5. Parties to the action or proceeding.-A defendant may be examined as a witness on behalf of his codefendant, if their interests are divisible. Beach v. Covillaud, 2 Cal. 237.

6. Where the evidence of one defendant is as available to himself as to his codefendant, this Court has always held, that one is incompetent to testify for the other, and the same rule prevails under like circumstances where the declaration is in tort, and the defendants are charged as joint tort-feasors. Johnson v. Henderson, 3 Cal. 368.

7. Under the statute a defendant cannot be a witness for his codefendant, where the defense is general and would operate in discharge of both. Buckley v. Manifee, 3 Cal. 441.

8. And the rule is the same where but one defendant is upon trial, the other not having been served with process in time. Id.

9. A defendant who has suffered default is not a competent witness to prove that he was authorized by his codefendant to sign his name to a note, as by so doing he would reduce the amount of judgment against himself. Washburn v. Alden et al., 5 Cal. 463.

10. A defendant who has not been served with process is not a competent witness for his codefendants in an action of trespass. Gates v. Nash, 6 Cal. 192. 11. After judgment against a party, the action is ended as to him; he is no longer a party, and then his competency must be tested by his interest. Vance v. Collins, 6 Cal. 435.

12. If a party be improperly joined as defendant, the Court or jury, upon application, should first pass upon his case; and after he is discharged, he could then be examined as a witness for the other defendant. Domingo v. Getman, 9 Cal. 97. 13. Case where one of several defendants was admitted as witness for plaintiff. Dupuy v. Leavenworth, 17 Cal. 262.

14. One who is not necessarily a party, is not disqualified as a witness by being made a party. Keteltas v. Penfold, 4 E. D. Smith's C. P. R. 122, 134.

15. Party for whose benefit the action is prosecuted or defended. See § 422.

16. Interest; present, certain and vested.-A witness, in an action for a disputed mining claim, who was in the employ of the party in possession at fixed wages, to be paid, however, from the proceeds of the claim, is not incompetent when his wages are not dependent upon the sufficiency of such proceeds. Live Yankee Co. v. Oregon Co., 7 Cal. 40.

17. Where the defeat of plaintiff would inevitably result in S. obtaining the fund in controversy: Held, that S., although not a party to the suit, was incompetent as a witness. McEwen v. Johnson, 7 Cal. 258.

18. The liability of a witness to either party, in case of a certain result of the suit, must be legal and not moral, and the consequent interest present, certain and vested, in order to exclude the witness. Jones v. Love, 9 Cal. 68.

19. In an action of foreclosure of a mortgage brought by the administrator upon a note and mortgage given to the intestate in his lifetime, a witness whose wife is a sister and heir of the deceased is incompetent upon the ground of interest. Lisman v. Early, 12 Cal. 282.

20. In an action for damages for the diversion of water from the plaintiff's ditch, the deposition of one of the owners in the ditch was taken by the plaintiff, and subsequently, and before the trial, the witness conveyed, by deed, his interest in the ditch to plaintiff: Held, that such deed of conveyance did not pass the witness' right to the damages, and hence he was an incompetent witness. Kimball v. Gearhart, 12 Cal. 27.

21. A witness is not disqualified because of a mere expectation of deriving from a suit some advantage to which he is not legally entitled. Coghill v. Boring, 15

Cal. 213.

22. The interest which renders a party incompetent as a witness is a legal interest in the event of the suit; and it is the fact of interest, not the supposition of the party that he is interested, which incapacitates him. McCabe v. Hand, 18 Cal. 496.

23. Agent.-Where a party, assuming to act as agent for the payee and indorser of a note, waived demand and notice for his principal, and was the only person from whom a knowledge of the transaction could be obtained: Held, that

he is ex necessitate a competent witness for the holder of the note in suit against the maker and indorser. Mills v. Beard, 19 Cal. 158.

24. In such cases the fact of interest does not exclude the witness, his competency constituting an exception to the general rule of exclusion on the ground of interest. Id.

25. Servant. In an action where the defense set up is the negligence of the servant of plaintiff, the servant is not a competent witness for his employer. Finn v. Vallejo Street Wharf Co., 7 Cal. 253.

26. Clerk of the Court.-Where the Clerk of a Court is called as a witness to prove the records of the Court of which he is Clerk, it is no objection that he is interested in the result of the suit. Price v. Dunlap, 5 Cal. 483.

27. Broker. A broker whose commissions or compensation depends on his principal's recovery is incompetent as a witness, on the ground that he is directly interested in the event. Shaw v. Davis, 5 Cal. 466.

28. Maker of a note.-In an action against the indorser of a note, where demand and notice are not averred, but where it is averred that the maker paid the indorser the value of the note, and that the indorser agreed to pay it, the maker of the note is not a competent witness to prove those facts. Palmer v. Tripp's administrator, 6 Cal. 82.

29. The maker of a note, after judgment againt him, is a competent witness for the indorser, because his interest is equally balanced. Vance v. Collins, 6 Cal. 435.

30. Indorser, payee.—In a suit, therefore, by an indorsee against the maker of a note, the indorser, not being a party, is a competent witness for the plaintiff, where it does not appear that the suit is prosecuted for his immediate benefit. Tomlinson v. Spencer, 5 Cal. 291.

31. An indorser of a note is incompetent as a witness to establish the lien of a holder of the note upon the property of the maker, being directly interested to have the lien established. Soule v. Dawes, 6 Cal. 473.

32. In a suit against the maker of a note, or the acceptor of a bill, the indorser is a competent witness for either party. Bryant v. Watriss, 13 Cal. 85.

33. In a suit against the maker of a note, the payee or indorser is a competent witness for either party. Smith v. Richmond, 19 Cal. 476.

34. Members of incorporations.-In an action by a company of miners to recover possession of a mining claim, and damages for its detention, a person who was a member of the company at the time of the alleged detention, and who, prior to the commencement of the suit, in consideration of unpaid assessments, sold his interest to his copartners in the claim, without warranty, is not a competent witness, as he is interested in the damages sought to be recovered. Packer v. Heaton, 9 Cal. 568.

35. A person who has been a stockholder in an incorporated company, but ceased to be such holder before suit was brought, is a competent witness in an action in the name of such company. Tuolumne County Water Co. v. Columbia and Stanislaus Water Co., 10 Cal. 193.

36. A member of the incorporation, at the commencement of a suit brought by it, cannot become a witness for it on the trial by selling out his shares of stock after suit brought. He is personally liable for his proportion of the costs, and his competency as a witness can only be restored by actual payment of the entire costs of the case-those due, and those to become due. Mokelumne Hill Canal Co. v. Woodbury, 14 Cal. 265.

37. A party who permits himself to stand on the books of a water company, incorporated under the statute of this State, as a stockholder, and holds the office of Secretary, to which no person but a stockholeer is eligible, is not a competent witness for the company in an action against it for overflowing plaintiff's mining claim. He is liable for the debts of the company, and therefore interested. Wolf v. St. Louis Independent Co., 15 Cal. 319.

38. The fact that the stock was held in his name in trust for another-the transfer having been made simply to him to become an officer of the company-does not relieve him from responsibility. Id.

39. Witness in actions concerning lands.-On the trial of an issue of fact involving the validity of a will, a subscribing witness thereto is not rendered incompetent as a witness by holding lands devised therein in trust for a devisee, and without having any interest himself therein. Peralta v. Castro, 6 Cal. 354.

40. And where such trustee had executed a covenent of warranty to a purchaser of a portion of such lands, but was fully indemnified against loss thereby by the cestui que trust, and also held what he thought a sufficient portion of the purchase money so received as further indemnity, he is a competent witness. Id.

41. A vendor by a quit-claim deed is a competent witness in an action of ejectment by the vendee against a third party, to recover possession of the premises. Johnson v. Parks, 10 Cal. 336.

42. The lessor of plaintiffs is a competent witness in an action for a trespass to the leased premises, where the lease does not bind him to protect the plaintiff against trespassers. Mc Cormick v. Bailey, 10 Cal. 230.

43. In an action of trespass for entering upon the mining ground of plaintiff, and digging the same up and converting the gold-bearing earth, the vendor of plaintiff is a competent witness, although a part of the purchase money is still due him. Rowe v. Bradley, 12 Cal. 226.

44. But in real estate the covenant of warranty runs with the land, and the vendor is liable directly to the person evicted, and is not a competent witness for plaintiff. Blackwell v. Atkinson, 14 Cal. 470.

45. In ejectment for mining claims and for damages, defendant's entry being laid October 21st, 1859, and the suit brought in March, 1860, plaintiff called a witness, W., who was one of the owners of the claims from the fall of 1858 to February, 1860, when he sold to plaintiff, during which time the damages accrued: Held, that the witness was competent as against the objection that he was interested, because a recovery by plaintiff would not necessarily give a right of action to the witness for damages accruing before the conveyance and recovery; and the record of such recovery would not be conclusive, if any, proof of his title. Grady v. Early, 18 Cal. 108.

46. Von S., Deputy United States Surveyor, was called as a witness on behalf of plaintiff in ejectment on a patent, to prove that the premises in controversy were within the calls of the patent, and in the occupation of the defendant, and on his voir dire stated that he was married to a daughter of plaintiff's, and had, about two years previously, and after the patent was issued, purchased, in his own name, land covered by the grant, upon the confirmation of which the patent issued. Defendant objected to the witness as interested in the grant as part owner, and hence, that he was disqualified: Held, that the ownership of the witness in parcels of land covered by the grant, other than the premises in controversy, did not disqualify him; that he could not, from such ownership, gain or lose by the direct legal operation and effect of the judgment; nor could the judgment be legal evidence for or against him in any other action. Mott v. Smith, 16 Cal. 533.

47. Where a mining company sues for damages for trespasses committed on their claims during January, February and March, but had sold out to the company on the first of April, is not a competent witness for the plaintiff, even though when offered, the witness executes an assignment to plaintiffs of his interest in the damages. Columbus Co. v. Dayton Co., 18 Cal. 615.

48. Ejectment for a quarter section of land. Defendant disclaimed as to all except the north half of the section, eighty acres, within which he had thirty acres inclosed, and called the "Old Field." Defendant offered his brother, A. R. Whitesides, as a witness to prove defendant's prior possession of that part of the north half of the section outside of the "Old Field." Witness on his voir dire said he lived with defendant, was interested in the crops which were in the "Old Field" only, and had no interest whatever in the balance of the land: Held, that the witness was competent; that his being interested in farming within the "Old Field " did not make him interested in the result of the litigation as to the land outside of that field. Hicks v. Whitesides, 18 Cal. 700.

49. Vendor of goods.-As a general rule, the vendor of goods is not a competent witness to impeach the sale made by himself. Howe v. Scannell, 8 Cal.

325.

50. But where evidence is introduced showing a collusion between vendor and purchaser to defraud the creditors of the former, the declarations of the vendor are admissible; and a fortiori, his sworn statement. Id.

51. Where the vendee of a lot of wheat released his vendor from all damage by reason of any implied warranty of the title to the wheat, which was then in litigation between the vendee and a third party, such release made the vendor a competent witness. Paige v. O'Neal, 12 Cal. 483.

52. If the action concern the title to personal property, the vendor is a competent witness for a second or any subsequent vendee, the objection going only to his credibility. Blackwell v. Atkinson, 14 Cal. 470.

53. Generally, a vendor with warranty of title is not a competent witness for his vendee in a controversy concerning the title. Id.

54. Where goods are seized by the Sheriff on an execution against G., and the owner of the goods so in the Sheriff's hands assigns them to plaintiff, who replevins them on the ground of fraud in the original sales, the assignors are competent witnesses for plaintiff. This is not assigning a chose in action, but a sale of specific goods. Coghill v. Boring, 15 Cal. 213.

55. See ante, § 4, page 10, Nos. 83-94, as to assignors and vendors.

§ 393. The test of interest. A party may call the adverse party.

[1854.] The true test of the interest of a person, which shall render him incompetent as a witness, shall be that he will gain or lose by the direct legal operation and effect of the judgment, or that the record of the judgment will be legal evidence for or against him in some other action; but nothing in this, or in the last section, shall prevent a party calling as a witness the adverse party to the action, or a person whose interest is adverse, nor a party being a witness in the cases mentioned in section four hundred and twentythree.

See 392. J. P.

§ 394. Persons who shall not be witnesses.

[1854.] The following persons shall not be witnesses:

1st. Those who are of unsound mind at the time of their production for examination;

2d. Children under ten years of age, who, in the opinion of the Court, appear incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly;

3d. Indians, or persons having one-half or more of Indian blood, and negroes, or persons having one-half or more of negro blood, in an action or proceeding to which a white person is a party;

4th. Persons against whom judgment has been rendered upon a conviction for a felony, unless pardoned by the Governor, or such judgment has been reversed on appeal."

J. P.

mony.

1. There is no precise age within which children are excluded from giving testiTheir competency is to be determined, not by their age, but by the degree of their understanding and knowledge. The People v. Bernal, 10 Cal. 66.

2. It is for the Court to decide the question of their competency when they are nemntion is that they possess the req

Id.

mntion is

J. P.

Amendment to Sec. 395.-Passed April 27th, 1863.

[Takes effect sixty days after passage.]

§ 395. A husband may be a witness for or against his wife, and a wife may be a witness for or against her husband, and where husband and wife are parties to an action or proceeding, they, or either of them, may be examined as witnesses in their own behalf, or in behalf of each other, or in behalf of any of the parties thereto, the same as any other witness; but this section shall not apply to cases of divorce, neither shall any husband or wife be competent or compellable to disclose any communication made to him or her by the other during marriage.

ing the right of determining for himseit the question

province, but that of the Court; and his refusal to produce the papers is a contempt. Mitchell's Case, 12 Abb. Pr. R. 249.

3. An attorney having papers of his client in his possession in Court, which are required as evidence in the case, is not privileged from producing them; at least, for the purpose of identification. The People ex rel. Mitchell v. The Sheriff of N. Y., 7 Abb. Pr. R. 96.