Pattison v. Armstrong

The opinion of the court was delivered, January 5th 1874, by

Merour, J. —

The first assignment of error is to the rejection of the plaintiff as a witness. The offer was to prove a contract made between the plaintiff and one J. B.,McGuier, in relation to the land in controversy. The exclusion of the plaintiff is put upon the ground that McGuier sold the land to Martin Armstrong, who has since died, and the defendants claim under him: that Armstrong being dead, the plaintiff is thereby made incompetent by the proviso to the first section of the Act of 15th April 1869. That section declares: “No interest nor policy of law shall exclude a party or person from being a witness in any civil proceeding.” The proviso thereto, inter alia, declares that the act shall not apply to actions “ where the assignor of the thing or contract in action may be dead.” This evidently means where one of the parties to the particular contract or thing sought to be proved, is dead, .the survivor shall not be permitted to testify in regard to it. Hence, if the offer was to prove a contract between the plaintiff and Armstrong, undoubtedly the plaintiff would be incompetent for that purpose. As death, in that case, would have closed the mouth of one of the parties to the contract, the law will close the mouth of the other, when he is a party to the record. The rejected offer, however, 'was to prove a contract between parties both of whom are now living. The question does not arise under circumstances in which the lips of one party to the contract in question is closed, but when his lips have been opened and he has actually testified in behalf of the defendants.' That it is the inability to testify by one to the transaction that excludes the other, is clearly recognised in Karns et al. v. Tanner, 16 P. F. Smith 297. It is there said by Mr. Justice Agnew: “ The true spirit of the proviso, then, seems to be that when a party to a thing or contract in action is dead, and his rights have passed, either by his own act or by that of the law to another, who represents his interest in the subject of controversy, the surviving party to that subject shall not testify to matters occurring in the lifetime of the adverse party, whose lips are now sealed.” We think the death of a subsequent and intervening purchaser, who was not a party to the contract, is insufficient to exclude either of the parties thereto while they are both living. The learned judge, therefore, erred in refusing to permit the plaintiff to testify, and the first assignment is sustained.

As the case goes back for another trial, in which additional evidence may be given, and the second assignment is predicated of the whole evidence, we deem it > unnecessary to discuss that now."

Judgment reversed, and a venire facias die novo awarded.