EosteR, J.
The law provides that any creditor, dissatisfied with the report of the commissioner of insolvency to whom his claim has been submitted, may appeal therefrom by petition to the judge of probate; and that he shall file with his petition “ a declaration, in proper form, upon his claim.” A copy of the petition and declaration is required to be served upon the administrator, and the creditor must “ enter his action at the nest trial term of the supreme court, and produce attested copies of the petition, declaration, and order of notice.” Gen. Stats., ch. 181, secs. 1, 2.
It appears from the case that the appeal and declaration were in proper form, and there is no suggestion that any requirement of the statute was not complied with; but the defendant insists that the report of the commissioner should have been produced upon the trial, before the plaintiff could be allowed to proceed with his evidence, and that, without the production of such report, it is not apparent that the court had jurisdiction of the cause.
But the jurisdiction is conferred by the statute above referred to, which does not require the report, but only copies of the petition, declaration, an'd order of notice, with evidence of the compliance with such order, to be filed.
And the report is not, like the report of an auditor, made evidence, by statute, in the trial.
[91] The petition sets forth the substance and the amount of the creditor’s claim, and states whether it was entirely disallowed, or allowed in part, and so furnishes all the information which would be provided by the commissioner’s report.
The declaration contains a specification of the creditor’s claim.
The report was not evidence for the jury. It ought to be excluded ; for it could have no other effect than to prejudice the plaintiff, by showing that another tribunal, upon evidence with which the jury have nothing to do, and of which they have no knowledge, have rejected the plaintiff’s claim.
The declaration, like the declaration in an original suit, counts upon the promise of the deceased, and nothing else; and the plea of the general issue traverses nothing but such promise.
The effect of the appeal is to suspend the judgment below-. The appeal is a continuation of the original suit, for the purpose of obtaining, in the appellate court, a new trial and a new judgment. It is analogous in its effect to an award of a new trial, by which the previous verdict is entirely set aside, and the case is to be heard anew, like an original action, and as if no judgment had been pronounced or rendered in the court below. Hilliard on New Trials 587, and note a, 593-595; Wallace v. Brown, 25 N. H. 216; Bixby v. Harris, 26 N. H. 128; Stalbird v. Beattie, 36 N. H. 456.
Moreover, the. defendant’s objection, if it were ever available, comes too late. The appeal alleges the appointment of the commissioner, the exhibition of the creditor’s claim, its disallowance, a report by the commissioner, and its acceptance by the probate court.
Any objection for want of regularity in these essentials should be made by plea in abatement, or motion to dismiss or quash; or, perhaps, by a rule against the judge of probate or the commissioner, to send up a corrected transcript of the proceedings. And such plea or motion must be made without delay. Hilliard on New Trials 597-610; State v. White, 41 N. H. 194.
' - II. In this State the wife may testify for or against the husband in any case, when it appears to the court that her examination as a witness upon the points to which her testimony is offered would not lead to a violation of marital confidence.
Mrs. Cook being sworn as a witness, without objection, was permitted, subject to the defendants’ exception, to testify to conversations between herself and the child’s guardian, in the absence of her husband, tending to prove a promise on the part of the guardian to pay for-the child’s board.
If such testimony were offered as the substantive and only proof of a contract, it should certainly be received, if at all, with great caution and hesitation; for it would seem to lead, upon cross-examination of the witness, to an inquiry concerning her communications with her husband on the subject; — the material question being whether the promise of the guardian was made to the husband through the agency of his wife; or, perhaps, whether through her communications to him, the [92] plaintiff and the guardian were brought to tliat mutual and similar understanding essential to the implication of a promise, in tlie absence of an express contract.
We are not disposed to relax the wholesome guards which the common law has imposed for the protection of the sanctity of marital confidence, and we are inclined to think the safer rule would be to reject altogether evidence of any conversation whatever between husband and wife in the absence of third parties.
But, whether wisely or not, the legislature has given the court unlimited discretion with regard to the acceptance or rejection of the evidence in a case like this. The wife may testify, says the statute, “in any case, when it a/ppears to the court” that her examination would not lead to a violation of marital confidence. Gen. Stats., ch. 209, sec. 22 ; * Laws of 1870, ch. 20. The court has the same discretion as in cases of the admissibility of leading questions, and as concerning the qualifications of a witness offered as an expert. See Bundy v. Hyde, 50 N. H. 116; Dole v. Johnson, 50 N. H. 452.
It does not appear that the discretion of the court was imprudently exercised in the present case. The testimony of Mrs. Cook was, clearly, not the substantive and essential proof upon which a contract [93] was based. And it does not appear from the case, nor is it at all essential to the relevancy or tlie materiality of the evidence, that the declarations of the guardian to Mrs. Cook should be reported to the husband at all.
Under the clear and unexceptionable instructions of the court as to the understanding of both parties being essential to the existence of a contract (see Delano v. Goodwin, 48 N. H. 206), the evidence was competent and material, not as being the promise and the act of a party in making the contract, but as the admission and confession of one party as to his understanding of the matter.
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EosteR, J.
The law provides that any creditor, dissatisfied with the report of the commissioner of insolvency to whom his claim has been submitted, may appeal therefrom by petition to the judge of probate; and that he shall file with his petition “ a declaration, in proper form, upon his claim.” A copy of the petition and declaration is required to be served upon the administrator, and the creditor must “ enter his action at the nest trial term of the supreme court, and produce attested copies of the petition, declaration, and order of notice.” Gen. Stats., ch. 181, secs. 1, 2.
It appears from the case that the appeal and declaration were in proper form, and there is no suggestion that any requirement of the statute was not complied with; but the defendant insists that the report of the commissioner should have been produced upon the trial, before the plaintiff could be allowed to proceed with his evidence, and that, without the production of such report, it is not apparent that the court had jurisdiction of the cause.
But the jurisdiction is conferred by the statute above referred to, which does not require the report, but only copies of the petition, declaration, an'd order of notice, with evidence of the compliance with such order, to be filed.
And the report is not, like the report of an auditor, made evidence, by statute, in the trial.
[91] The petition sets forth the substance and the amount of the creditor’s claim, and states whether it was entirely disallowed, or allowed in part, and so furnishes all the information which would be provided by the commissioner’s report.
The declaration contains a specification of the creditor’s claim.
The report was not evidence for the jury. It ought to be excluded ; for it could have no other effect than to prejudice the plaintiff, by showing that another tribunal, upon evidence with which the jury have nothing to do, and of which they have no knowledge, have rejected the plaintiff’s claim.
The declaration, like the declaration in an original suit, counts upon the promise of the deceased, and nothing else; and the plea of the general issue traverses nothing but such promise.
The effect of the appeal is to suspend the judgment below-. The appeal is a continuation of the original suit, for the purpose of obtaining, in the appellate court, a new trial and a new judgment. It is analogous in its effect to an award of a new trial, by which the previous verdict is entirely set aside, and the case is to be heard anew, like an original action, and as if no judgment had been pronounced or rendered in the court below. Hilliard on New Trials 587, and note a, 593-595; Wallace v. Brown, 25 N. H. 216; Bixby v. Harris, 26 N. H. 128; Stalbird v. Beattie, 36 N. H. 456.
Moreover, the. defendant’s objection, if it were ever available, comes too late. The appeal alleges the appointment of the commissioner, the exhibition of the creditor’s claim, its disallowance, a report by the commissioner, and its acceptance by the probate court.
Any objection for want of regularity in these essentials should be made by plea in abatement, or motion to dismiss or quash; or, perhaps, by a rule against the judge of probate or the commissioner, to send up a corrected transcript of the proceedings. And such plea or motion must be made without delay. Hilliard on New Trials 597-610; State v. White, 41 N. H. 194.
' - II. In this State the wife may testify for or against the husband in any case, when it appears to the court that her examination as a witness upon the points to which her testimony is offered would not lead to a violation of marital confidence.
Mrs. Cook being sworn as a witness, without objection, was permitted, subject to the defendants’ exception, to testify to conversations between herself and the child’s guardian, in the absence of her husband, tending to prove a promise on the part of the guardian to pay for-the child’s board.
If such testimony were offered as the substantive and only proof of a contract, it should certainly be received, if at all, with great caution and hesitation; for it would seem to lead, upon cross-examination of the witness, to an inquiry concerning her communications with her husband on the subject; — the material question being whether the promise of the guardian was made to the husband through the agency of his wife; or, perhaps, whether through her communications to him, the [92] plaintiff and the guardian were brought to tliat mutual and similar understanding essential to the implication of a promise, in tlie absence of an express contract.
We are not disposed to relax the wholesome guards which the common law has imposed for the protection of the sanctity of marital confidence, and we are inclined to think the safer rule would be to reject altogether evidence of any conversation whatever between husband and wife in the absence of third parties.
But, whether wisely or not, the legislature has given the court unlimited discretion with regard to the acceptance or rejection of the evidence in a case like this. The wife may testify, says the statute, “in any case, when it a/ppears to the court” that her examination would not lead to a violation of marital confidence. Gen. Stats., ch. 209, sec. 22 ; * Laws of 1870, ch. 20. The court has the same discretion as in cases of the admissibility of leading questions, and as concerning the qualifications of a witness offered as an expert. See Bundy v. Hyde, 50 N. H. 116; Dole v. Johnson, 50 N. H. 452.
It does not appear that the discretion of the court was imprudently exercised in the present case. The testimony of Mrs. Cook was, clearly, not the substantive and essential proof upon which a contract [93] was based. And it does not appear from the case, nor is it at all essential to the relevancy or tlie materiality of the evidence, that the declarations of the guardian to Mrs. Cook should be reported to the husband at all.
Under the clear and unexceptionable instructions of the court as to the understanding of both parties being essential to the existence of a contract (see Delano v. Goodwin, 48 N. H. 206), the evidence was competent and material, not as being the promise and the act of a party in making the contract, but as the admission and confession of one party as to his understanding of the matter.
It must be quite clear that a promise to pay, if under certain circumstances such promise would not be admissible as evidence of a special contract, may, nevertheless, be received as an admission of liability, or, at any rate, as showing the understanding of the party uttering the declaration called a promise. The form of the declaration cannot determine the competency of the evidence, if, upon the whole, it contains anything from which the jury may be at liberty to find the understanding of the party. And “ although the issue on trial is whether there has been a concurrence in understanding-of two parties, yet it is not improper to prove separately the understanding of each. It is no objection to a single piece of evidence that it does not make out the whole of the plaintiff’s case. In proving a concurrence of understandings, the plaintiff may prove his own understanding by .one witness, and the defendant’s understanding by another witness.” Blake v. White, 13 N. H. 272; Hale v. Taylor, 45 N. H. 407; Delano v. Goodwin, 48 N. H. 206.
Without violation of marital confidence, it would seem that the wife might testify as to a contract made directly with her, in her husband’s absence (so it is provided by statute in Massachusetts; and our statute is more general and liberal); and the jury might be at liberty to find a special contract, by the defendant with the plaintiff, through the agency of his wife; or, the promise to the wife may be regarded only as an admission of liability. Then, if the husband knew that the board was furnished in such a manner as to imply a contract to pay, in case there had been no express contract, he was also a competent witness to testify what he knew. He could not be required to elect whether he will rely on an express or an implied contract. He has a right to put in all the competent evidence he can produce, bearing in either direction. Packard v. Reynolds, 100 Mass. 155.
III. The testimony of Dr. Elkins was competent as tending to show that the guardian held property of his ward with which to pay for medical services, and as illustrating the conduct of the guardian with regard to the maintenance of the child. It is undoubtedly true, as the defendant’ claims, that the fact that the guardian made one special contract, does not prove that he made another; but we think the evidence was competent, whatever weight it might have with the jury, upon the question of the probability whether the guardian, who recognized his liability to pay for his -ward’s medical necessaries, did not [94] also consider himsélf liable to pay for her board. See Delano v. Goodwin, before cited.
IV. It was the duty of the guardian to apply the income of his ward’s property, and even the principal, if necessary (under advice of the court, perhaps, first obtained), to supply the absolute necessities of his ward. Fiske v. Lincoln, 19 Pick. 476; Clark v. Clark, 8 Paige Ch. 152; Hutchinson v. Hutchinson, 19 Vt. 437; Schoul. Dom. Rel. 455.
It was competent and material to show that he held property of the ward sufficient to enable him to supply her wants, for such fact would tend strongly to show and to support the probability that he agreed to pay for her board.
Upon this, as upon all the other points raised by the defendant, we are of the opinion that the rulings of the court were correct, and the instructions to the jury unexceptionable.
Judgment on the verdict.