Miller v. Motter

Grason, J., delivered the opinion of the Court. The cause of action in this case is the joint and several note of the appellee and James Wason, bearing date in 1864, ⁴³² and the suit was instituted in 1869 against Motter alone, "Wason then being dead. The statute of limitations was^ pleaded, and for' the purpose of removing the bar of the statute, the appellant offered himself as a witness to prove that James Wason made a payment on the note in 1867, and, at the time of said payment, endorsed the same on the note in his own hand-writing. The appellant’s competency a sa witness to prove those facts was objected to, the objection was sustained, the ruling of the Court was excepted to, and the judgment being for the defendant, this appeal was taken.

The only question presented is whether the appellant was a competent witness to prove the facts set out in the exception ? Its solution depends upon the construction of the second section of the Act of 1868, chap. 116, which provides that “ when an original party to a contract or cause of action is dead, or shown to be lunatic or insane, or when an executor or administrator is a party to the suit, action or other proceeding, either party may be called as a witness by his opponent, but shall not be permitted to testify on his own offer,.or upon the call of his co-plaintiff or co-defendant, otherwise than now by law allowed, unless a nominal party merely.” To this rule there are certain exceptions contained in the proviso to the section, which do not apply to this case, and which it is therefore unnecessary to mention. The'first section of the Act of 1864, chap. 109 made competent witnesses of certain classes of persons, who were incompetent under the rules of the common law; and the second section, afterwards amended by the Act of 1868, chap. 116, was adopted for the purpose of excepting from the operation of the very general and sweeping provisions of the first section, all parties to the contract or cause of action when an original party to it was dead, or insane, or when an executor or administrator was a party to the suit. A party to a contract or cause of action is not competent to testify on his own offer, either when an original party to it is dead or insane, or when an executor or administrator is a party to the suit. ⁴³³ In the case of Johnson and Wife vs. Heald, Ex’r of Frazier, 33 Md., 368 , this Court has said that “it appears to have been the design of this legislation, in admitting parties to suits to testify at their own instance,