Miller v. Motter , 1872 Md. LEXIS 45 ( 1872 )

Grason, J.,

delivered the opinion of the Court.

The cause of action in this case is the joint and several note of the appellee and James Wason, bearing date in 1864, and the suit was instituted in 1869 against Motter alone, "Wason then being dead. The statute of limitations was^ pleaded, and for' the purpose of removing the bar of the statute, the appellant offered himself as a witness to prove that James Wason made a payment on the note in 1867, and, at the time of said payment, endorsed the same on the note in his own hand-writing. The appellant’s competency a sa witness to prove those facts was objected to, the objection was sustained, the ruling of the Court was excepted to, and the judgment being for the defendant, this appeal was taken.

The only question presented is whether the appellant was a competent witness to prove the facts set out in the exception ? Its solution depends upon the construction of the second section of the Act of 1868, chap. 116, which provides that “ when an original party to a contract or cause of action is dead, or shown to be lunatic or insane, or when an executor or administrator is a party to the suit, action or other proceeding, either party may be called as a witness by his opponent, but shall not be permitted to testify on his own offer,.or upon the call of his co-plaintiff or co-defendant, otherwise than now by law allowed, unless a nominal party merely.” To this rule there are certain exceptions contained in the proviso to the section, which do not apply to this case, and which it is therefore unnecessary to mention. The'first section of the Act of 1864, chap. 109 made competent witnesses of certain classes of persons, who were incompetent under the rules of the common law; and the second section, afterwards amended by the Act of 1868, chap. 116, was adopted for the purpose of excepting from the operation of the very general and sweeping provisions of the first section, all parties to the contract or cause of action when an original party to it was dead, or insane, or when an executor or administrator was a party to the suit. A party to a contract or cause of action is not competent to testify on his own offer, either when an original party to it is dead or insane, or when an executor or administrator is a party to the suit.

In the case of Johnson and Wife vs. Heald, Ex’r of Frazier, 33 Md., 368, this Court has said that “it appears to have been the design of this legislation, in admitting parties to suits to testify at their own instance, to provide that they should do so in terms of perfect equality as to knowledge or means of knowledge of the subject-matter of controversy about which they were to speak. It would have been flagrantly unjust to permit a party, whose property was at stake, subjected to all that influence of interest which the infirmity of human nature and the experience of ages had demonstrated to be so powerful as in most cases to shako integrity, and induce a departure from truth, and on which the rule of exclusion in all cases was founded, to go upon the witness stand and tell his story of the transaction, and give his version of the contract against one whose lips were sealed by death or insanity. This obvious rule of justice, mutuality and fairness was not overlooked by the Legislature;” and hence the second section was adopted. The appellant comes directly within the express terms of exclusion under the second section, inasmuch as James Wason, “an original party to the contract or cause of action” sued on, was dead at the time of the trial below. But it was contended that both the appellant and appellee wore parties to the contract, and that as the suit was against the appellee alone, they stood upon an equality and that both of them could testify. But the evidence sought to be introduced by the appellant was of a transaction alleged to have been had with AVason alone, who was then dead, and could not give his version of that transaction, and consequently there would have been none of that “justice, mutuality and fairness,” which the Legislature designed to secure, in permitting the appellant to testify. In addition to this, in the event of a recovery of a judgment against the appellee, he would have had a remedy over against the personal representatives of James AVason, and thus the estate of the latter would have been burdened by means of the testimony of the appellant, when it would have been inadmissible as against the personal representatives of Was on in a suit brought. directly against them upon the same cause of action. To permit this to be done by indirect means, when it could not directly, would be to defeat “justice, mutuality and fairness,” and to violate the spirit and intent of the law.

(Decided 19th March, 1872.)

After the death of James Wason, the appellant was clearly not a competent witness to testify, on his own offer, as to transactions between them during his lifetime.

The ruling of the Court below was correct, and the judgment appealed from must be affirmed,

Judgment affirmed.