1877 forment la somme de $6,360.80 revenant à chacun des DARLING légataires sur la valeur totale de la succession. L'intérét doit être réduit à 6 par cent parcequ'il n'a été fait aucune preuve d'une convention le fixant à un taux plus élevé. v. BROWN. THE CHIEF JUSTICE, AND RITCHIE, STRONG & HENRY J. J., concurred. Appeal dismissed with costs, with certain Solicitors for Appellants: Cross, Lunn & Davidson. ON APPEAL FROM THE SUPREME COURT OF NOVA SCOTIA. Construction of 41st sec., ch. 96, Rev. Stats. N.S. 4th Series-Actions against Administrators-Evidence of Plaintiff not admissible. C. sued M & R., M. accepted service and acknowledged amount due, but R. pleaded to the action. Before trial both defendants died. Then C. R. & R. R., as administrators of R., were, before trial, made parties to the action. At the trial C. was examined as a witness in support of his own case, and when asked what had taken place between him and the deceased M. & R., the learned Judge ruled that the evidence was inadmissible under sec. 41, ch. 96 of the Revised Statutes of Nova Scotia, 4th series. (1) (1) SEC. 41. On the trial of any issue joined, or of any matter or question, or on any inquiry arising in any suit, action, or other pro ceeding in any Court of justice, or before any person having by law or by consent of parties authority to hear, receive and *PRESENT. Richards, C.J., and Ritchie, Strong, Taschereau, Fournier and Henry, J.J. 1877 CHESLEY Held (affirming the judgment of the Court below):-That under said section, in an action against administrators made parties to an action after issue joined, but before trial, the Plaintiff cannot give any evidence in his own favor of dealings with a deceased MURDOCH. Defendant. [Henry, J. dissenting.] THIS was an appeal to the Supreme Court of Canada from the judgment of the Supreme Court of Nova Scotia, discharging a rule nisi for a new trial, granted by the said last mentioned Court to the Appellant herein. The action was brought by Appellant against the Respondents to recover $395.91 for orchard produce, and also for money due on an account stated, and for interest on money forborne to the Defendants. The Defendant Murdoch accepted service of the writ, and confessed his indebtedness to the Plaintiff to the amount of $375.71. examine evidence, the parties thereto, and the person in whose behalf any such suit, action, or other proceeding, may be brought or defended and the husbands and wives of the parties thereto, and the person in whose behalf any such suit, action, or other proceeding may be brought or instituted, or opposed or defended, including the reputed father in bastardy cases, and the defendant in cases of petty trespass and assault, shall, except as hereinafter excepted, be competent and compellable to give evidence, either viva voce, or by deposition, according to the practice of the Court, on behalf of either or any of the parties to the suit, action or other proceeding. Provided, that on the trial of any issue joined or of any matter or question or on any inquiry arising in any suit, action, or other proceeding in any Court of justice, or before any person having by law or by consent of parties, authority to hear, receive and examine evidence brought by or against the executor or administrator of a deceased person, it shall not be competent hereafter for any other of the parties to such action, or the wife of any such party to give evidence on behalf of such party of any dealings, transactions or agree. ments with the deceased, or of any statements or acknowledg ments made or words spoken by him, or of any conversations with him; provided that any such party or his wife shall be competent and compellable to give evidence on behalf of any such executor or administrator. v. 1877 In the year 1874 the Defendant Tremain Rumsey CHESLEY pleaded to said action, denying indebtedness, and also MURDOCH, denying contract. v. Prior to the year 1876, both of the persons named as Respondents herein died-Murdoch died first. In the year 1876 the Appellants suggested the death of Tremain Rumsey, and the fact that Charles Rumsey and Kinsman Rumsey were the administrators of the estate of Tremain Rumsey, and that the said Murdoch confessed the action. No suggestion of the death of Murdoch appears in the proceedings, and no judgment appears to have been entered against him. The action was thereafter carried on against Charles Rumsey and Kinsman Rumsey, and the issues between the Appellant and the said Charles Rumsey and Kinsman Rumsey were tried before a Jury, at Bridgetown, on the 21st June, 1876. At the trial Plaintiff was examined as a witness in support of his own case, and when asked what had taken place between him and the deceased defendants, the evidence, under sec. 41 ch. 96 Rev. Stat. N.S., 4th Series, was declared to be inadmissible. A verdict was found for the Defendants. The Appellant obtained a rule nisi for a new trial on the ground that the learned Judge who presided at the trial of the issues improperly rejected the evidence of the Plaintiff. The Court below discharged the rule. The Appellant thereupon brought this appeal against the said judgment of the Court below discharging the rule. Mr. Cockburn, Q. C., for Appellant : The question here is a question of evidence: Whether the evidence of a party to an original contract is admissible when the action is brought against the executors? 1877 v. The evidence of the Plaintiff was rejected on the trial as against the administrators of the surviving debtor. The CHESLEY proviso in section 41, ch. 96, Rev. Stat. N. S., 4th Series, must be strictly construed. The Court cannot supply any omission. [HENRY, J. :-The great object of the section was to prevent a living person giving evidence against a dead person. The question is whether the words used in the Statute can apply to administrators made parties to suit before trial?] The action was brought before the death of these parties and at that time Plaintiff was entitled to give his evidence. Can this vested right be suddenly taken away from him by no act of his own, unless expressly provided for by the Statute? The Legislature has not foreseen a case of this kind. It is a case of omission and it is not unreasonable to contend that this Court will not provide for what the Legislature has not provided. This Statute, if construed as the Court has construed it, would be retroactive in its effect, and would defeat an action already begun on the faith of a different state of things: Couch v. Jeffries (1); Wood v. Oakley, (2); Sedgwick on the Construction of Statutes and Constitutional law (3). On the point that the proviso, limiting the prior enactment in the same clause, can receive no effect beyond. its words, the learned Counsel referred to Jones v. Walcott (4); Bigelow v. Heyer (5); Mass. General Stats. (6). Mr Gormully for Respondents: This is an appeal to ascertain the value of the word (1) 4 Burr. 2460. (2) 11 Paige (N. Y.) 400. (4) 15 Gray (Mass.) 541. MURDOCH. 1877 1. MURDOCH. "brought." The proviso in section 41, ch. 96, was first CHESLEY introduced in 22 Vic. ch. 2, section 7. The policy of the Act was to prevent a living person giving evidence against a deceased party. The word "brought" must therefore mean when the evidence can be taken, viz.: the moment of trial. In any case the word "brought" does not necessarily mean "originally brought;" so soon as the administrators of a deceased Defendant are brought before the Court by way of suggestion, the action then is brought against them. See Revised Statutes N. S. (1); R. v. Hants (2) ; R. v. Pembridge (3). This last case is in point, and on all fours with the present case. THE CHIEF JUSTICE: Both of the Defendants died after the action was brought. Murdoch suffered judgment and Rumsey pleaded. After issue joined, Tremain Rumsey died, and his death is suggested, and that Charles Rumsey and Kinsman Rumsey had become Administrators of his estate. At the trial, therefore, Rumsey and Murdoch were both dead. The learned Judge ruled that the testimony of Mr. Chesley as to what took place when he sold the apples, could not be received. The Jury having found for the Defendants, the question was raised before the Supreme Court of Nova Scotia, whether the provisions of the Statute of Nova Scotia as to parties not being excluded from giving evidence in civil suits, on the ground of interest, allowed the Plaintiff to give evi (1) 4th series, ch. 94, sec. 104. |