Watts et al., Pet'Rs v. Derry et al.

Petition, for a new highway in the towns of Derry and Londonderry.

In' the Court of Common Pleas, the town of Derry moved that the Report of the Road Commissioners be set aside, because sundry of the petitioners for said highway, that is to say, John Moore, David Gilchrist, J ames M. Gilchrist and Jonathan Savory, being offered as witnesses on the part of the petitioners, and being objected to on the part of the town of Derry, were, nevertheless, admitted by the Road Commissioners to testify in favor of the laying out of said highway.

The petitioners admitted the facts stated in the motion, and contended that the admission of the petitioners as witnesses was legal and proper. And the question was transferred to this Court for decision.

Porter, for Derry.

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.