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, &c., 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.

BOOK VIII.

OF TRIAL, AND CONSEQUENT PROCEEDINGS BEFORE ENTRY OF JUDGMENT.

CHAPTER I.

OF TRIAL IN GENERAL.

THE mode of joinder of issue, and the preparations for bringing the cause forward for adjudication, having thus been considered, the next subject is the actual trial of that issue, whether of law or of fact.

The following definition of trial is given by sec. 252 of the Code, as last amended:

§ 252. A trial is the judicial examination of the issues between the parties, whether they be issues of law or of fact.

In the Code of 1851 this definition was omitted; but it is now restored, as it stood in the measure of 1849. A similar restoration has taken place with reference to the trial of issues of law, which, by the Code of 1851, was taken from the single judge, and given to the general term, unless by special direction of the court. The inconveniences of this change were so obvious, that the Supreme Court of the first district, and the New York Common Pleas, both abrogated it, in effect, by special rules, amounting to a continuance of the previous practice; and the Legislature has now readopted the same view.

The issue of law is, from its very nature, triable by the court alone, without the intervention of a jury.-V. sec. 252. It may, however, be referred, by consent, under sec. 270. The provision in sec. 252 runs, that it may be referred, as provided by secs. 270 and 271; but this is a manifest error of the Legislature, the latter section being totally inapplicable to such cases.

In reference to mixed issues, those, i. e. where a demurrable objection has been raised by answer, owing to the necessity of statements of fact to make that objection apparent, a question has been raised in The Farmers' Loan and Trust Company v. Hunt, 1 C. R. (N. S.) 1, as to whether such issues may not properly be looked upon in the light of issues of law, even when the facts in question are controverted, so far as to entitle the parties to bring them to an early decision, without waiting for the trial of the issues of fact; and a reference, according to the old Chancery practice, was suggested by the court, as a means of overcoming the difficulty. The case having, however, gone off upon another point, that in question was not directly passed upon, and there seems reason to doubt the soundness of the conclusion. The two issues of law and of fact, respectively, seem, under such circumstances, to be mutually dependent upon each other, and inseparable in their consideration. If, however, the facts on which the objection is grounded be, on the contrary, admitted, either directly or by non-denial, it might then well be contended, that, by such admission, a pure issue of law has been practically raised, and should be tried accordingly.

We now proceed to the trial of the issue of fact, either pure or mixed, for which three modes are open. Such issue may be tried1. By a jury.

2. By the court.

3. By referees: which modes of trial will be considered seriatim. The trial by referees, unless such reference be made by consent, is only applicable to those cases in which the examination of a long account is involved.-V. Code, sec. 270. Trial by the court, or by a jury, are the courses more usual in practice.

Of these, trial by jury may be said to form the rule, and trial by the court the exception. The former may, however, be waived, by consent of the parties, or by failure to appear.-V. sec. 266.

The following are the provisions of the Code, as contained in secs. 253 to 255, inclusive, defining the instances to which trial by jury, or trial by the court, are respectively peculiarly applicable:

§ 253. An issue of law must be tried by the court, unless it be referred, as provided in sections two hundred and seventy and two hundred and seventy-one. An issue of fact in an action for the recovery of money only, or of specific real or personal property, or for a divorce from the marriage contract on the ground of adultery, must be tried by a jury, unless a jury trial be waived, as provided in section two