appears. Where such practice prevails the justice ought not to drive either party to trial, although the other party may be ready with his witnesses, unless a notice has been served by the party ready for trial, upon the other party, that he shall insist upon trial at the return-day of the writ. Such notice should be served a reasonable time before the return day. And in all cases where absent defendants, other parties, or executors, or administrators are to be cited in, the action must be continued. The magistrate has, however, no right to order a continuance prior to the return-day of the writ. And if the action has once been continued, he has no right to order a further continuance, before the day arrives to which the first continuance was made.' 117 Maine, 413. CHAPTER VIII. OF THE COURSE OF THE TRIAL, AND OF WITNESSES. THE procedings which have been thus far considered are preliminary only to the actual trial. Their office is to assist in forming the issue which the parties are to join. When the issue is determined, the parties are ready for trial, and no alteration should be made in it after the trial has commenced. The party assuming the affirmative is to open the case. Ordinarily the plaintiff is the affirming party, and as such, the burden of proof being upon him, he has the opening and closing. It is hardly possible under the present form of pleading, that any exception to this rule can occur before a justice of the peace. And it makes no difference whether the issue be one in law or fact; the rule is the same. The plaintiff having stated his case, and what he expects to prove, next proceeds to call his witnesses, and put in his evidence. The evidence may be of two kinds-written, or parol. In case of written evidence, if it be private writings, he will be prepared with the necessary proof of their execution, which must be put in before they can be admitted; and if it be a deposition, it must be taken in the mode prescribed by law. OF WITNESSES. A treatise upon the various kinds of evidence, and the manner in which each particular issue must or may be proved, cannot be expected within the limits of this book. Its plan will not permit more than an outline view of the subject. 1. All witnesses are competent, unless, 1st. They are parties to the record; 2d. Are interested in the suit; 3d. Are deficient in understanding; 4th. Have been convicted of some infamous offence; or, 5th. Should be exeluded on grounds of public policy. I. The general rule is that a party to the record in a civil suit, cannot be a witness, either for himself, or for a co-suitor in the cause.1 And this rule also extends to the case of members of corporations, parties to the record.2 The only exceptions known in our law to this rule are, 1st. The provision in the revised statutes, that in all suits at law, wherein any county, town, plantation, parish, school district, public corporation, charitable, religious, or literary incorporated society, or any mutual fire insurance company, may be a party, or interested in the event of the suit, any inhabitant or member of any such corporation shall be admitted as a competent witness; provided he has no other interest therein than as such inhabitant or member." 2d. The provision of the Revised Statutes that in case of trustee process, where the trustee in his answer discloses an assignment, and the assignee is summoned in to defend, upon trial, between the attaching creditor and the assignee, the principal defendant may be examined as a witness for either party, if there is no other objection to his competency, except his being a party to the original suit.* 3d. The rule admitting the suppletory oath of a party to original entries. If it shall appear to the court, on the oath of the party offering the books, that it is not the book of original entries of his daily transactions in business; or that it is not free from fraudulent practices; or that the entries were not made at or about the time of the goods delivered, and the services performed; or that the entry was not made for the purpose of charging the debtor with the debt; or that there have been alterations, additions, or erasures since the time of the original entry; or that the articles therein charged were not actually delivered, and the services actually performed; or that the sums charged and claimed have not been paid, then the magistrate will reject the books; as, in order to bring himself within the exception to the general rule, and make himself a witness in his own cause, the plaintiff must strictly comply with the letter of the law." 11 Green. Ev. § 329. 2Ib. § 331, 332, 333. R. S. ch. 115, sec. 75. 4R. S. ch. 119, sec. 39. It is not necessary to establish the opposite of all these propositions, that the evidence may be admitted; but if any one of them should appear in the course of the examination of the plaintiff the evidence must be rejected. The books of a plaintiff, accompanied by his oath, are insufficient to prove a charge for money paid, if the sum charged exceed $6.67.1 If the articles charged appear, from the inspection of the book of accounts, to be such as ordinarily could not have been delivered without the assistance of a third person, the oath of the party will be rejected, on the ground that better proof can probably be had. And, generally, where, from the nature of the case, better evidence can be had, the oath of a party is not allowed." 4th. In any action brought to recover money or goods lost in gaming, if the plaintiff shall offer to make oath, that the money or goods were lost by gaming with the defendant, as alleged in the declaration, judgment shall be rendered for the plaintiff, unless the defendant make oath that he did not obtain the same, or any part thereof, by gaming.1 5th. In actions on contracts, in which is reserved usurious interest, the debtor, or any one of them, if there are two or more, may, if the crcditor be alive, come into court, and swear to the fact of the usurious reservation; whereupon he shall be discharged from the payment of it, unless the creditor, or, if there be two or more, one of them, will swear, that he has not directly or indirectly, wittingly taken or received more than the legal rate of interest." 6 6th. The affidavit of a party as to the loss of a paper, in order to exclude any presumption that he may have it in his possession, or know where it is. The affidavit of a party for the purpose of procuring a continuance of an action, arresting a debtor, of a creditor to his petition to defend a suit in which an attachment has been made prior to that in a suit in which he is plaintiff, is also received.❜ 7th. In actions against common carriers for the loss of baggage by the carrier, the plaintff's oath is allowed to prove the contents of the trunk, or other thing, containing his wearing apparel. The principle, in a case in which there was proof that the trunk had been broken open and rifled of its contents, has been applied to articles other than wearing apparel.' The rule which we have been considering is only, that parties to the record shall not be allowed to testify in their own favor, and shall not be compelled to testify against themselves. If, however, they choose voluntarily to do the latter, it seems they may be allowed so to do, not, however, without the consent of all the parties to the record. When one of several defendants is defaulted, he may be made a witness for the others in torts, but not in action on contracts.3 And in all cases, the party shall not be permitted to have the benefit of his own oath, except where the oath is administered in court. His deposition, therefore, in any of the foregoing cases, cannot avail him.* 11. Akin to the objection that the witness is a party to the record, is the objection that he is interested; and much that has already been said under the former head may be repeated under this. But one may be a party to the record, and yet have no interest in the event of the suit, having a bond of indemnity; and nothing is more common than for persons other than the parties to the record to be interested in the suit. A party to the record can never be a witness, unless he comes within some of the exceptions, while the objection to the admissibility of a witness on the ground of interest may be removed. It must be some legal, certain, and immediate pecuniary interest in the event of the suit, however small. It must be real, and not merely apprehended, or honorary. It may be a direct interest in the result of the suit, or an interest in some subsequent suit, in which the record in this may be used as evidence." In civil suits, interested witnesses may testify in the following cases: 1. When, being otherwise interested, they are made competent by statute. 2. The case of agents, carriers, factors, brokers, or servants, when called to prove acts done for their principals, in the course of their employment. 3. The case of a witness whose interest has been acquired after the party has become entitled to his testimony." 126 Maine,458-1 Maine, 27-1 Green. Ev. 42 Pick. 57. § 348, and note. 2Ib § 354. 31 Green. Ev. § 355, 357. 51 Green. Ev. § 386. Ib. § 411. |