John C. Page et al., Executors, versus Edward Page, 15 Pick. 368

Putnam J. delivered the opinion of the Court. There seems not to be much questionable matter of law in this case. The first objection to the proceedings at the trial is, that the chief justice erred in the rejection of Kilby Page as a witness, although the defendant offered to release him, after it was proved that John Wade, junior, was the party in interest, and had indemnified the nominal plaintiffs. In Commonwealth v.

Marsh, 10 Pick. 57, the Court held, that “ it is an inflexible rule of evidence, that parties of record, whether in civil actions or criminal prosecutions, are not admissible as witnesses.” And the rule applies to nominal parties who are indemnified as to costs. The same rule was afterwards recognised in the case of Columbian Manufacturing Co. v. Dutch, 13 Pick. 125.

The next objection was, that the chief justice erred in the rejection of the petition of John Wade, junior, to the judge of probate, in relation to the note in question, Wade being the party in interest, and his petition being filed before the judge of probate, under and by virtue of St. 1783, c. 32, § 11. That was a representation to the judge of probate by John Wade, junior, that he had reason to believe that the defendant had concealed, embezzled, and conveyed away a certain promissory note &c., belonging to the testator, and praying that he might answer upon oath.

Process issued, and the defendant came before the Probate Court and answered. Now that proceeding is analogous to a bill in equity for discovery. It is very clear, that the plaintiff is at liberty to use the answer of the defendant to the bill, or not, as he may choose ; and the defendant cannot have the like privilege. Mr. Dane (3 Dane’s Abr. 380) says, that the bill in equity is not evidence against the plaintiff in a court of law, to prove any facts alleged or denied in the bill. It is not evidence of the facts contained therein. Doe v. Sybourn, 7 T. R. 2.

It is never admitted in evidence further than to show, that such a bill did exist and that certain facts were in issue between the parties, in order to let in the answer or depositions of the witnesses. We think this objection cannot prevail.

It was also objected, that the chief justice erred in admitting the secondary evidence as to the contents of the note , inasmuch as there was not sufficient primary evidence of the loss of it; and it was suggested, though not much pressed, that the primary evidence was for the jury. [Here the judge stated the contents of the affidavit of both of the plaintiffs, sworn to on February 14, 1832, and of that of Kilby Page, sworn to on November 22, 1832.] Under such circumstances the chief justice permitted the N plaintiffs to offer the secondary evidence to prove the contents of the note, notwithstanding the last affidavit was not made by John C. as well as by Kilby Page ; and we think the evidence of the loss was sufficiently proved.

Kilby Page was the acting executor ; John C. Page was rather nominally than actively, the executor. The papers of the testator were received by Kilby, and examined by him. And we have no reason to suppose that the plaintiffs had the possession of the note. It is a bare possibility that John C. Page received the note, after he made the affidavit on February 14, 1832, and before November 22, 1832, when Kilby Page made his affidavit. But considering that John C.

Page had left the country, and that Kilby Page always transacted the business, we are satisfied, that there was sufficient evidence for the pre siding judge to allow the plaintiffs to give secondary evidence of the contents. We think very clearly, that the question whether secondary evidence should have been allowed or not, was for the court, and not for the jury, to determine. The jury might as well be called upon to decide upon the competency of any other evidence, as upon this. The court must decide what is and what is not competent evidence to be laid before the jury.

That rule is just as clear, as is the rule, that after the evidence is submitted, the jury are to be judges of the credit and weight of it.

It was next contended for the defendant, that the judge who tried the cause ought not to have “ commented on the affidavit of Kilby Page, which had not been read to the jury in evidence, and stated that it furnished sufficient evidence to rebut the presumption, arising from the non-production of ffie note by the plaintiffs, that it had been paid to them, and without which there was no satisfactory evidence tending to prove, that the note had not been paid to them, after a period of five years.” It appears from the report, that evidence was offered by the plaintiffs tending to show, that after the death of the testator, the defendant admitted that he had the note in his possess on, and stated the date and the amount, and that he acknowledged that it was then due, and that he was ready to pay it whenever there was an executor qualified and authorized to receive it.

And those points were controverted by the defendant, and the evidence was left to the jury to decide upon the facts of the execution and the terms of the note. It appears that the confessions of the defendant, that he had the possession of the note after the death of the testator, that it was due, and that he was ready to pay it, together with the evidence which the defendant produced to contradict those confessions, were submitted to the jury, to determine upon the defence of payment which was set up by the defendant.

The only commentary made upon the affidavit was, an explanation of the reason why the court had admitted the secón dory evidence. It was entirely proper, as some of the jury, without such an explanation of the rule of the law touching secondary evidence, might have hesitated to give a verdict upon a note which was not produced. The whole charge, it seems to us, was unexceptionable upon that point. The jury found a verdict for the plaintiffs. And we think the cause was fairly tried, and that the objections to the rulings and opinions of the presiding judge cannot be sustained. Judgment according to the verdict.