Gould v. Carlton , 55 Me. 511 ( 1868 )

Danforti-i, J.

On appeals from the decision of commissioners of insolvent estates, the statutes provide what shall be the form of the action to be commenced, and that, on the trial of such action, the creditor may be examined on oath. R. S., c. 66, §§ 13 & 15. In all other respects, the course of proceedings and the principles upon which testimony is to be received or rejected, are the same as those applicable to ordinary actions at law. The statute gives no cause of action where none exists without it. In the case at bar, the notes were not indorsed by the payee, nor was there any proof of a promise by the maker to pay either of them to the plaintiff. In the absence of any statutory provision, we are aware of no principle of law by which such notes are, or ought to be sufficient to maintain the action. As the presiding Justice ruled otherwise, the exceptions upon this point must be sustained.

The plaintiff was admitted to testify generally; the defendant not having been offered as a witness. The statute provides that "the creditor may be examined on oath,” &c. This does not give him the privilege of testifying in his own behalf as matter of right, but leaves it discretionary with the Court to require him to do so, on motion of the defendant, when the discovery of the truth seems to make it necessary. Morse v. Page, 25 Maine, 496; Moore v. Taylor, 44 N. H., 370.

In other respects we see no objections to the ruling of the Court. . Exceptions sustained.

New trial granted.

Appleton, C. J., Cutting, Dickerson and Barrows, JJ., concurred. Walton and Tapley, JJ., concurred in the opinion, except that portion of it which pertains to the maintenance of the action upon the notes.