Dellinger's Appeal

The opinion of the court was delivered, by

Agnew, J.

This case falls within the general rule that requires great weight to be given to the report of an auditor when confirmed by the court below. The question of a trust of the money Jacob Dellinger received, through his marriage with his first wife, for her children, depended on the credibility of the witness Jacob Strawbridge. Evidence was given to contradict as well as to corroborate his testimony. In such a case the auditor, who has seen the witnesses, has heard them examined and compared their oral statement, is much more capable of judging of the credibility of the testimony than we can possibly be. Therefore, when his report is confirmed by the court below, we ought not to set it aside except for plain mistake. It is not possible, on the evidence before us, to assert that such plain mistake exists. The trust therefore must be accepted as he has found it to be.

But it is contended that the wife of one of the litigants, and the husband of another, who were examined as witnesses, were incompetent to testify; and as these witnesses were heard in corroboration of Strawbrijge’s testimony, the conclusion of the auditor was drawn in part from an illegal source. The testimony of the litigants themselves was excluded as falling within the second clause of the proviso to the 1st section of the Act of 15th April 1869, which declares that the act shall not apply to actions by or against executors, administrators or guardians. But the witnesses, as wife and husband, had no personal interest in this controversy, and were not parties to it. They were not to be excluded unless they fall within the first clause of the proviso prohibiting a husband or wife from testifying against each other. The witnesses being neither parties nor interested, their exclusion could rest only on the ground of policy. But this policy is removed by the enactment which declares that no policy of law shall exclude a person from being a witness in any civil proceeding, while the exception to the enactment does not embrace a husband and wife called, to testify for each other. The first clause of the proviso, therefore, brings them within the force of the maxim, expressio unius est exclusio alterius. The second clause of the proviso evidently applies to parties or interested persons, and not to those who had at law been excluded from policy alone. The witnesses not being parties to the issue in controversy, and not being interested, were therefore competent.

Appeal dismissed, and decree affirmed with costs.