majority">SOMEBYILLE, J.-

The suit is for an account, brought by the plaintiff as administrator of the estate of one Mathone, *426deceased, the transaction, upon which the account was based, having transpired between the defendant and the plaintiff’s intestate during his lifetime.

The only question presented is, whether the plaintiff can compel the defendant, in such a casé, to testify in his, the plaintiff’s favor, against the objection of the defendant.

It is very clear that the defendant would not have been a competent witness in his own behalf to .testify against the plaintiff as to any transaction with or statement by the deceased. Section 3058 of the present Code (1876), which removes all incompetency based upon the fact of the witness being a party, or interested in the issue, in other than criminal cases, embodies the specific exception that “ neither party shall be allowed to testify agmnst the other, as to any transaction, with or statement by a/ny deceased person whose estate is interested in the result of such suit, or when such deceased person, at the time of such statement or transaction, acted in any representative or- fiduciary relation whatsoever to the party against whom such testimony is sought to be introduced.”

W e have before said that the purpose and policy of this statute is “to exclude the livi/ng from testifying against the dead, because the latter can not be heard in explanation or contradiction.”-Dismukes v. Tolson, 67 Ala. 386; Kumpe v. Coons, 63 Ala. 448. Its chief design, in other words, is to protect the estates of decedents against the setting up of fraudulent defenses, and the establishment against them of fraudulent claims or unfounded causes of action. To this end the law, with even-handed justice, seals the lips of the one party, where the a'ccident of death has sealed the lips of -the other. 1 Whart. Ev. § 466.

The reason of the rule established by the exception can have no application, in our opinion, to the present case. The statute declares that “ neither party shall be allowed to testify against the other ” as to such transactions or statements. It is nowhere said that neither party shall be permitted or compelled to testify for the other. The rule at common law was, that interest disqualified a witness only from testifying in his own behalf, not for the adversary party, and against his own interest. — 1 Greenl. Ev. § 410. The same principle applies in cases arising under our own statute, which narrows and preserves the common law rule as to- the class of excepted cases. The exclusion of the defendant as a witness being for the benefit and protection of the estate, the rule establishing it can be waited by the administrator, or opposite party. This is declared to be the law by Mr. "Wharton in his treatise on Evidence. “ The opposite party may waive the immunity,” he says, “ by calling as a witness the surviving party to the contract.” — 1 Whart. Ev. § 475®. *427In Chase v. Evoy, 51 Cal. 618, it was adjudged, under a similar statute, that the exception did not preclude the administrator from calling one of the parties to the suit to testify as a witness for the estate, of which he was administrator.

It is argued that inasmuch as the Code of 1876 (§ 2704) provided that, in the class of cases under consideration, “ neither party shall be allowed to testify against the other ” as to transactions with the deceased, “ unless called to testify thereto iy the oppositeparty,” the omission of the latter clause from section 3058 of the present Code (1876) must be construed into a legislative intention to abrogate the right which was there recognized. The answer to the suggestion is, that the right of each party to call the other as a witness against himself, or in favor of the party calling him, would have existed without its express authorization, and this was presumptively known to the General Assembly. It. must, therefore, have been recognized in the Code of 1867, merely from abundant legislative caution. In cases free from doubt, the mere omission of such clauses in the revision of statutes should not be construed into a legislative intention to abrogate a clear legal right. Such at least should certainly be the rule of construction, where the right in dispute comes within both the letter and spirit of the statute, and the omitted clause falls without the purview of the mischief to be remedied by its enactment; and such is this case.

The court below erred in not allowing the several questions propounded by the .plaintiff to the defendant; and the judgment must for this reason be reversed and the cause remanded.

StoNE, J., not sitting.

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