Legal Opinion

Cochran v. Langmaid

Supreme Court of New Hampshire

Decided June 5, 1881PublishedCited by 2 opinions

Assumpsit, to recover certain notes. Plea, the general issue* with a set-off. Pacts found by a referee. The defendant offered his own testimony. The plaintiff, who is an administrator, did not elect to testify, and, it not appearing that injustice would be done without the testimony of the defendant, he was not allowed to testify, and the defendant excepted.

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Assumpsit, to recover certain notes. Plea, the general issue* with a set-off. Pacts found by a referee. The defendant offered his own testimony. The plaintiff, who is an administrator, did not elect to testify, and, it not appearing that injustice would be done without the testimony of the defendant, he was not allowed to testify, and the defendant excepted. All the matters to which he proposed to testify related to transactions occurring in the lifetime of the deceased, and it did not appear that the deceased could not testify to the same matters, if alive.

1Opinion of the CourtClark, J.

A party may be allowed to testify, although his ■adversary is an executor or administrator, when it clearly appears to the court that injustice may be done without his testimony. Gr. L., e. 228, s. 17. But the injustice must appear from other evidence than the testimony of the party himself. Harvey v. Hilliard, 47 N. H. 551; Fosgate v. Thompson, 54 N. H. 455. In determining whether a party should be admitted to testify when the adverse party is an executor or administrator, in ordinary cases the safe guide and decisive test are found in the inquiry whether the deceased, if alive, could…

2Cited by2 opinions

  1. Parsons v. WentworthSupreme Court of New Hampshire · 1904
  2. Sheehan v. HennesseySupreme Court of New Hampshire · 1889

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