Carlisle v. McNamara

48 Me. 424

Opinion

The opinion of the Court was drawn up by

Appleton, J.

The allegations in the plaintiff’s writ disclose a case of cheating by false pretences, for which, on proof, the defendant would be liable to indictment. State v. Mills, 11 Maine, 211; State v. Philbrick, 31 Maine, 401; State v. Dorr, 33 Maine, 498.

By R. S., 1851, c. 82, § 19, a limitation is imposed in the general admission of parties as witnesses. — “Parties are not to be witnesses in suits when the cause of action implies an offence against the criminal law on the part of the defendant, unless the defendant offers himself as a witness, and, in that case, the plaintiff may be a witness, and such defendant shall be held to waive his privilege of not testifying when his testimony might criminate himself.” Whether “the cause of action implies an offence against the criminal law,” is to be determined by the allegations in the writ. As they Sbt forth an offence against the criminal law, the plaintiff was improperly allowed to testify.

Exceptions sustained and new trial granted.

Tenney, C. J., Rice, Cutting, May, and Kent, JJ., concurred.