Miller v. Adkins

The stipulation and the statement of the deceased were put in evidence by the defendant, in order to create the opportunity for the latter to offer himself as a witness in his own behalf, as to personal transactions and communications between them. I do not think this course of procedure was in contemplation of the parties when they entered into the stipulation, nor do I think it authorized under the fair reading of the stipulation. The stipulation bore directly upon the force and effect of the statement as evidence, whichever party should see fit to put it in on the trial. This would not bar the right to insist that the other party should be excluded under section 399 of the Code, because of the death of the party. The right to such objection was not stipulated away. The question is, then, whether the prohibition contained in section 399 of *12the Code would exclude the defendant from testifying in his own behalf. The clause alluded to provides that the prohibition declared in section 399 shall not extend to any transaction or communications, “ as to which the testimony of such deceased person * * * shall be given in evidence.” Given in evidence bj whom? By the adverse party. Such is its very obvious meaning. This clause was not intended to help a party to the record to give evidence in his own behalf, except in answer to the testimony of a deceased person, when put in against him. The evidence offered by the defendant in his own behalf, as to personal transactions and communications between himself and the deceased, was properly excluded. -It appears that all the excluded evidence offered belonged to that class. ‘ The ruling of the learned referee was therefore correct. The record discloses no error calling for a reversal of the judgment.

Judgment affirmed, with costs.

Ordered accordingly.