
    Kirchner v. Lewis’ Administratrix.
    Decedents’ Estates. — Witness.—Under the second proviso of section 3 of the act of 1861 (2 Cr. & H. 168), the discretionary power conferred upon the court to require a party to testify in suits by or against executors, &c., is an absolute one, and not subject to review by this court.
    APPEAL from the Jennings Common Pleas.
   Elliott, J.

— Suit by Hannah J. Laois, administratrix of Benjamin F. Lewis, deceased, against Kirchner and Lutz, on a promissory note executed by them to the decedent in his lifetime, to-wit, on the 11th day of August, 1865, for $200, due one day after date.

Lutz answered, admitting the execution of the-note, but alleging that he executed the same as the surety of Kirchner, who was the principal therein, and praying to have said question of suretyship determined.

Kirchner answered in three paragraphs, admitting that ho was the principal, and Lutz only his surety, and alleging:

1. Payment.

2. Set-off of $268 05 for a bill of cut stone furnished by him to the decedent in his lifetime, and prior to the execution of the note sued on.

8. As to the sum of $7 75 of said note, that it was without any consideration whatever.

To the whole answer of Kirchner the plaintiff replied by the genei’al denial, and as a further reply to the second paragraph, alleging a set-off, that said decedent in his lifetime paid said Kirchner the full amount of said account.

Trial by jury, and verdict for the plaintiff for the full amount of the note and interest. Motion for a new trial overruled and judgment. Kirchner appeals.

On the trial of .the cause before the jury, the court, over the objection of Kirchner, required the plaintiff', the administratrix, to testify as a witness, and she did thereupon testify that about three weeks after the death of her husband, Kirchner came to her house and said to her that she had a note against him; that he did not want her to sue him on it, and promised to pay it in three weeks; that he had a contract with the government, and as soon as he got his money he would pay the note, and that it was just; that Lewis had been a kind friend of his, and had let him have money time and again. On cross-examination, she further testified, that Kirchner said nothing about having an, account against the estate, but said that he did not know what he would have done if it had not been for that money, as he might have lost the contract.

The action of the court in requiring the administratrix to testify is assigned for error, and is the first question presented in the case. The objection is not well taken. The second proviso to section 3 of the act of 1861 (2 G. & H. 168) declares, ’“that in all suits-where an executor, administrator or guardian is a party, in a case where judgment may bo rendered either for or against the estate represented by such executor, administrator or guardian, neither party shall be allowed to testify as a witness, unless required by the opposite party, or by the court trying the cause, except in cases arising upon contracts made with the executor, administrator or guardian of such estate.” It was evidently the intention of the legislature, in enacting this provision, to confer on the court trying such a cause discretionary power to require a party to the cause to testify, when, in the opinion of the court, the ends of justice would be subserved thereby. The discretion thus conferred is an absolute one, and is not subject to review by this court.

A. Andrews and J. Bundy, for appellant.

C. E. Walker, for appellee.

The only remaining question is as to the sufficiency of the evidence to sustain the verdict of the jury. We have carefully examined the evidence given on the trial. It seems to establish the facts, very clearly, that the defendant Kirchner furnished the stone and performed the labor charged in his bill of particulars filed with the answer claiming a set-off’, and that the note sued on was not given on a settlement of accounts between the parties, but for money loaned to Kirchner by Lewis at the date of the note. But the evidence and circumstances in the case, not contradicted, tend to prove payment by Lewis, in his lifetime, of the account set up by Kirchner, and we think the jury might have reasonably inferred such payment. We cannot, therefore, disturb the verdict.

The judgment is affirmed, with costs, and five per cent, damages.  