Wood v. Gannett

Massachusetts Supreme Judicial Court

Wood v. Gannett

70 Mass. 450

CourtMassachusetts Supreme Judicial Court

DecidedOctober 15, 1855

StatusPublished

This text of 70 Mass. 450 (Wood v. Gannett) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wood v. Gannett, 70 Mass. 450 (Mass. 1855).

Pincite

Opinion

Metcalf, J.

By St. 1839, c. 107, § 2, an administrator, &c., “who may be a party to a suit, having no interest therein except such as arises from his liability for costs and expenses of suit, may be a witness in such suit to any matter known to him before he assumed the trust of his appointment; provided he shall first release his right to recover costs in such suit, or shall receive, or have tendered to him, such security for his liability for costs, as, in the opinion of the court before which the case is pending, shall be sufficient to indemnify him on account thereof.” Undei this statute, the defendant was not a competent witness in this [451]*451suit; she not having released her right to recover costs, nor having received any security, nor tender of security, for her liability for costs. But she was admitted to testify. And the question now is, whether the practice act (St. 1852, c. 312, § 60,) has made her a competent witness without her giving the release or receiving the security required by the previous statute.

The provision in the practice act is, that no person offered as a witness shall be excluded from giving evidence “ by reason of incapacity from crime or interest; but this act shall not render competent any party to a suit or proceeding who is not now by law rendered competent.” When this act was passed, an administrator, party to a suit, was not by law rendered competent as a witness in the suit, unless he should first have given the release, or received, or had tendered to him, the security required by St. 1839, c. 107.' As no party to a suit was, by the practice act, made a competent witness in the suit, who was not previously rendered competent by law, and as no administrator, party to a suit, was previously rendered competent by law, except on certain prescribed terms, we are of opinion that he is not, by that act, rendered competent on any other terms. The law on this point was in no way affected by that act, but was left as it stood before.

Exceptions sustained.

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Metcalf, J.

By St. 1839, c. 107, § 2, an administrator, &c., “who may be a party to a suit, having no interest therein except such as arises from his liability for costs and expenses of suit, may be a witness in such suit to any matter known to him before he assumed the trust of his appointment; provided he shall first release his right to recover costs in such suit, or shall receive, or have tendered to him, such security for his liability for costs, as, in the opinion of the court before which the case is pending, shall be sufficient to indemnify him on account thereof.” Undei this statute, the defendant was not a competent witness in this [451]*451suit; she not having released her right to recover costs, nor having received any security, nor tender of security, for her liability for costs. But she was admitted to testify. And the question now is, whether the practice act (St. 1852, c. 312, § 60,) has made her a competent witness without her giving the release or receiving the security required by the previous statute.

The provision in the practice act is, that no person offered as a witness shall be excluded from giving evidence “ by reason of incapacity from crime or interest; but this act shall not render competent any party to a suit or proceeding who is not now by law rendered competent.” When this act was passed, an administrator, party to a suit, was not by law rendered competent as a witness in the suit, unless he should first have given the release, or received, or had tendered to him, the security required by St. 1839, c. 107.' As no party to a suit was, by the practice act, made a competent witness in the suit, who was not previously rendered competent by law, and as no administrator, party to a suit, was previously rendered competent by law, except on certain prescribed terms, we are of opinion that he is not, by that act, rendered competent on any other terms. The law on this point was in no way affected by that act, but was left as it stood before.

Exceptions sustained.

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Bluebook (online)

70 Mass. 450, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wood-v-gannett-mass-1855.