Bowie v. Bowie

Robinson, J., delivered the opinion of the Court. The question in this case is a narrow one, and depends entirely upon the construction of the Evidence Act, codified as secs. 1 and 2 of the Code, (Art. 35.) The plaintiff is the administratrix d. b. n. of William J. Bowie, and the defendant is the administrator d. b. n. with the will annexed of William B. Bowie. The suit is brought to recover an indebtedness alleged to be due and owing to William J. Bowie in his life-time, the plaintiff’s intestate, by William B. Bowie, the defendant’s testator; and the sole question is whether the plaintiff administratrix is a competent witness to prove a promise by William B. Bowie to her that he would pay the money claimed to be due, or invest it for the benefit of the son of the plaintiff’s intestate. Now, the Code removes, it is true, the disqualification of witnesses on the ground of interest, and permits the parties to a suit or action themselves to testify; but-the right of parties to testify is subject to certain qualifications which plainly show the spirit and intent of the law.

Thus sec. 2 provides that, “when an original party to a contract or cause of action is dead, * * * or when an. executor or administrator is a party to the suit, * * * either party may he called as a witness by his opponent, but shall not be permitted to testify on his owm offer, or upon the call of his co-plaintiff or co-defendant, otherwise than now by law allowed, unless a nominal party merely, except in case where the party ³¹³ to such suit * * has died after having testified in his own behalf, then the opposite party shall be a competent witness on his own behalf in such case, notwithstanding the executor or administrator of such deceased person, * * * has become a party to such suit, but shall only testify as to matters upon which such deceased person was examined and testified to; provided, that when an executor or administrator is a party to the suit * * * when the cause of action has arisen on a contract made with such executor or administrator, or out of transactions between such executor or administrator, * * * and the other party, or