Trahern ex rel. Trahern v. Colburn

Miller, J., delivered the opinion of the Court. This was an action of assumpsit brought in March, 1881, "by Mrs. Trahern, a married woman, by her husband and next friend, James F. Trahern, against the executor of Sophia E. Stimpson, deceased, to recover a considerable ■amount of money, alleged to he due and owing to the plaintiff by the deceased in her life-time. The declaration contains the common counts, and on demand a bill of particulars was furnished setting out the several items of •claim aggregating $10,653.40. The case was tried upon issues made up under the pleas of non assumpsit, limitations and plene administravit.

At the trial a single exception was taken. The plaintiff •offered to prove by her husband and prochein ami the several items stated in the hill of particulars, and this offer is set out at length in the exception. The defendant objected to the competency of the witness to testify, “and to the facts set forth in said offer.’' The Court sustained this objection, and to this ruling the plaintiff excepted. The objection to the competency of. the witness is founded on that clause of our Evidence Act which makes ■an exception to its general provisions, and declares that where an original party to a contract or cause of action is dead, or where an executor or administrator is a party to the suit, neither party shall he admitted to testify on his own offer or upon the call of his co-complainant or co-defendant otherwise than now by law allowed, unless a nominal party merely.

We are of opinion a prochein ami is not a party to the suit within the meaning of this clause. It is true he is responsible for costs, and competent to make a suggestion for the removal of the cause, hut he is not a party to the suit in the technical sense of the term. ¹⁰⁴ In contemplation of law he is considered an officer of the Court specially appointed by it to look after the interests, of the party in whose behalf he acts, (though according to our practice no actual order making the appointment is-ever passed), and it is competent for the Court to revoke his authority and remove him, and, if necessary, appoint another in his place. Deford vs. State, use of Keyser, et al., 30 Md., 179 ; Balto. & Ohio R. R. Co. vs. Fitzpatrick, 36 Md., 619 . In the English Evidence Act, (6 and 7 Vict. ch. 85,) which, like our statute removes the incapacity of witnesses on the ground of interest, there is a proviso,. “ that this Act shall not render competent any party to. any suit, action, or proceeding, individually named in the record,” and the case of Sinclair vs. Sinclair, 13 Mees. & Wels., 640, which was an action of assumpsit by an infant who sued by his next friend and father, the question was. directly presented, whether the prochein ami was competent to testify for the plaintiff, and the Court held that he could not be considered a party to the suit, and was competent to testify, the Act having removed all objection to-his' competency on the ground of interest in respect to his-liability to costs, or any other liability that may attach to him as being the prochein ami in the suit.

But it has. been ingeniously argued that the offer is, among other things, to show by this witness that he was the agent of the deceased in disbursing the several sums of money claimed in the bill of particulars, and that, as she is now dead, it is not competent for him to prove the contract of agency between them. But in answer to this argument it is sufficient to say, that the contract of agency as between the witness and the deceased