
    Drew v. Simmons.
    
      Action on Account
    
    1. Competency of loitness; to what beneficiary can not testify. — Under section 3058 of the Code of 1876, which enlarges the exception contained in section 2704 of the Kevised Code, a beneficiary in the suit, though not a party to the record) c.an not testify in his own interest, to any transaction with or statement by a deceased person, whose estate would be affected prejudicially by the evidence.
    2. Same; what interest incapacitates. — A person contracting with the decedent is not a competent witness, to prove the contract, in his own behalf, in a suit against the personal representative; and it would be against the policy of the statute, and might lead to great abuse to hold that his competency was restored by the transfer of the claim to another.
    ApPkat, from tbe Circuit Court of Monroe.
    Tbe record of tbis case never having come to tbe bands of Beporter, tbe same is, unavoidably, reported without tbe name of tbe judge before whom tbe trial was bad, and without a statement of tbe facts. To aid, therefore, in an understanding of tbe case, tbe counsels’ briefs, found on file, are printed in full.
    S. G. CuMMing, for appellant.
    1. Tbe questions of law in tbis case arise under section 2704 of tbe Bevised Code, as amended by tbe act of March 2, 1875, (Acts 1874-5, p. 252.) Tbe account sued on was made by tbe deceased, John Peebles, with tbe witness, John A. Simmons, as is alleged in tbe complaint. Tbe witness,’ Simmons, as appears from tbe bill of exceptions, was tbe transferror of the account sued on. Being transferror, tbe case comes within thé rule laid down in Leivis, Adm’r, v. Easton, 50 Ala. 470, “as to any transaction with or statement by” tbe deceased. — Allison, Aclm’r, v. Tally, Adm’r, December term, 1877.
    2. Tbe account sued on was an account against the deceased, John Peebles, in favor of tbe witness, John A. Simmons, as appears from the account itself, which is set out in tbe record. Were tbe matters, as to which tbe witness, John A. Simmons, was permitted to testify, within tbe exceptions contained in tbe statute ? Tbe matters were these: 1st. As to when tbe deceased came to witness’ bouse to board; 2d. When deceased left tbe bouse of witness; 3d. As to whether or not tbe account sued on bad been paid. I insist that tbe first two questions are clearly within tbe exceptions in the statute. The deceased going to the bouse to board and bis leaving there, were “transactions with the witness,” within the meaning and spirit of the exceptions contained in the statute. This statute, section 2704 of the Revised Code, was a very great and wide invasion of the common law, and is to be strictly construed. The third question, “has the account ever been paid?” necessarily involved within it another question, viz: As to whether or not said account had ever been paid by any one, and that included the deceased ? The question then was, in effect, whether or not the account had ever been paid by the deceased? The question then involves a transaction, or transactions, with the deceased, namely, the transaction of payment. Being thus really within the exception, the question should not have been asked the witness. — Stuclcey v. Beliak, 41 Ala. 700; Kirlcsey v. Kirlcsey, 41 Ala. 627; Leiois’ Adm’r, v. Easton, 50 Ala. 470; Allison, Adm’r v. Tally, December term, 1877. As each of the questions were illegal, each of the answers should have been excluded. The witness was incompetent at common law on the ground of public policy, and this incompetency was not removed by the statute. — Olifton v. Sharpe, 15 Ala. 618.
    3. I insist that the decisions of this court, as they appear in the following cases, show that the court below erred in permitting the questions to be asked, and in permitting the answers going to the jury. — Houston v. Prewelt, 8 Ala. 846; Clifton v. Sharpe, 15 Ala. 6¡8; Waldman v. Orommelin’s Adm’r, 46 Ala. 580; Mayor, dec. v. Jones, 42 Ala. 630; Key v. Jones’ Adm’r, 52 Ala. 238, and cases before cited. This question is discussed in Wharton on Evidence, and the law held to be in my favor as I understand it.
    O. J. Toekey, contra.
    
    1. The witness, Simmons, was competent to testify as to any matter pertinent to the issue and not within the exception contained in the statute (section 3058 new Code). — O’Neal v. Reynolds, 42 Ala. 197; Avery’s Ex’rs v. Avery, 49 Ala. 193; Goldsbee’s Adm’r v. Fordham, 49 Ala. 202; Bragg v. Ciarle, 50 Ala. 363; 3fiUer v. Olay, Head Notes, December term, 1876.
    2. The objection to the question, “state when Peebles came to your house,” and to the answer of the witness, were properly overruled. The witness, Parker, had just testified that decedent (Peebles) went to Simmons’ house sometime in 1870, and left in October 1872, and the question to Simmons simply called for a date, not for any transaction with, or statement made by decedent. It was proven by another witness that deceased did go to the house of Simmons sometime in 1870, and tbat be left in 1872, about October, and tbe statement by Simmons of tbe particular times in 1870 and 1872 that decedent came and left, can not be tortured into testimony of a transaction witb tbe deceased. He did not say a word about any transaction; be did not testify tbat there was any contract for board, or about any contract at all — nor did be even say tbat deceased boarded witb bim — be simply gave a date, leaving it for tbe testimony of others to show those facts necessary to entitle tbe plaintiff to a judgment. — Miller v. Glory, supra, [Head Notes), December term, 1876.
    3. And even if tbe court erred in this respect, so far as it appears from tbe bill of exceptions, it was error without injury. Tbe bill does not purport to set out all tbe testimony, and every presumption is against tbe party appealing, and we submit that tbe court committed no error in overruling tbe objection.
    4. Tbe same argument applies to the objection to tbe other question to Simmons, viz: “State when be (deceased) went away?”
    5. It is stated tbat, when a statute declares a general rule witb an exception, tbe exception is to be more strictly construed than the statute itself. — -Bragg v. Glorie, 50 Ala., last part of p. 365. And tbe exception should not be stretched to cover cases not clearly within tbe prohibition.
    6. Tbe question, “Has tbat account been paid, so far as you lenow?” and tbe answer thereto, were properly admitted. The question and answer evidently bad reference to any payments tbat might have been made by tbe administrator or other person, after tbe death of Peebles, and not to any transaction witb or statement of deceased. Tbe bill of exceptions and form of tbe question show this — besides, tbe answer destroys tbe idea of a transaction, and shows there was none for bim to testify about, if it bad reference to deceased. We submit tbat there is no error in tbe record.
   STONE, J.-

In Allison v. Tally, at tbe present term, we noticed tbe differences between section 2704 of tbe Revised Code, and se<ftion 3058 of the Code of 1876, and pointed out wherein tbe present statute enlarges tbe exception CQntained in tbe former one. We also quoted witb approbation tbe decision in tbe case of Key v. Jones, 52 Ala. 238, in which it was said, “when tbe purpose of evidence is to diminish tbe rights of a decedent, or of those claiming in succession to bim, by declarations or admissions made by bim, or transactions bad witb bim, in bis life, no party in interest is a competent witness to prove such admissions, declarations, or transactions.” So, in that case, and in the later case of Allison v. Tally, supra, we gave to the statute a construction, broader than its mere words ; and held that a beneficiary in the suit, though not a party to the record, could not testify in his own interest, to any transaction with, or statement by a deceased person, whose estate would be affected prejudi-cially by the evidence. We further held, in the later case, that the policy of the exception was, to exclude the testimony of a living, interested witness, against a deceased person’s estate, because no one should be heard to testify of a transaction with, or statement by another, who had, in the meantime died, and hence could not confront, and, perchance, contradict the evidence thus given against him or his estate.

In the present case, the witness was the person with whom the alleged contract was made. If he had sued, it is clear that he was incompetent to testify in bis own favor as to any transaction with, or statement by defendant’s intestate. To hold that a creditor thus circumstanced can, by a transfer of the claim to another, render himself competent to give evidence which he could not give in his own favor, would be a palpable perversion of the policy of the statute, and might lead to a most shocking abuse.

The testimony given, and objected to, would, if believed, have established a prima facie case for recovery of the value of intestate’s board, sued for. And it is too clear for dispute, that the facts proved by each of them, related to a transaction with defendant’s intestate. They raised an implied assumpsit or promise by Peebles, the deceased, to pay a quantum meruit therefor. The Circuit Court erred in admitting this evidence.

Reversed and remanded.  