Young v. Inhabitants of Garland , 18 Me. 409 ( 1841 )

The opinion of the Court was drawn up by

Emery J.

One matter of exception against the decision of the' Court of Common Pleas is the exclusion of evidence as to the declarations of a proposed witness as to his interest. If a witness is sought to be excluded by proof of his declarations the attempt will be unavailing. It will go only to his credibility. Were it otherwise any one might deprive a party of the benefit of his testimony by a simple declaration that he was interested.

In North Carolina, it has been ruled that a witness conceiving himself interested, when in fact he is not, will not render him incompetent. Harrison v. Harrison, 2 Hayward, 355.

As to proof of admissions of declarations of witnesses respecting matters of religious opinion, in order for the Court to determine whether the expected witness be an atheist, it is adopted from the necessity of the case, as a man’s mind can only be known from his declarations in conversation or writing. Yet it is considered as an entirely different affair in regard to the declaration by a proposed witness as to his pecuniary interest.

The defendants consider that their proposal to prove the opening of the road between the ranges 8 and 9, and the location of that as bearing on the question of usage and side lines, ought to have been received ; and that the accident happened without the range lines ; and that there was ample room for travelers to pass between the log and the fence on the other side of the road, was sufficient to sustain the defence.

It appearing on the exceptions that it was admitted that the proceedings of the town in opening the road were not pursuant to the provisions of any statute of the State, we are satisfied that the decision excluding the proof of custom of the town must be sustained.

It has been decided in Massachusetts, that a private way cannot be proved by usage. Com’th v. Newbury, 2 Pick. 5; Com’th v. Low, 3 Pick. 408.

A remark of Shaw, C. J. in Stedman v. Southbridge, 17 Pick. 162, was, that the allegation of injury on a town way could not prove but that it was such a highway as the town was to repair, and that road or common road is used synonimously with highway. Ancient Charters, 267, 494, 308, 506, 612, that the word road is generic embracing every species of public way. We apprehend that the proof of the road by usage was altogether proper. It was a question of fact whether the accident happened within the limits of the road, which the jury have settled, and the defendants had the benefit of the testimony before them on this whole subject.

We have expressed our views on this subject independently of the amendment. But that amendment we see no reason to disapprove. The exceptions must be overruled.