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either is a party, or in which either has a direct or certain interest." The point may, therefore, be now looked upon as settled. As to the extent to which the testimony of the wife may, or may not be admissible in criminal cases, see The People v. Carpenter, 9 Barb. S. C. R. 580.
In Fort v. Gooding, 9 Barb. S. C. R. 371, the evidence of a co-executor was held to be inadmissible, on behalf of co-defendants in the same capacity. In such a case," all the defendants only represent the testator; no one of them is liable to the plaintiff unless all are, and no evidence can be given in the case which can operate for or against one of them and not the others. The Code cannot apply to a case where a co-defendant cannot give any evidence but that which must of necessity operate in his own favor, as well as in favor of his co-defendants."
The cases above cited have reference to the question of the admissibility of the evidence of parties, considered as such. Those following are more peculiarly applicable to testimony in general, though, in some instances, also bearing upon the former subjects.
An attorney transacting business in the ordinary form, is a competent witness-Little v. Keon, 1 C. R. 4; but, in a case in which his compensation is, by agreement, to depend upon the result of the action, it would seem he is not so.
Agents who had executed a written contract in their own names, were held to be competent witnesses for the plaintiff, in an action against their principal, under the Code as now amended, although the necessary effect of their testimony would be to charge the defendants and discharge themselves, interest in the matter being no longer a ground of exclusion.Stewart v. Fenly, 10 L. O. 40.
Where an action on a promissory note was defended on the ground of a fraudulent transfer to the plaintiff, and the alleged owner had given notice to the defendants not to pay, and indemnified them, it was held that such alleged owner was nevertheless a competent witness. "It would have been necessary," the judge said, "for the defendant to contest this suit, if Eames" -the alleged owner--" had not indemnified him. He is, therefore, the real as well as nominal defendant, and the indemnity does not substitute Eames as the party in interest, to the exclu sion of the defendant. Eames is unquestionably interested, but
that does not disqualify him, under our new law."-Farmers' and Mechanics' Bank v. Paddock, 1 C. R. 81.
In James v. Chalmers, 1 C. R. (N. S.) 413, it was held that a former holder of a promissory note, who had transferred it without recourse or guarantee, was a competent witness for the plaintiff; but that the declarations of such former holder, made while he stood in that character, were not competent evidence against the then owner, to whom it had been transferred in good faith.
An insolvent has been decided, in a county court, to have an immediate benefit in the result of an action brought by his trustees, and must, therefore, be excluded as a witness therein, though it did not appear that any surplus was coming to him. "It is beneficial to him to have his debts paid; and whatever is subtracted from the hands of his assignees, leaves that amount, for which his future effects are liable."-Hoffman v. Stephens, 2 C. R. 16. See, however, the case cited in a Note, 2 Sandf. S. C. R. 690, directly opposed to this decision.
A discharged bankrupt, who has not released his interest in the surplus of his effects, is not a competent witness, in a suit instituted by his sureties to avoid a joint debt against the estate. -Morse v. Crofoot, 4 Comst 114.
A stockholder in a bank was held not to be a competent witness, in an action brought by that bank against a third party. As a member of the corporation, he was a person for whose benefit it was prosecuted.—The President of the Bank of Ithaca v. Bean, 7 L. O. 225; 1 C. R. 133. The witness in that case was the president himself, and, therefore, by name, a party to the action; but the decision is not grounded on this fact, but on the doctrine, as there held, in relation to stockholders in general.
In the Washington Bank of Westerly v. Palmer, however, 2 Sandf. S. C. R. 686, 8 L. O. 92, a directly contrary opinion to that in the last case was pronounced by Mason, J., after advising with Duer and Campbell, J. J. It was there held that a stockholder is neither a party to the suit, nor a person for whose immediate benefit it was prosecuted, and the case last cited is expressly referred to, and dissented from. See also Note, 2 Sandf. p. 690, where it is stated to have been decided that the assignor in a voluntary general assignment for the benefit of creditors, was a competent witness in a suit brought by his assignees, overruling Hoffman v. Stephens, before cited.
The principles laid down in the Washington Bank of Westerly v. Palmer, as above, were still further extended in the Bank of Charleston v. Emeric, 2 Sandf. S. C. R. 718, where a co-defendant, primarily liable for the debt claimed, was decided to be a competent witness. The court, in pronouncing their opinion, state as follows: " That section (399] applies only to a person into whose hands the money collected in the suit will necessarily go, when it is received, or who might take it from the sheriff or the attorney as his own. It does not apply where the money cannot immediately, though it may ultimately, go into his hands, as in the case of a stockholder in a suit brought by a corporation:" and, in the New York and Erie Railroad Company v. Cook, 2 Sandf. S. C. R. 732, an objection having been taken to the testimony of a stockholder, Oakley, C. J., in delivering the judgment of the court, at general term, said: “We have no doubt that Mr. Ketchum"-whose testimony was objected to on the above ground—“ was a competent witness, under the recent provisions of law on the subject.” So far as regards the superior court, therefore, the question may be considered as settled; and it is more than doubtful whether the contrary decision, before cited, is sustainable.
In Pack v. The Mayor, dc., of New York, 3 Comst. 489, it was decided by the court of appeals that an alderman of the city of New York was a competent witness in an action on the case against the Mayor, Aldermen, and Commonalty of that city, in their corporate capacity; reversing a decision of the court of common pleas, by which his testimony had been rejected. The view taken was, that the action was not brought against the individuals composing that corporation, but against the Corporation itself, as a legal entity created by the charter. If otherwise, no inhabitant of the city would be competent to testify. The evidence was decided to be admissible, both under the Code and under the Common Law.
The evidence of a stockholder, who had assigned his stock over to another party, so as to retain no interest in it, was held to be receivable, at all events, even though such assignment had been made for the express purpose of making him a witness.-Hamilton and Deansville Plank Road Company v. Rice, 1 C. R. 108; 7 L. 0.139; 7 Barb. S.C.R. 157. Sec. 399 does not declare, that the assignor of a chose in action shall be incompetent, but that sec. 398 shall not apply to him. “The conclusion is, therefore, that, if the assignor, who has assigned to become a witness, still remains inter
ested in the event of the suit, he shall continue to be incompetent, notwithstanding the provisions of the 398th section. If that section should be applied to such an assignor, he might be a witness, though he remained interested in the event of a suit, as in many cases he does, notwithstanding the assignment. The Code intended to exclude such assignors, if interested; though interest, as a general rule, would not render a witness incompetent. Such an assignor, if divested of his legal interest, would have been competent, under the old law; and it is the policy of the Code to enlarge, and not contract, the rule of competency, as applied to witnesses.”
It will be observed, that sec. 399, as now amended, makes express provision in relation to the examination of such an assignor, concerning which the Codes of 1848 and 1849 were silent.
A similar doctrine to that in the case last cited, was acted upon in Everts v. Palmer, 3 C. R. 51, 7 Barb. S.C. R. 178, where the holder of a note had exchanged it for the note of another party, who then sued upon it; under which circumstances, the original holder was declared to be a good witness, though his testimony to that effect appeared to be open to some suspicion as to the existence of a secret understanding.
In Harris v. Bennett, 6 How. 220, 1 C. R. (N. S.) 203, the court refused to allow the assignee of the plaintiff's interest to be substituted as plaintiff, under sec. 121, unless upon the terms that the then plaintiff should not be examined as a witness, it being evident that the assignment was made for that purpose only.
In a note at 3 C. R. 24, it is stated to have been decided by Oakley, C. J., that, in an action brought by trustees, on an attachment under the Revised Statutes, the attaching creditor is not a competent witness, on the ground that he is a person for whose immediate benefit the action is prosecuted.
This conclusion is supported by Mitchell v. Weed, 6 How. 128, 1 C. R. (N. S.) 196, where it was held, that when such an attachment had been discharged on the defendant's bond, the latter was not a competent witness in an action against his sureties, and could not be made so by a release from the defendants. Thompson v. Dickerson, 1 C. R. (N. S.) 213, is authority to the same effect.
An unpaid legatee, who had appeared by counsel, and contested the executors' accounts, in proceedings before the surrogate, was held to be an incompetent witness, though, at the time his evidence was tendered, he had assigned his legacy. The evidence, however, of a legatee, who has been paid his legacy, and given a receipt to
the executors, is admissible.-Mesick v. Mesick, 7 Barb. S. C. R. 120. See, as to co-executors, Fort v. Gooding, 9 Barb. S. C. R. 371, before cited.
The objection to the competency of a witness, on the ground of interest, must be taken at the proper time, or it will be considered as waived Leach v. Kelsey, 7 Barb. S. C. R. 466, where the general term refused to entertain such an objection, the question not having been raised before the referee.
In Hollenbeck v. Van Valkenburgh, 5 How. 281, 1 C. R. (N. S.) 33, it was held, that the disqualification of sec. 399 extended equally to the case of an adverse party, as to that of one called on his own behalf, if he is interested in the event of the action. He can, however, be examined on formal points, in which he has no interest. In all cases of objections of this nature, the burden of proof rests on the party making them. "Every person is competent to be sworn as a witness, unless his disqualification is affirmatively shown."
In Morss v. Morss, 1 C. R. (N. S.) 374, 10 L. O. 151, it was held, that one of three referees of the cause, was not a competent witness on the trial before himself and his colleagues; the various authorities in analogy to that subject, and in relation to the evident incompetency of judges, and the possible competency of jurors, to give evidence on questions before them, being fully reviewed and considered.