Butler v. Millett

The opinion of the Court was drawn up by

Kent, J.

The principal question in this case is, whether the affidavit of Charles V. Butler, offered by defendant, was properly excluded. It is clear that it could not be introduced as the testimony of a witness. It has no caption and no certificate, except one of the administration of the oath.

It is urged that it was admissible as the confession of a party. This is a correct proposition, if he was a party whose interests were liable to be affected by his admissions when made. If he was but a nominal party, having no interest in the event of the suit, they were not admissible. Foster v. Fifield, 29 Maine, 138.

In this case, it appears that, prior to the institution of the suit, and prior to the time of giving the affidavit, the plaintiffs had assigned this, with other accounts, to one Tarbox, for a valuable consideration. The plaintiffs had no residuary or remaining interest in the debt.

The question does not turn upon the point whether the admissions related to matters connected with the claim when owned by the nominal plaintiff, but whether the admissions were made when he had such interest, and when it was against his interest to make them.

The deposition of the plaintiff might have been taken by defendant. There is less reason for extending the rule as to admissions made by nominal parties since the law was passed allowing the parties to be admitted as witnesses for or against themselves.

*495There is no valid objection to the admission of the bill of particulars. It has been a long established practice. But it may be questionable ■'whether this leave to file a bill of particulars, authorized any enlargement of the claim. The difference is only sixty-two cents, which plaintiff may remit.

The affidavit being inadmissible, it is very clear that the Judge properly instructed the jury, that the evidence was not sufficient to prove the authority of M. 0. Butler to act as agent, or to show that his acts were legally ratified.

Exceptions overruled.

Upon plaintiffs’ remitting sixty-two cents of the verdict, judgment to he entered on verdict thus diminished.

Tenney, C. J., and Appleton, Cutting, Goodenow, and Davis, JJ., concurred.