Smith v. Wells ( 1899 )

Gordon was a competent witness. He was not a party of record, nor was he a party in interest within the language or intent of the statute (P.S., c. 224, s. 16) excluding the testimony of a party where the adverse party is an administrator, etc., and declines to testify.

To disqualify a person as a witness against an administrator under this statute, it must be shown "that he is the party in interest, — the party who really carries on the controversy, under a party who has no interest in it, and is merely a nominal party, or under one who is fully indemnified." Townsend v. Riley, 46 N.H. 300, 308, 309; English v. Porter, 63 N.H. 206,215. He must be directly interested in the subject-matter of the suit, and have "a right to make defence, or to control the proceedings, and to appeal from the judgment. This right involves also the right to adduce testimony, and to cross-examine the witnesses adduced on the other side. Persons not having these rights are regarded as strangers to the cause." 1 Gr. Ev., s. 523; Carlton v. Patterson, 29 N.H. 580; Wheeler v. Towns, 43 N.H. 56, 57.

Upon the principles of these as well as other authorities, Gordon cannot properly be regarded as a party simply because he is the residuary legatee of the original payee of the note and gave bond to pay her debts and legacies. His indirect and contingent liability, if any, to pay the note, gave him no right to make defence to the pending suit, "to control the proceedings, to appeal from the judgment, or to take exceptions to the rulings of the court, produce testimony or cross-examine witnesses," nor make him liable for costs. Wheeler v. Towns, supra. At most, the objection to his testimony goes to its weight merely. Nor do we perceive any objection to that part of it which was admitted subject to special exception.

The plaintiff's exception to the admission of the defendant's plea of the statute of limitations is overruled. Its allowance was not erroneous as matter of law; and whether justice required it, was a question of fact upon which nothing appears tending to show that the referee's discretion was not properly exercised.

The motion for a nonsuit should have been granted. While the note itself afforded prima facie evidence of consideration, and while there was also evidence tending to show that the deceased made a payment to be applied upon it, there was no evidence whatever that the payment was made or indorsed within six years next before the commencement of proceedings for collection of the note, unless the indorsement might of itself be considered by the referee as competent evidence of the true date thereof, and sufficient, in the absence of evidence to the contrary, to take the case out of the operation of the statute of limitations. But it is well settled that he could not properly give such effect to the indorsement. Standing alone, as it did, and in the handwriting of the plaintiff, it was not evidence that any payment was made at the time of its date. Marshall v. Daniels, 18 N.H. 364, 365; Wheeler v. Robinson, 50 N.H. 303, 304, 305; Clough v. McDaniel, 58 N.H. 201. Both in principle and upon authority, a party cannot be permitted to put in evidence his declarations or writings in his own favor when such declarations or writings may have been made for the very purpose of creating the evidence.

The questions propounded to the plaintiff by his counsel were properly excluded.

As the case now stands, there must be

Judgment on the report for the defendant.,

All concurred.