particular, in derogation of the course of the common law, and like all such legislation, is to be construed strictly. See Dyson vs. West's Exc'r, 1 Har. & John., 567. According to the principles of the common law, a party is denied the right of being a witness in his own case; and under our act of Assembly, he is only allowed the privilege if his account does “ not exceed ten pounds, current money, in the course of any whole year," and if it u be proved within twelve months after the first article therein charged shall become due, and not otherwise." The account in this case ought, in our judgment, to show affirmatively on its face a compliance with the requisitions of the act of Assembly. This not being so, there was no right in tire party to make the affirmation, and as a consequence, it was extra-judicicil. In addition to this it should be recollected, that, the 15th section of the act of 1729, [31] ch. 20, is repealed by the 8th section of the act of 1785, ch. 46. Judgment affirmed.