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In Myers v. McCarthy, 2 Sandf. S. C. R. 399, it was held that where a plaintiff, so examined, testifies to new matter in answer to a question put to him by the court, the defendant is equally entitled to tender his own evidence in respect to such new matter. The following provision is made by sec. 396, as regards parties interested in the action:

§ 396. A person for whose immediate benefit the action is prosecuted or defended, though not a party to the action, may be examined as a witness, in the same manner, and subject to the same rules of examination, as if he were named as a party.

A party may also be examined on behalf of his co-plaintiff or co-defendant, under certain restrictions, under sec. 397 as cited in the next chapter.

It was held under the Code of 1848, that co-defendants could not be examined by each other without a special order, as provided by No. 63 of the late Supreme Court Rules, in Equity.— Roberts v. Thompson, 1 C. R. 113; Taylor v. Mairs, 1 C. R. 123.

Under the present provisions, there seems to be no distinction to be drawn between this case and that of a party adversely examined, as regards the form of the proceedings. It might, however, be the more prudent course to obtain an order in all cases, as before noticed. The provisions for enforcing the attendance of such parties, were not in the measure of 1849, but were inserted on the amendment of 1851.

The examination of an assignor of a chose in action, is also specially provided for by sec. 399, as cited in the next chapter. This provision is, however, more peculiarly applicable to an examination upon the actual trial.



To enter into any examination of the law of evidence in general, would clearly be beyond the scope of the present work. The following observations will, therefore, be simply and solely confined to the provisions made by the Code upon that subject,

and to the decisions bearing upon those provisions, without any attempt at its more extended consideration.

The provisions of the Code, in these respects, are as follows: By sec. 397, it is provided as under, in relation to the examination of co-plaintiffs or co-defendants.

§ 397. A party may be examined on behalf of his co-plaintiff, or of a co-defendant, as to any matter in which he is not jointly interested or liable with such co-plaintiff or co-defendant, and as to which a separate and not joint verdict or judgment can be rendered. And he may be compelled to attend in the same manner as at the instance of an adverse party, but the examination thus taken shall not be used in the behalf of the party examined. And whenever, in the cases mentioned in sections three hundred and ninety and three hundred and ninety-one, one of the several plaintiffs or defendants, who are joint contractors, or are united in interest, is examined by the adverse party, the other of such plaintiffs or defendants may offer himself as a witness to the same cause of action or defence, and shall be so received.

The following provisions are made by secs. 398 and 399, in relation to witnesses in general:

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

§ 399. The last section shall not apply to a party to the action, nor to any person for whose immediate benefit it is prosecuted or defended. 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. 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.

An analagous reform to the above has already been accomplished in England, by the Act 6 and 7 Vict. c. 85, from which measure the two last sections, as they stood before the last amendments, were taken almost verbatim. A collection of English decisions upon the subject, will be found at 1 C. R. 55.

The more convenient mode of treating the subject proposed, will be to consider, in the first place, the cases bearing upon the examination of parties as such, and, in the second, those in relation to witnesses in general; although the two subjects are necessarily dependent upon each other, and many of the authorities upon either subject have a double bearing upon both.

Under the Codes of 1848 and 1849, the extent to which the evidence of co-plaintiffs and co-defendants might be made use of, under the powers conferred by sec. 397, became the subject of long and doubtful discussion, and the point remained to a great degree unsettled, until provided for by the recent amendments in that section, although a result in accordance with those amendments was in process of being arrived at.

In Merrifield v. Cooley, 4 How. 272, and The Mechanics and Farmers' Bank v. Wilbur, 2 C. R. 33, the principle now expressly adopted, i. e., that joint contractors or joint debtors cannot be admitted to testify on behalf of each other, and that the propriety or non-propriety of a several judgment being entered, is the proper test by which the admissibility of parties offered as witnesses is to be tried, was distinctly laid down.

It was held in Hollenbeck v. Van Valkenburgh, 5 How. 281, 1 C. R. (N. S.) 33, that a defendant, in the same interest as the plaintiff, could not testify on his behalf. The disqualification on the ground of interest extends to such a case as he is "a party to the action," (sec. 399,) though not, technically speaking, an adverse party. A person who is generally incompetent to testify, may, however, give evidence on points which he has no interest in establishing. The onus probandi in cases of objection to testimony of this description, lies upon the objector.

In Henry v. Henry, 8 Barb. S. C. R. 588, where a judgment confessed by fraud was sought to be set aside, and re-payment of monies received under it obtained, as against the confessee, the evidence of the party who confessed such judgment was rejected, on the ground of his having an interest in having the amount sought to be recovered, applied in extinguishment of the judgment against him.

In Dodge v. Averill, 5 How. 8, it was held that, in an action before the Code, a defendant in tort, upon whom process had not been served, could not be examined on behalf of his codefendant. Section 399 excludes him, said the learned judge, as being a party to the action, and also interested.

In Thompson v. Blanchard, however, 4 Comst. 303, where one defendant in trover had pleaded, and the other suffered judgment by default, the latter was held to be a competent witness against his co-defendant.

In Parsons v. Pierce, 3 C. R. 177, 8 Barb. S. C. R. 655, it was held that, in actions of tort since the Code, a defendant might be called as a witness on behalf of his co-defendant, but his testimony was, in that case, to be confined to facts to go in total exoneration of the party calling him, and he was not to be allowed to testify on the question of damages, in reducing which he had an interest. The decision was that of a majority at general term, Shankland, C. J., dissenting as to the exclusion of the testimony of the particular witness there in question, but not on general grounds. In the course of his opinion, in which the law on the subject is elaborately examined, that learned judge lays down the following general principle: "Upon the fullest consideration, I have no doubt that, in actions commenced since the Code, a plaintiff or defendant may, in all cases, call their fellow plaintiff or defendant to testify to all questions pertinent to the cause, and that judgment may be entered in accordance with the facts, in every diversity of form, as was formerly done by decrees in the court of chancery."

In Munson v. Hagerman, 5 How. 223, it was decided that one of two defendants charged with a joint offence, cannot be a witness for the other. The first clause of sec. 397 was intended as a substitute for the old rule in chancery on the subject, under which, co-defendants in the same interest could not be examined for each other. A similar view appears to have been taken by the N. Y. common pleas, in a case of Johnson v. Wilson, referred to in 1 C. R. (N. S.) p. 40, in note.

In Labar v. Koplin, 4 Comst. 547, it was held that where, on a trial for a joint assault, no evidence appeared against one of the parties, he was entitled to be discharged, for the purpose of being examined as a witness against his co-defendant. If, however, there is any, even the slightest evidence against him, he cannot be so, and the case must go all together to the jury, his evidence of course being inadmissible under such circum


In Selkirk v. Waters, 5 How. 296, 1 C. R. (N. S. )35, the view taken in Parsons v. Pierce is confirmed; and it was held, in opposition to Munson v. Hagerman, that a defendant may be ex

amined as a witness in behalf of his co-defendant, in all cases where a separate judgment may be entered in favor of the latter, and that such co-defendant is, therefore, a competent witness in all joint and several actions, whether on contract or on tort. He is also a competent witness in joint actions, to prove any personal defence admitting of a separate judgment, on behalf of his co-defendant. In no case, however, can his evidence be received, on any matter in the action in which he is interested. either generally, or by way of mitigation of damages for which he is jointly liable. The evidence must, under any circumstances of this kind, be excluded as irrelevant, and the objecion is rather to the relevancy of the evidence, than to the competency of the witness.

In the Mayor of New York v. Price, 9 L. O. 255, 1 C. R (N. S.) 85, the above principle was pushed to the extent of holding that obligees, under a joint and several bond, might be examined as witnesses for each other, inasmuch as, under sec. 136, a several judgment might be taken as against any one of them.

In the President of the Mechanics and Farmer's Bank v. Rider, 5 How. 401, 1 C. R. (N. S.) 61, (an action on a joint promissory note, defended on the ground of usury,) the above conflicting doctrines were brought into full play ; and that held in Parsons v. Pierce, was confirmed by a majority of the court. The following expressions are used by Harris J., in delivering the opinion of the majority: "This, then, I understand to be the intent and import of the 397th section of the Code-any party to any action may be examined as a witness on behalf of any other party, but, when examined on behalf of a co-plaintiff, or co-defendant, his testimony is not to have the same general effect as other testimony in the cause, but is to be applicable only to the issue between the party on whose behalf he is examined, and the adverse party. Such a witness may be excluded on the ground of interest, but, as his testimony can not affect the issue between him and the adverse party, this objection can only be sustained when the party offered as a witness is not only interested in succeeding himself, but also in having the party, by whom he is offered, succeed also. In the ordinary action against joint contractors, like that before us, the witness has no such interest: on the contrary, if he has any interest at all, it is to increase the number of those who are to assist in the payment of the recovery."

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