Murray v. Joyce , 44 Me. 342 ( 1857 )

May, J.

In civil suits by the common law, not only the parties, but all others having a certain and direct interest in the event of the suit, however small, were excluded from testifying. This rigid rule of the common law has been, from time to time, very much relaxed by legislation in this and some other states. So also in England. In this state it has been entirely repealed. Whether such legislation, to the extent to which it has been carried, is wise or unwise, is not a question which we are called upon to determine. At the trial of this case, the respondent was admitted as a witness, against the objection of the complainant, and the question now presented is, whether such admission was authorized by law; and the answer depends wholly upon the construction of our statutes.

By the statute of 1855, ch. 181, all legal objection to the competency of witnesses, arising from interest in the event of the action, was removed in most cases; and it was further provided by the statute of 1856, ch. 266, s. 1, that “no person shall be excused or excluded from being a witness in any civil suit, or proceeding at law or in equity, by reason of his interest in the event of the same, as party, or otherwise,” except as is thereinafter provided. Does this provision, by a true construction, allow the respondent to a process under the Bastardy Act, R. S., ch. 131, to be a witness? Does the language used fairly embrace such a case?

To say nothing of the other phraseology used in the first section of the statute of 1856, the words, “ any civil suit,” must be regarded as embracing such proceedings. In the case of Wilbur v. Crane, 13 Pick. R., 284, where it was contended, under a statute similar to ours, that the proceedings were in some respects in the form of a criminal prosecution, the court say, “ we consider the form of the process immaterial ; the suit is in substance and effect a civil suit, as much so as it would have been, if the remedy provided had been a special action on the case.” In this state also such proceedings have, by judicial construction, been held to fall within the provisions of statutes relating to civil suits. They have all the essential characteristics of such suits. Eaton v. Elliot, 28 Maine R., 436; Mahoney v. Crowley, 36 Maine R., 486; Smith v. Lint, 37 Maine R., 546.

In view of these decisions, it is to be presumed that the legislature intended to include in the language used by them, all such cases as had before been determined by this court to fall within the meaning of the terms they employed.

It was obviously the purpose of this statute to enlarge and not to restrict the sources of evidence in all those cases to which it was intended to apply, by removing the legal restrictions then existing upon the rights of parties to give testimony in their own suits. There was no necessity for such a statute in cases where such right existed before. It applies to suits in which but one party, from the very nature of the case, can be a witness, as where one party is a corporation and the other not. It applies also to cases in which, by the statutes then in force, or by the common law, one party had the right to give testimony, and the other not. This statute was not intended, in any way, to affect such existing rights, but only to confer the right where it did not previously exist. By it, the statutes conferring such rights were not repealed; nor do we think that the preliminary conditions required of the complainant by the statute relating to the maintenance of bastard children, before cited, are removed. If such had been the intention of the legislature in regard to a provision in the statute, so important in its nature to the rights of the respondent, we cannot doubt but that there would have been some direct reference to the fact, or some language used in the repealing statute unequivocally expressive of such intention. While, therefore, the rights of the complainant remain as they were before the passage of this statute, we are fully satisfied that by virtue of the language used in the first section, the respondent is made a competent witness, unless excluded by some of the subsequent provisions of the act. This is not pretended by the able counsel for the complainant.

It is, however, contended, that the provisions of the second section of this statute are of such a nature as to show clearly that the legislature could not have intended that the first section should be applied to either of the parties under the Bastardy Act, because it is said that if it applies to one party, it applies to both, and that such application effectually puts it in the power of the respondent to defeat the whole beneficial operation of that statute. If this were so, it would deserve grave consideration, whether the statute would not bear some reasonable construction that would avoid such effect. Notwithstanding the able and ingenious argument of the counsel for the complainant, we are not satisfied that any such consequences will result. By the construction which we give to the act, they are avoided.

The second section provides, that “parties shall not be witnesses in suits where the cause of action implies an of-fence against the criminal law, on the part of the defendant, unless the defendant shall offer himself as a witness, in which case the plaintiff may also be a witness.”

It is urged, that, by the very terms of this section, if the respondent is admissible as a witness, then the complainant is to be excluded, unless the respondent first offer himself, because the suit by implication charges him with a criminal offence; and it cannot be denied but that a literal construction of the language might have this effect. That the cause of action in proceedings under the Bastardy Act implies an offence against the criminal law, on the part of the defendant, is certain. It equally implies an offence on the part of the complainant. No such prosecution can be sustained without proof of the guilt of both. The language of the statute does not necessarily designate a case where both parties are in fwri delicto as to the offence implied; and there would seem to be no reason in such a case, why the right of one party to elect to be a witness should attach any more to one party than to the other; nor why the right of either party should be made to depend upon the election of the other.

It is also true that the construction of this second section which is contended for, would be a virtual repeal of the Bastardy Act, by putting the maintenance of any prosecution under it wholly at the will of the respondent. Under that statute it has been fully settled, that no prosecution can be sustained unless the party seeking to avail herself of the remedy which it affords, proves all the facts necessary to bring her case within the statute, among which is the fact that the mother accused the putative father, during the pains of parturition, with being the father of the child. If this is not done, the respondent must be acquitted, however strong may be the proof of his guilt. He is entitled to the testimony of the mother, who alone, in ordinary cases, can know with certainty the paternity of her child. Her testimony is, therefore, indispensable to the maintenance of the suit. Loring v. O’Donnell, 12 Maine R., 27; Stiles v. Eastman, 21 Pick. R., 132; Blake v. Jenkins, 34 Maine R., 237. But this consideration, instead of being a reason why the first section of the statute should not be applied to make the respondent a witness, affords a stronger reason why the second section should not be so construed as to prevent the complainant from being a witness, except at the will of the respondent, if any other reasonable construction can be found. We think such reasonable construction sufficiently appears, when wo look at the primary purposes of the act. We are, therefore, brought to the conclusion, that inasmuch as the first section of the statute, notwithstanding its general language, was designed to act only upon parties, who, at the time of its passage, were incompetent to testify in their own suits, the second section can fairly be limited in its application, and ought to be limited, to such parties only as wore made competent witnesses solely by virtue of the first section in the act. Taking the two sections together, the word “ parties,” in the second section, cannot properly be made to include any other. The reasons, therefore, which are urged for the exclusion of the respondent cannot prevail.

Exceptions overruled.

Cutting, J., did not concur.