a. In an action on a bond given on the discharge of a foreign attachment, the debtor is not a competent witness for the defendant, inasmuch as he is substantially the real party. Thompson v. Dickerson, 1 Code Rep. N. S., 213.

Note to the second clause of this section.

b. The provision allowing a party to be examined in his own behalf whenever the assignor of the thing in action is examined as a witness by the adverse party, ought not to be restricted to the case of a voluntary assignor. It applies also in cases where the assignment is made in pursuance of law, or by the direction of a court or officer. Gardner v. Clark, 17 Barb., 538.

c. A person selling a note not negotiable, is an assignor of a cause of action. Jagoe v. Alleyn, 16 Barb., 580.

d. Whether an endorser of a negotiable note is an assignor of a cause of action within the meaning of this section-quære? (ib.). Held that he is, Bump v. Van Orsdale, 11 Barb., 634; Potter v. Bushnell, 10 Pr. R., 94.

e. A person selling a promissory note payable to him or bearer, and transferring the same by delivery only [without endorsement] after it became due, is an assignor of a thing in action. Collins v. Knapp, 18 Barb., 532.

f. No matter in what form a demand is transferred, whether by mere delivery, as in case of a promissory note payable to bearer, or by endorsement of a note payable to order, or by verbal or written agreement; the thing itself, the demand, passes from one to the other. Crippin, J. Bump v. Van Orsdale, 11 Barb., 634. In that case the defendant made his note payable to Margaret Norton or bearer. M. Norton transferred the note to Jerusha Van Orsdale, and Jerusha Van Orsdale sold the note to the plaintiff. It was held that Jerusha Van Orsdale was an assignor of a thing in action within the meaning of this section.

g." Whether this section, 399, applies to the cases of negotiable paper at all, is a question we do not feel called upon to discuss. We are clearly of opinion that the case of an endorser delivering a [negotiable] note without his own endorsement, is not within the provision, and he is not an assignor of the cause of action." Watson v. Bailey, 2 Duer, 612; Hoffman, J.

h. An endorser of a negotiable promissory note is not an assignor of a thing in action. Hicks v. Wirth, 10 Pr. R., 555. In this case the action was on a promissory note made by one Kirk, payable to the order of the defendant, and endorsed by Kirk to one Allen, and by Allen endorsed to the plaintiff. On the trial Allen was examined as a witness for the plaintiff. The defendant then tendered himself as a witness, and was admitted-as the appellate court said, improperly-upon the ground that Allen was an assignor of a thing in action. In deciding this case Ingraham, First J., thus reviews the decisions in the supreme court: "There are three cases reported in which this point has been discussed in that [the supreme] court. *** The first case was Bump v. Vun Orsdale (11 Barb., 634). In that case, at general term the doctrine was distinctly stated by the whole court, that the endorser of a negotiable note was an assignor within the meaning of section 399 of the code. This case was followed by Jagoe v. Alleyn (16 Barb., 580), in which case Mr. Justice Strong not only doubts the propriety of the decision in Bump v. Van Orsdale, but rather applies that provision of the code to persons who assign a contract or demand which, at common law, could not be so assigned as to entitle the assignee to maintain a suit at law thereon in his own name. He adds, 'Perhaps it should not have a more extended application.' In that case part of the cause of action was a note not negotiable, and in regard to that note the payee was held to be, within the provisions of this code, an assignor; and the decision was made upon that ground. The last case is that of Potter v. Bushnell (10 Pr. R., 94), in which Mr. Justice Harris shows with much force, that this provision of the code is not applicable to the endorser of negotiable paper. He says that if the question had been presented without the weight of previous authority, he should have been inclined to construe the term [assignor] as applicable only to cases where a right to maintain an action has been given to the assignee. It appears that six of the nine judges who pronounced these opinions were not in favor of the construction adopted in Bump v. Van Orsdale, but on the contrary a majority were of the opinion that the endorser

of a negotiable note was not referred to by the term 'assignor of a thing in action.' I feel, therefore, less hesitation in adopting a different construction, and in following what has, I believe, been the decisions of the judges in this district at nisi prius, where the question has arisen, as it frequently has, since the first of those decisions was made. But I am prepared to go even further, and dissent from the admission of those cases that an endorser is to be considered an assignor of a thing in action. The note is a promise to pay the person named therein, or to his order, a certain sum of money. His endorsement is a draft or order to pay it to another. The legal construction put upon an endorsement is not that it is the assignment of a claim against the maker, but an order or draft upon the maker for the money he has agreed to pay, and it is upon this legal fiction that the law merchant places the liability of the endorser if the maker does not pay the note at maturity. Such a liability never attaches to a mere assignor. The act of endorsing, Chitty says, is equivalent to that of a new drawing. The endorsement of a bill or note is not a mere transfer of the paper; it is a new substantive contract (6 Cranch, 222); it is, in fact, the same as a new bill drawn by the endorser or acceptor [or maker] in favor of the endorsee. (4 Mass., 258.) * * Upon consultation with my brethren, they both concur in the opinion that an endorser is not to be considered an assignor of a thing in action within the proper meaning of that term."

*

a. Rent not yet due is not a chose in action. It is a part of the realty, and passes as such with the estate; and, therefore, where the owner of land executed a lease thereof for a term of years, and during the existence of the term, sold the land to another, and conveyed the same by deed, subject to the lease, the rent which had not yet accrued did not go to the grantee by assignment from the grantor, but he took it as an incident of the estate in reversion; and the right of the grantee to maintain an action in his own name for rent subsequently accruing due, would not depend upon the code, but upon rules of proceeding which existed long before the code took effect. (1 R. S., 739, s. 146; ib., 747, s. 23.) In such a case the grantor is not, therefore, in respect of such rent, the "assignor of a thing in action or contract" within the meaning of the code; and hence, if he is examined as a witness for the plaintiff, in an action brought by such grantee against such lessee for rent accruing due subsequent to the grant, this will not entitle the defendant to offer himself as witness in his own behalf. Van Wicklen v. Paulson, 14 Barb., 654.

b. If an assignor of a thing in action, called to prove the plaintiff's claim and as his witness in the cause, is made the defendant's witness for the purpose of an examination on his voir dire, and testifies to facts showing the plaintiff to be the real party in interest, the defendant is so far bound by his declarations as to preclude an exception to his admission as a witness, although some circumstances of suspicion may attach to the assignment. Briggs v. Evans, 1 Smith, 192.

c. The code does not render a wife a competent witness for or against her husband. Pillow and Wife v. Bushnell, 2 Code Rep., 19, and see also Erwin v. Smaller, 2 Sand., 340.

d. A husband cannot be a witness for his wife's trustee in a suit affecting her separate estate, although she is not a party to the suit, and he has no interest whatever in the event of the suit. Hasbrouck v. Vandervort, 4 Sand., 596; 1 Code Rep. N. S., 81; approved in Court of Appeals, December, 1853.

e In one case it was held that where the wife sues alone for her separate property, her husband is a competent witness for the defendant to prove the marriage of the plaintiff Willis v. Underhill. 6 Pr. R., 396. The soundness of this decision may justly be doubted.

f. Where two persons are sued as husband and wife for work, labor, and materials furnished to the wife, she cannot be examined as a witness. The husband alone is liable. Main v. Stephens and wife, Common Pleas General Term, March, 1855.

g. The rule that excludes a wife from being a witness, only applies where she can be a witness for or against her husband when he is a party to the suit, and the wife of an assignor of the chose in action may be a witness in a suit by the assignee for its recovery. Farley v. Flanagan, 1 Smith, 314.

h. Where, after an assignor of the cause of action has been examined as a

witness by the plaintiff, and the defendant offers himself as a witness in his own behalf, his examination is not limited to the same identical points as to which the assignor has been inquired of, but he may offer himself as a witness to the same matter. Gardner v. Clark, 17 Barb., 538.

a. Where the assignor of the plaintiff is examined as a witness on behalf of the plaintiff, the defendant can offer himself as a witness to the same matter only to which the assignor has been examined. Ward v. Ingraham, 1 Smith, 538.

b. Where the action was by an assignee of a claim for work and labor done for defendant by one Herbert, the plaintiff's assignor, and on the trial Herbert was examined as a witness for the plaintiff, and testified to the performance of the work, its value, and that it amounted in all to $436 09, and that "$350 of that amount had been paid, $86 09 is now due," the defendant tendered himself as a witness to show what payments he had made to Herbert; he was excluded. On appeal it was held that the defendant was improperly excluded; and the court say, Had the plaintiff confined his examination of the assignor to proof of the performance of the work, &c., and its value or amount, the ruling of the justice would have been correct. In such a case an offer by the defendant, expressly limited as this was to proof of payment, would not have been offering himself as a witness to the same matter, but to other and new matter not going at all in denial of the performance of the work, &c., to which the assignor had testified. But the plaintiff did not stop with proof of performance, &c. The assignor upon the plaintiff's examination testified to the amount of payments and that the balance, $86 09, was due. To disprove this, he made the defendant competent; and the offer was to show what payments had in fact been made to Herbert. This was the same matter to which the assignor had been examined. Ward v. Ingraham, 1 Smith, 538.

c. "A party who assigns a claim and becomes a witness to prove it, places himself in a position where his evidence is to be looked at with more doubt than in other cases; and when such person is contradicted on a material matter, he cannot complain that credit is withheld from him." Ingraham, First, J. Watkins v. Cousall, 1 Smith, 66.

d. Where an assignor of the thing in action is offered as a witness, "The proper practice is to offer the defendant as a witness generally. He is to be sworn like any other witness to give testimony in the action. Should it be proposed upon his examination to go beyond the matters embraced in the testimony of the assignor, the evidence, upon objection, would be excluded." Potter v. Bushnell, 10 Pr. R. 96.

Note to the third clause of this section.

e. Notice of examination, when necessary :-It has been held in some cases, that whenever a party intends to call the assignor of a cause of action as a witness, he must give the notice prescribed by this section (Knickerbocker v. Aldrich, 7 Pr. R., 1; Jagoe v. Alleyn, 16 Barb., 580; Pelham v. Bryant, 10 Pr. R., 60; Falon v. Keese, 8 ib., 341); and in other cases it has been held, that no notice is necessary unless the testimony is to be used against an assignee, executor, or administrator. Collins v. Knapp, 18 Barb., 532; Farley v. Flanagan, 1 Smith, 313; Allen v. Franklin Fire Ins. Co., 9 Pr. R., 501; Kerr v. Rice, General Term Common Pleas, February, 1854.

f. Form of notice :-The notice of an intended examination of the assignor of a chose in action or contract, must specify the points upon which it is intended to examine him. Falon v. Keese, 8 Pr. R., 341; and where in an action by an assignee of a cause of action the plaintiff gave notice "that William Keough has assigned to me a contract or agreement made and entered into between you and said Keough, on or about the 10th of April, 1852, whereby, &c. [describing nature of contract]; and further take notice that on the trial of this cause I shall examine the said William Keough on the part of the plaintiff,"-the notice was held insufficient, and that it did not entitle the plaintiff to examine his assignor as a witness; and Hand, J., said, "Not one word is said as to the points or subject upon which the examination is to be. It is not even stated that the suit was brought on the contract that had been assigned, or that any thing was or ever had been due on it. No information was given whether the examination was to be in respect to the making of the contract, or the labor done,

or the payments made, or in relation to the house and garden, or the assignment, nor, indeed, that the examination will be in relation to the contract at all. This practice of assigning demands not negotiable, for the purpose of making the assignor a witness, is liable to great abuses; and there should be, at least, a substantial compliance with the statute." Ib.

Examination of Witnesses and Parties on Commission.

a. The examination of witnesses and parties out of the State, on commission, is provided for by 2 R. S., 4th ed., 638 [393] to 642 [397], and Code, s. 390. The material parts of the statute, and the decisions thereon, are given below.

Commission, in what cases.

b. When an issue of fact has been joined in any action in a court of record, and it appears, on the application of either party, that any witness (or party 2 Sand., 640; 1 Code Rep., 128) not residing within the State, is material in the prosecution or defence of such action, the court may, upon such terms as it shall think proper, award a commission to one or more competent persons, authorizing them, or any one of them, to examine such witness [or party] on oath, upon the interrogatories annexed to such commission, to take and certify the depositions of such witness, and to return the same according to the directions given with such commission.

c. A commission may also issue out of the marine court. (Laws of 1852, p. 647.) d. A commission cannot be allowed in proceedings before referees under a special statute. 18 Wend., 464.

e. A commission may issue to take the testimony of a witness residing out of the State, though his domicil be in this State. 1 Wend., 65.

f. A commission may be also awarded, on the plaintiff's application, after judgment for want of an answer, for the purpose of obtaining such testimony as cannot otherwise be procured.

g. Commissions to take testimony out of the State may be granted either by the court in term, or by a judge at chambers during vacation. But this power cannot be exercised by any recorder of a city, or supreme court commissioner, or judge of any county court.

h. The power to issue a commission to examine witnesses abroad, is an innovation upon the common law, and should be strictly exercised. Dwinelle v. Howland, i Abbott, 87.

i. It is in the discretion of the court to grant or refuse the commission, 4 Sand., 676; 3 Johns. Cas., 137; 2 Sand., 698; 3 Code Rep., 202; and if the opposite party shows any reasonable ground for denying the motion, the court will order the party applying for the commission to disclose by affidavit what he expects to prove (3 Code Rep., 234), and may then, in its discretion, grant the rule either absolutely or conditionally, unless the adverse party will admit the facts sought to be proved, 7 Cow., 369; and he must admit the facts, not that the witness will testify to such facts. 1 Sand., 687.

j. The issuing of a commission to take the testimony of a witness out of the State, though usually directed, is not a matter of strict right, but is in the discretion of the court; and where a commission is likely to produce great injury to the adverse party, terms will be imposed; and in extreme cases the commission will be wholly refused. Ring v. Mott, 2 Sand., 683.

k. "It has always been regarded as very much a matter of course to allow a commission to issue when a party shows that he has a material witness not within the reach of subpœna, unless it is made to appear that the application is not made in good faith. I think the same rule should still prevail, even where the witness to be examined is a party to the action, unless it is made to appear that the examination cannot be received as evidence upon the trial. Where a party swears upon the advice of counsel, that another party who is absent from the State is a material witness, he should be regarded as having made a prima facie case for a commission." Harris, J. Shufelt v. Power, 10 Pr. R., 288.

a. When there shall be a motion or other proceeding in the supreme court in which it shall be necessary for either party to have the deposition of any witness who shall have refused voluntarily to make his deposition, the court may direct a commission to be issued to one or more persons, inhabitants of the county in which such witness resides, to take his testimony. Such witness may be subpoenaed to attend and testify before such commissioners, in the same manner as before referees, and with the like effect; and obedience to such subpœna shall be enforced in the same manner. 2 R. S, 4 ed., 785, ss. 24, 25.

b. One of three defendants, sued jointly in an action on contract, may (at least for some purposes) be a competent witness for his co-defendants; and therefore, where of three defendants in action on contract only two defendants appeared and answered, held, that those two were entitled to a commission to examine the third defendant as witness. Shufelt v. Power, 10 Pr. R. 286.

c. On motion by the defendant to examine the plaintiff as a witness, the latter residing in the State of Pennsylvania, and more than one hundred miles from the city of New York, the superior court said, "There is no doubt that the commission ought to issue in this case," and granted the motion. Brockway or Brockley v. Stanton, 1 Code Rep., 128; 3 Code Rep., 206.

Motion for Commission, when and how made.

d. An application for a commission, in any action at law in the supreme court, to take the testimony of witnesses not residing within this State, may be made in vacation or term time to any justice of the supreme court or county judge at chambers, in the county of his residence, notwithstanding the venue in such cause shall not be laid in the same or an adjoining county. (Laws of 1847, ch. 470, s. 15; 2 R. S., 4 ed., 375, s. 57.) But it is said the moving papers should show affirmatively that the motion is made in the proper district, i. e. in the district in which the cause is to be tried or a county adjoining (Dodge v. Rose, 1 Code Rep., 123); but an order for a commission taken by default, is not a nullity because the motion papers do not disclose the name of the county in which the action is to be tried. If necessary to show the place of trial, it can only be to show that the motion is made in the proper county. Blackman v. Van Inwagen, 1 Code Rep., N. S., 80.

e. The application is founded on an affidavit, stating that the cause is at issue, and the names of the witnesses, except where their names are unknown (2 Hall, 502), and that they are material, as the party is advised by counsel and verily believes, and are without the State. 6 Cow., 299; 2 Johns. Cas., 68, 285; 1 Wend. 65. And if the defendant makes the application, and asks for a stay of proceedings until a return of the commission, but not otherwise (9 Wend., 444), he must swear to merits. 1 Wend., 27; 4 Hill, 534.

f. The affidavit may be made by the attorney (7 Wend., 513); or any third person cognizant of the facts (1 Cow., 210); and when made by the attorney, it need not state the advice of counsel as to the materiality of the witnesses. 7 Wend., 513.

g. The notice of motion should contain the names of the proposed commissioners.

h. The court will not entertain the motion after application therefor has been made to a judge and has been denied. 12 Wend., 202.

i. The motion is non-enumerative.

j. If the motion is made, it should be made as soon after issue joined as practicable, 7 Wend., 513; and when by the defendant, it should be made before notice of trial, otherwise he must pay costs to that time (1 Johns. Cas,, 391), unless it appear that he has used due diligence. 1 Wend., 283; 3 Code Rep., 150.

k. If the bona fides of the application is doubtful, the commission will not be ordered on the common affidavit. 3 Johns. Cas., 137; 7 Wend., 514.

1. One of the several defendants moved for a commission to examine his co-defendant out of the State, as a witness. The affidavit in support of the motion was in the usual form to obtain a commission to examine a foreign witness. It did not disclose the nature of the action, nor any facts to show whether or not the case was