Watts v. Derry

22 N.H. 498

• Court: Superior Court of New Hampshire
• Decided: July 15, 1851
• Status: Published

Opinion

Dell, J.

A party to an action cannot be a witness at common law, with few exceptions founded on particular reasons. This general rule is equally applicable, in cases of proceedings under statutes, as in abtions at common law.

It has not been unusual, that petitioners and others interested in laying out new highways have been sworn before the Road Commissioners and Road Committees. This has probably been done, in most eases, by consent, since we are unable to recall any express decision of this Court, or any deliberate and well-considered ruling in the Court of Common Pleas on the subject. The practice, then, however general, cannot be considered as resting on the ground of decisions, and the Court are bound to consider the question upon the general principles of the common law. Upon those principles, the evidence must be held illegal and inadmissible, if objected to. But such objection must be made at the time the witness is offered; and if it is not then taken, it will be held to be waived, and will not be regarded at any after stage of the proceedings.

It has been held in this Court, that petitioners, though they may have been sworn as witnesses,' cannot be taxed or allowed the fees of witnesses.

Report set aside.