The court are of opinion that the ruling admitting evidence of the trouble and difficulty which other persons besides the plaintiff met with, in going over the passage-way adjacent to that which was obstructed by the defendants, was erroneous. These several occurrences raised collateral issues, and the well established rules of evidence exclude them, for the reason that the opposite party has no notice as to them, and cannot be prepared to try them, and also that the introduction of such matter would render judicial trials interminable. To allow them to affect the question of damages is further objectionable because it might enable the plaintiff to recover damages for what occurred to strangers.
.2. The question was properly left to the jury to decide, where the way existed upon the triangular piece of land; for it was a question of fact.
3. The defendants have no cause of exception to the rulings respecting tue testimony of the several defendants. It was erroneous to admit their testimony in the case, the original plaintiff having deceased, and the present plaintiff being his administratrix. The admissibility of parties depends wholly on the language of the Gen. Sts. c. 131, § 14. The language of the proviso is as follows .■ “ Provided that where one of the parties to the original contract or cause of action is dead, or is shown to the court to be insane, the other party shall not be admitted to testify in his own favor." Whether the party plaintiff or the party defendant consists di one or more persons, is not made a ground of distinction. If tne opposite party is dead or insane, the language of the statute apparently intends to leave the matter as it stood before. And the proviso is reasonable and just. If one party cannot testify by reason of insanity or death, the other party should not have the advantage of putting in his testimony. This rule also has the advantage of simplicity. To adopt the construction of the judge, and allow the defendants to testify for each other, but not for themselves, would give rise to a multitude of nice questions, and would often make it necessary to permit the jury to hear evidence affecting the witness *353personally, but which the court must instruct them ought not to affect the case as to him. It is difficult and sometimes impossible to prevent evidence thus received from influencing the minds of jurors, and injuring the opposite party.
A construction of the statute was adopted in the case of Hayward v. French, 15 Gray, , which aids us in the decision of this question. That was an action brought against two surviving members of a firm, the third member being dead. The defendants contended that because one member of their firm was dead, the plaintiff could not testify. But the court held otherwise, because the phrase “ one of the original parties to the contract ” must be held to mean the legal party to the contract; and therefore all the members of the firm must be dead, to exclude the other party. If this is the true meaning of the word “ party,” in respect to a joint contract of copartners, it must be the same in respect to a joint tort. Many authorities might be cited to show that this is the common meaning of the word in legal instruments and proceedings.
4. The court ought to have given the instruction prayed for by the defendants as to the old fence, for the request was in conformity with the statute. Gen. Sts. c. 46, § 1. A statute boundary is established for the purpose of quieting disputes, in cases where the boundaries of highways cannot be ascertained by other evidence.
5. The court properly left it to the jury to decide whether the deeds offered by the defendants in evidence included the triangular piece. We cannot see from the description whether they did or not. Neither the westerly nor the southwesterly description of boundaries makes it apparent that this piece is included; but that fact must be determined by evidence showing to what points on the surface of the ground these descriptions apply. Thus it was a question of fact, and not a question of construction.
6. The court correctly ruled that the plaintiff could recover, under his declaration, for damages for obstructing the way to such parts of the premises, if any, as the way might be found appurtenant to, even if for less than the premises described in. *354the writ. If there was any part of the tract to which the way was not appurtenant, it lay beyond the part to which the way was appurtenant; and therefore describing the whole tract in the declaration could not occasion a variance. Whitney v. Lee, 1 Allen, 198.
7. The judge properly left it to the jury to say, upon the whole evidence, where, upon the triangular piece, the way was, and whether it was substantially such a way as was desciibed in the declaration; for this was a matter of fact dependent upon the evidence, and the request made to him was in substance to state to the jury an argument that might lead to results favorable to the defendant, rather than a principle of law.
Exceptions sustained