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dence appears against one of them, he is entitled to be discharged for the purpose of being examined as a witness for his co-defendant. Labar v. Koplin, 4 Coms., 547.

See notes to sections 390, 399.

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Section 398. No witness to be excluded by reason of interest.

399. To whom last section inapplicable.

$ 398. [351.] Existing suits. No witness to be excluded by reason of interest.

No person offered as a witness, shall be excluded by reason of his interest in the event of the action.

a. The words “ interest in the event of the action" in section 398, do not mean "an interest in any event of the action, but an interest in the event as respects the party who calls him (the witness) as a witness.Holman v. Dord, 1 Code Rep., N. S., 331 ; 12 Barb., 336. See note to section 399.

$ 399. [352.] (Amended 1851.) Existing suits. To whom last section inapplicable.

(1.) The last section shall not apply to a party to the action,

*b. The sections in this chapter are taken from an English statute. (6 & 7 Victoria, cap. 85.) A reference to and extract from the statute, and a collection of decisions in the courts of England thereon, will be found 1 Code Rep., 55. See also an article on the “Exclusion of witnesses on the ground of interest,-Examination of the adverse party,” 4 Western Law Journal, N. S. 326; and see 8 Weslera Law Jour., 511.

c. No minister of the gospel, or priest of any denomination whatsoever, shall be allowed to disclose any confessions made to him, in his professional character, in the course of discipline enjoined by the rules or practice of such denomination (2 R. S. 503, sec. 91.)

d. No person duly authorized to practice physic or surgery, shall be allowed to disclose any information which he may have acquired in attending any patient, in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon. (Id sec. 92). But a physician, consulted as to the means of doing an unlawful act, such as procuring an abortion, is not excused from answering. 21 Wend. 79. The statute does not prevent the physician of a deceased person giving evidence in a testamentary cause, concer the probate of the will of such decedent. The statute does not establish a general and absolute prohibition of such testimony in all cases, but secures a personal privilege to the party, or his representatives, which may be waived; and if such privilege be waived, the witness cannot object to testify. In the matter of the will of Harrison, deceased, 1 Bradford's Surrogate Rep., 221.

nor to any person for whose immediate benefit it is prosecuted or defended.* (2.) When an assignor of a thing in action or contract is examined as a witness, on behalf of any person deriving title through or from him, the adverse party may offer himself as a witness to the same matter in his own behalf, and shall be so received. (3.) But such assignor shall not be admitted to be examined in behalf of any person deriving title through or from him, against an assignee or an executor or administrator, unless the other party to such contract or thing in action, whom the defendant or plaintiff represents, is living, and his testimony can be procured for such examination, nor unless at least ten days' notice of such intended examination of the assignor, specifying the points upon which he is intended to be examined, shall be given in writing to the adverse party.

a. So much of this section as follows the asterisk is substituted for the words nor to any assig nor of a thing in action assigned for the purpose of making him a witness."

6. Under this section, prior to amendment, it was well settled that the assignor of a chose in action, who made the assignment for the purpose of being a witness, was not thereby rendered incompetent as a witness for the plaintiff if the assignment was bona fide, and the assignor had really parted with his interest in the thing assigned. Hamilton Plank Road Co. v. Rice, 1 Code Rep., 108; Evarts v. Palmer, 3 Code Rep., 51.

C. “The operation of section 399 should not be enlarged by judicial construc. tion." Brown, J., in Van Wicklen v. Paulson, 14 Barb. 657.

d. This section is applicable as a rule of evidence to actions in justices' courts. Falon v. Keese, 8 Pr. R., 341; Gates v. Ward, 17 Barb., 427; Collins v. Knapp, 18, ib., 532; contra, Warren v. Helmer, 8 Pr. R., 419, Kingsley, Co. Judge.

e. This section does not apply to proceedings before a surrogate. Woodruff v. Cox, 2 Bradford Sur. Rep., 224.

f. This section does not extend to cases of habeas corpus. Re Belt, 1 Parker's Crim. R., 169.

g. This section applies to actions on contracts made before the code took effect. Neas v. Mercer, 15 Barb., 318.

Note to the first clause of this section. h. The first clause of section 399, embraces only persons who are so connected with the action as to render them virtually parties to the litigation. Strong, J., Neas v. Mercer, 15 Barb., 322.

į. The disqualification of a party to the action as a witness, on the ground of inte est, applies as well to the adverse party as to the party offering his testimony in his own behalf.” Hollenbeck v. Van Valkenburg, 1 Code Rep. N. S., 33.

means “any party” to the action. And therefore the plaintiff cannot call as a witness one of the defendants who has an interest in favor of the plaintiff. Ib.

j. But in an action against several defendants, to set aside a deed as fraudulent, a defendaut who has suffered judgment to be entered against him for want of an

"A party

answer, may be called as a witness on behalf of the plaintiff. Leach v. Kelsey, 7 Barb., 466.

a. A consistent interpretation must be given to sections 398 and 399 ; and this can only be done by construing section 399 not as superseding the general rule which section 398 prescribes, but merely as excepting certain cases from its future app'ication; and the proper inquiry is how shall the cases thus excepted be limited so as to leave ample scope for the operation of the general rule, that the interest of a witness in the event shall not exclude him. *** The exception in 397, must be confined to those who are in reality parties to the suit, that is, are either parties on the record, or parties in interest. The words in the section parties to the action, I construe as meaning only a party on the record, and those which immediately follow, nor to any person for whose immediate benefit it is prosecuted or defended, as applying exclusively to a person who is a party in interest, and who as such will in law be effectually concluded by any judgment that may be rendered, as a party to the record. The latter words thus construed, will be found to embrace two classes of cases. First, where the party on the record calling the witness is a nominal party only and the real interest in the suit is in the witness, as when the party is a trustee and the witness a cestui que trust, who will either have an immediate right to the money that may be recovered by the party calling him, or sustain an immediate and necessary loss from an adverse judgment; and second, when the party calling the witness, although not merely nominal, yet prosecutes or defends the suit at the request of and under a positive indemnity from the witness. Per Duer, J. Catlin v. Hansen, 1 Duer, 309.

6. A debtor who has voluntarily assigned his property to assignees for the payment of his debts, is a competent witness in an action brought or defended by his assignees in relation to his estate. Such a suit is not prosecuted or defended for his immediate benefit.! Davies v. Cram, 4 Sand., 355; Dar is v. Crabtree (Gen. Term Superior Court); Symonds v. Peck, 10 Pr. R. 395; Allen v. Franklin F. 1. Co., 9 ib., 501; Winthrop v. Meyer, 1 Abbott, 385; contra, Hoffman v. Stevens, 2 Code Rep. 16; Fitch v. Bates, 11 Barb. 471; Legee v. Burbank, N. Y. Com. Pleas Gen'l. Term, Feb. 1854.

c. There may be exceptions, as where there is but a single creditor, who would be entitled to the whole proceeds of the recovery, and where the subject matter in controversy involves the whole of the assigned estate (Davies v. Cram, 4 Sand., 355); and it has been since held that a sole cestui que trust, who as such will be entitled to the whole or a definite portion of the amount for the recovery of which the action is brought, is not a competent witness for the plaintiff. St. John v. Amer. Mut. Life Ins. Co., 2 Duer, 419.

d. The fact that an assignor of a chose in action has covenanted with the as. signee that the full amount of the claim is due, does not render him incompetent as a witness for the assignee in an action to recover such chose in action. Winthrop 5. Meyer, 1 Abbott, 385.

e. Where the assignee of a cause of action, in consideration of the assignment agreed with the assignor that when the cause of action was collected he would pay to the assignor $50 ; in an action by such assignee to recover the claim so assigned, held by Harris, J., that the assignor was a competent witness for the assignee. Davison v. Miner, 9 Pr. R., 524.

f. N. having recovered two judgments against H., resorted to proceedings sup. plementary to the execution, and procured the appointment of V. as receiver, and an order that the property of H. be applied towards the satisfaction of the judg. ments. H. made an assignment to the receiver in the usual form. In an action brought by V., as receiver, against the debtor of H., held that H.was not a competent witness to establish the claim against the defendant, on the ground that the action was prosecuted for his immediate benefit. Van Duzen v. Worrell, 18 Barb., 40

g. An assigneo in trust for the benefit of creditors, who prosecutes an action for the recovery of possession of premises included in the assignment, may have the benefit of the testimony of the assignor whether the latter is a party defendant or not. Although the assignor may be interested, yet the action is not one prosecuted for his immediate benefit. Symonds v. Peck, 10 Pr. R., 395.


a. A stockholder of a corporation is a competent witness for such corporation in an action in which such corporation is plaintiff, and in which such stockholder is not individually named as a party. (Montgomery County Bank v. Marsh, 3 Selden, 485.) He is not a party to the action nor a person for whose immediate benefit the action is prosecuted. And Pack v. Mayor of New York, 3 Coms., 489; Washing, ton Bank v. Palmer, 2 Sand., 686 ; New York and Erie R. R. v. Cook, ib., 732, were cited and approved (ib.). Aud' to the same effect is the case Charleston Bank v. Emeric, 2 Sand., 718; contra, Bank of Ithaca v. Bean, 1 Code Rep. 133.

b. In an action against the Mayor, Aldermen, &c., of the city of New York, one of the aldermen may be called by the defence as a witness. Pack v. Mayor, gc., of New York, 3 Coms., 489.

6. In an action against the defendant for levying as sheriff on personal property, claimed by the defendant to be his, on an execution against a third party,—the plaintiff in the execution, who had indemnified the sheriff for making such levy, is not a competent witness for the defendant. Howland v. Willetts (Court of Appeals, Dec. 1853), referred to, 1 Duer, 325.

d. A witness who for a valid consideration has agreed to indemnify the defendant, by whom he is called, is incompetent to be a witness ; he is a person for whose immediate benefit the action is defended. Catlin v. Hansen, 1 Duer, 309.

e. Where on the trial of an action in which the defendant was sought to be charged as the endorser of a promissory note, J. M. was offered as a witness on his behalf, and was rejected on the ground that he had guaranteed the payment of the note if the endorsement should be proved to be genuine, and had deposited the sum due on the note in the hands of a third person, under an agreement that it should be paid over to the plaintiffs in the event of their obtaining a verdict; held on motion for a new trial that J. M. ought to have been received as a witness; he was interested, but not a person for whose immediate benefit the action was defended; it would have been otherwise if the money deposited was to be applied to the satisfaction of any judgment obtained against the defendant. Van Wyck v. McIntosh, 2 Duer, 86.

f. An agent is a competent witness against his principal, although the effect of his testimony is to discharge himself from a written contract which he has entered into in his own name, and to charge the principal as party to the cou tract. Fenly v. Stewart, 5 Sand., 101.

g. The widow of an intestate in an action brought by the administrator for the recovery of a debt due to the estate is a competent witness. The suit is not for her immediate benefit within the meaning of those words in the code. Megary v. Funtis, 5 Sand., 376.

h. One of several co-executors, who are joint defendants in a suit, is not a competent witness for his co-defendants; for where a party is so situated that his testimony must necessarily accrue to his own benefit, and operate in his own behalf as well as that of his co-defendants, he cannot be examined as a witness for them and he can be so examined only when his testimony can be used for the other parties without being available to him. Fort v. Gooding's Er'rs, Court of Appeals, Oct., 1852.

i. In an action against two persons, as acceptors of a bill of exchange, it ap. peared that the bill was accepted by the defendants in the name of " Canning, Pearson & Co.," and that at the time of the acceptance the firm of “ Canning, Pearson & Co.” consisted of the defendants sued and one A. W. Pearson ; and that since the acceptance of said bill, said firm had dissolved partnership,-held that A. W. Pearson was a competent witness for the acceptors sued. Bean v. Canning, 10 Leg. Obs. 248; and per Woodruff, J., “ To my mind it seems that as to a witness offered by a defendant where the plaintiff cannot have execution of his judgment against the witness himself, nor against property to which he has the legal or equitable title, the suit cannot be said to be defended for his immediate benefit; or perhaps it would be better to say, that where the judgment does not by its own force, unaided by any additional or extrinsic fact, entitle the plaintiff to have property of the proposed witness in satisfaction, the witness is not incompetent ; for if the plaintiff in order to obtain such property of the witness will be compelled not only to




show the judgment, but also to show a liability arising out of some relation of the witness to the claim, which the judgment neither proves nor implies, the benefit to the witness is not immediate but contingent, or at most only consequential." Ib.

a. A guardian ad litem for an infant plaintiff is not a competent witness for the plaintiff, Hahn v. Van Doren, 1 Smith, 411. (The ground for this decision was that the guardian ad litem was a party to the action ; but it may well be doubted if a guardian is a party to the suit. In Darrin v. Shields (Court of Appeals, Dec., 1852) it was decided, that one acting as guardian of an infant plaintiff is not a party to the suit so as to be bound by the decree.]

6. In an action to recover damages for injuries sustained by a collision of vessels, the captain of the defendant's ship is not disqualified as a witness for the defendant on the ground that he would be responsible for a loss occasioned by a collision. Such an interest in the event may affect his credibility, but not his competency. Crary v. Marshall, 1 Smith, 530.

c. In a proceeding under the mechanics' lien law by an employee of a sub-contractor, to foreclose a lien claimed by such employee against the owner, such sub-contractor is a competent witness for the owner to defeat a recovery. N. Y. Common Pleas General Term, February, 1854, per Woodruff, J., in Cusack v. Tomlinson.

d. Where a witness is objected to, as incompetent, if the objection is on the ground of interest, that must be stated as the ground of objection, and the nature of the interest be stated, so that the adverse party may have an opportunity to remove the objection. And where the objection is not taken on the trial or hearing before 3 referee, it will be considered as waived. Leach v. Kelsey, 7 Barb., 466; and wbere a person who is directly interested in favor of the plaintiff in a cause, is called and examined as a witness by the defendant, the objection to his competency is thereby waived, and he is made a witness generally in the cause. Combs v. Bateman, 10 Barb., 573.

"In a case at the Ulster circuit, where an executor was a party, a person interested in the estate was admitted by me to testify. But one case has occurred to my mind in which I think this statute is applicable, and that is the case of a tenant sued in ejectment to try his landlord's title. The question is not free from doubt." Parker, J., in Farmers and Mechanics' Bank v. Paddock, 1 Code Rep., 81.

f. In an action tried before Chief Justice Oakley, brought by trustees appointed under the revised statutes, relating to attachment against non-resident debtors, the chief justice decided, that an attaching creditor was not a competent witness for the trustees; that he was not competent under the 398th section, but fell within the provisions of the 399th section ; that he must be excluded on the groond that he was a person for whose immediate benefit the action was prosecuted. 3 Code Rep., 24.

It may be stated as a safe rule, to regard those only as immediately benefited who though not named as parties, may nevertheless be examined as such under section 396, by the party adverse in interest.” Weston v. Hatch, 6 Pr. R... 444.

h. Upon the final settlement of the accounts of executors before the surrogate, leg. atees, who have appeared by their coupsel before the surrogate, and are contesting the executor's accounts, are not competent witnesses, although, when being offered as witnesses, they have released their claim upon the estate. Mesick v. Mesick, 7 Barb., 120. But a legates who has been paid the full amount of his legacy, and has executed to his executors a receipt in full, is a competent witness. Ib.

i. Where an attachment against a non-resident was issued under the revised statutes, and the property attached has been discharged on a bond given pursuant to the statute, the defendant in the attachment is not a competent witness for the obligors in the bond, in a suit upon the bond. Nor can he be made a competent witness by a release from such obligors. Mitchell v. Weed, 1 Code Rep. N. S., 196.

j. In an action against an executor for work, labor, and services done for the decedent, a residuary legatee under the will is a competent witness for the executor. The witness has not such an immediate benefit in the action as would authorize his examination under section 396 of the code. Weston v. Hatch, 6 Pr. R., 443.

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