Fosgate v. Thompson

Assumpsit, by Sarah W. Fosgate, executrix of Lockhart Fosgate, to recover the sum of seventy-five dollars which the plaintiff alleges was found due from the defendant to the plaintiff’s testate, upon a settlement of their accounts November 13, 1869. The defendant offered himself as a witness to testify to matters which he claimed were not within the knowledge of the plaintiff’s testate, and about which he, if living, could not for that reason testify. But the court refused to permit him to testify, the executrix not having testified; to which ruling the defendant excepted.

In Harvey v. Hilliard, 47 N. H. 551, the plaintiff' was an executor. The defendant offered himself as a witness, and not only claimed that injustice would be done were he excluded, but furnished to the court his own affidavit showing such to be the case, provided the affidavit were believed. The court declined to consider the affidavit, and excluded the witness, and this ruling was sustained. In the present case, the defendant offered himself as a witness to matters which he claimed were not within the knowledge of the testator. This, at the outside, was no more than a claim that injustice would be done were he excluded. So far as the case shows: this claim was not supported by any evidence whatever. The case, therefore, comes far within the doctrine of Harvey v. Hilliard, and the exception

Must be overruled.