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"It has been said that the effect of this rule is to allow several defendants, by mutually becoming witnesses for each other, to exonerate each other from liability. There is much force in this consideration, but it goes only to the question of credibility, it cannot affect the competency of the witness." The learned judge, after laying down that such testimony ought, however, to be received with extreme caution, held, in conclusion, that the evidence of co-defendants, in that action, had been erroneously excluded on the circuit, and that such testimony "should have been received, and submitted to the jury, with particular instructions as to its legal effect, and proper cautions as to the weight to be attached to it ;" and, this opinion being concurred in by Watson J., a new trial was accordingly ordered.
The above opinion was, however, dissented from by Parker J., as regards the circumstances of that peculiar case, though the general doctrine, that every defendant is a competent witness for a co-defendant, to prove any defence personal to that ` / co-defendant, and in which the witness is not interested, as laid down by the same judge, in Selkirk v. Waters, before cited, is distinctly asserted. The ground of dissent was, that, in that case, the contract was a joint contract, on which no several judgment could properly be entered, and the defence a joint defence, going to the entire demand; and there seems to be irresistible force in that reasoning, as regards the particular defence there in question, inasmuch as usury, if proved, rendered the instrument sued on invalid and void as against all the parties, it appearing to have been jointly made and jointly discounted; and, therefore, each defendant examined, had a distinct and positive interest in establishing that defence, because, by doing so, he would exonerate, not merely his co-defendant, but himself also.
In Holman v. Dord, 1 C. R. (N. S.) 331, a defendant in an action for a false warranty, was held to be a competent witness on behalf of his co-defendant. The words "interest in the event of the action," in sec. 398, do not mean, in this connection,
an interest in any event of the action, but an interest in the event, as respects the party who calls him as witness." It was considered that, in that case, the party examined could not be benefitted by his co-defendant's discharge, but that, on the contrary, he might have an interest the other way, as the greater the number of parties contributing to the payment of the judgment, the better for him. The witness was accordingly held
to be competent, on the above, and also on the further ground that the case was one in which a separate judgment might be rendered.
In Ladue v. Van Vechten, 8 Barb. S. C. R. 664, it was held that the competency or incompetency of parties to testify, will depend upon their relation to each other, by their contract, and not on that existing between them as parties to the same action. The test will be as to whether or not such parties may be sued severally. If so, their testimony will be competent, and they will not be disqualified by being joined as defendants. It was also considered that, whenever an action might be maintained without joining a party, his testimony might possibly be received. An unreported decision of Blodget v. Morris, to the same effect, is referred to in the report.
It will be seen that the law as to the examination of parties is now distinctly laid down by section 397, as amended in accordance with the general spirit of the cases above cited, overruling, on the one hand, Munson v. Hagerman, and the decisions of that class, and the peculiar views of the majority in the Mechanics' and Farmers Bank v. Rider, on the other.
Co-plaintiffs and co-defendants are now, as a general rule, examinable in all cases, but in no case can their testimony be taken where they are jointly interested, or jointly liable with the party who calls them. See, also, Fort v. Gooding, below cited. The test by which the admissibility of their evidence will henceforth be tried, will probably be the measure of relief sought by the plaintiff, and whether such relief be joint or separate in its nature. If he seek separate relief, he seeks it subject to the disadvantage of the opposite parties being competent witnesses for each other. If he confine himself to the case upon the joint relief, they cannot testify on each other's behalf.
The testimony of a party to the suit, between whom and the plaintiff there was no issue, and who had accordingly put in no answer, was decided in Leach v. Kelsey, 7 Barb. S. C. R. 466, to be admissible, as against his co-defendants. This seems clear, the great doubt has been whether he could testify for them.
In a case where A and B were alleged to be joint contractors, and A, being examined by the plaintiff, swore to such being the fact, it was held to be competent for B to give evidence on his own behalf, for the purpose of contradicting A. -Comstock v. Doe, 2 C. R. 140.
The testimony of a party called as a witness at the trial, may be contradicted by other witnesses. Sec 393 gives sufficient authority for that purpose.-Armstrong v Clark, 2 C. R. 143.
A party cannot be examined on his own behalf, to prove that he made a contract on which he is sued, as agent and not as principal.-Doughty v. Busteed, 3 C. R. 187. "It is sufficient for us to say," observes the learned judge, "that we know of no change in the individual, because he has different characters; he is the same person still, and has no right to be a witness in all the characters he sees fit to assume."
A plaintiff is, it seems, a competent witness to prove the loss or destruction of an instrument sued on, but his affidavit to that effect cannot be received.-McMullin v. Grannis, 10 L. O. 57. A witness, otherwise incompetent, cannot be made the reverse, by the mere fact of being a party to the record.
Thus, in Pillow v. Bushnell, 4 How. 9, it was held that in an action by husband and wife, the defendant cannot require the wife to testify as a witness. "I think it is clear" the learned judge said, "that the object of this statute was simply to remove the technical objection that previously existed, under which a person could not be compelled to testify, because he was a party to the record," and that that was the only disqualification intended to be removed. This can no longer be objected; "but if, there be any other disqualification, it is not removed by the statute." "If," it is said in a subsequent part of the opinion," the statute is to be construed as making every party a competent witness on the call of the adverse party, then it would remove the disqualification of several classes of persons, now incompetent, such as insane persons, idiots, children who do not understand the moral obligation of an oath, and others. This could never have been intended." A motion for a new trial was therefore granted, on the ground that the court had erred in receiving the wife as a witness.
The same doctrine is maintained in Erwin v. Smaller, 2 Sandf. Sup. C. R. 340, and Hasbrouck v. Vandervoort, 9 L. O. 249; 1 C. R. (N. S.) 81. In the latter, the whole law upon the subject is fully gone into, and is summed up by Duer, J., at the close of an able and elaborate opinion, as follows: "The law which has prevailed in this state, and to which we feel ourselves bound to adhere," is, "That husbands and wives are not competent witnesses for or against each other, in any suit in which
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.