to him by the adverse party, or necessary to explain or qualify his answers thereto, or discharge when his answers would charge himself, such adverse party may offer himself as a witness on his own behalf, in respect to such new matter, and shall be so received.

This section is identical with section 349 of the code of 1848; and under that section in a case where the defendant on the trial of a cause called the plaintiff as a witness, and in reply to a question put to him by the court, the plaintiff testified to new matter, going beyond the point to which he was examined by his adversary, it was held, that the defendant was entitled to offer himself as a witness for the purpose of answering such new matter. Myers v. McCarthy, 2 Sand. S. C. R., 399. And see section 393.

$396. [350.] Existing suits. Persons for whom action is brought, or defended, may be examined.-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.

Who are regarded as "persons for whose immediate benefit a suit is prosecuted or defended"! See note to section 399.

§ 397. (Amended 1851-1852.) Existing suits. Examination of co-plaintiff, or co-defendant.-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 behalf of the party examined. And whenever in the case 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.

This section before the amendment of 1851 was as follows: A party may be examined on behalf of his co-plaintiff or co-defendant; but the examination thus taken shall not be used on behalf of the party examined. And whenever, in the case mentioned in sections 390 and 391, one of 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 themselves as witnesses to the same cause of action or defence, and shall be so received.

The amendment of 1852 was the insertion of the part printed in italic in lieu of these words "unless he is examined at the instance of the adverse party."

In an action on a promissory note made by the defendants, who were partners, the defence was usury, and after the plaintiffs had proved their case, counsel for the defence offered Wilbur, one of the defendants, as a witness for his co-defendant.

The plaintiffs objected to Wilbur's being admitted to testify, and the court, Parker, J., under the code of 1849, sustained the objection. Farmers' and Mechanics' Bank v. Wilbur and Radley, 2 Code Rep., 33. But the general term held otherwise, and granted a new trial. 1 Code Rep. N. S., 61.

In an action for a breach of contract, alleged by the plaintiffs to be the joint contract of the defendants, Doe and Roe, one of the defendants (Doe) made no answer, and judgment for want of an answer was taken against him; the other defendant answered separately, denying that the contract declared on was the joint contract of him and the other defendant. On the trial Doe was examined as a witness for the plaintiff, and testified that the contract was made jointly by him and the other defendant Roe. When the plaintiff' had closed his case, the defendant Roe was offered as a witness on his own behalf, for the purpose of contradicting the evidence of Doe, and testifying that the alleged contract was not the joint contract of the defendants: the admission of this evidence was objected to by the plaintiff'; but the objection was overruled, the evidence received, and the defendant Roe had a verdict in his favor. Comstock v. Doe, 2 Code Rep., 140. Comstock v. Bayard,

2 Sand. S. C. R., 705.

In actions for a tort commenced before the code, a defendant on whom process was not served, and who has not appeared, cannot be a witness for a co-defendant whom he is liable to indemnify in case of a recovery. Dodge v. Averill, 5 Pr. R., 8.

Such a defendant is nominally a party to the action and interested. Ib. And per Hand, J., I do not think section 397 removes the objection. If that section ap. plies to what were actions at law at all, it is qualified by section 399. Ib.

One of 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 one in which the moving defendant could examine his co-defendant as a witness on the trial. The court denied the motion. Merrifield v. Cooley, 4 Pr. R., 272.

It was the manifest intent of the framers of the code to preserve substantially the benefits derived from the practice of examining parties in chancery; and the first clause of this section was intended as a substitute for the practice of examining parties as that practice was understood in the late court of chancery. Per Gridley, J., in Munson v. Hagerman, 5 Pr. R., 223; 10 Barb. S. C. R, 112. And one of two defendants charged with a joint offence cannot be a witness for the other. Ib. In Parsons v. Pierce, 3 Code Rep., 177; and Finch v. Cleveland, 10 Barb. S. C. R., 290; it was held that in actions for tort commenced under the code, one defendant may be called as a witness on behalf of his co-defendant. And in Parsons v. Pierce, it was further held, that in actions commenced before the code went into effect, one defendant may call his co defendant as a witness, but he can testify only to such facts as would entirely acquit the party calling him. He cannot give testimony to affect the amount of damages merely.

In Selkirk v. Waters, 1 Code Rep., N. S., 35, it was held that one co-defendant is a competent witness for another in all joint and several actions whether on contract or tort, and in all actions where a separate judgment could be rendered in favor of the co-defendant, provided the defendant called as a witness is not disqualified by reason of interest.

In Johnson v. Wilson (in note, 1 Code Rep., N. S., 40), the New York common pleas held that one co-defendant could not be examined for another in an action on a joint liability, whether on contract or tort.

In the superior court, Sandford, Mason, and Campbell, J. J., at general term, held, that in an action on a joint and several bond against three defendants, one of them being principal and the others sureties, the parties defendant might be examined as witnesses for each other under this section. Mayor, &c., of N. Y., v. Price, 1 Code Rep. N. S., 85; 4 Sand. S. C. R., 616.

In an action for damages arising from a false warranty, one of several defendants may be called as a witness by and on behalf of his co-defendants. Holman v. Dord, 1 Code Rep. N. S., 331.

See notes to sections 390, 399.

CHAPTER VII.

Examination of Witnesses.*

SECTION 398. No witness to be excluded by reason of interest. 399. To whom last section inapplicable.

§ 398. [351.] Existing suits. No witness to beexcluded by reason of interest.-No person offered as a witness, shall be excluded by reason of his interest in the event of the action.

The words "interest in the event of the action" in section 398, do not mean an interest in any event of the action, but an interest in the event as respects the party who calls him (the witness) as a witness." Holman v. Dord, 1 Code Rep., Ñ. S., 331.

399. [352.] (Amended 1851.) Existing suits. To whom last section inapplicable.-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

*The sections in this chapter are taken from an English statute. (6 & 7 Victoria, Cap. 85.) A reference to, and extract from, the statute, and a collection of decisions in the courts of England thereon, will be found 1 Code Rep., 55. See also an article on the "Exclusion of witnesses on the ground of interest,-Examination of the adverse party." 4 Western Law Journal N. S. 326, and see 8 Western Law Jour., 511.

No minister of the gospel, or priest of any denomination whatsoever, shall be allowed to disclose any confessions made to him, in his professional character, in the course of discipline enjoined by the rules or practice of such denomination, (2 R. S. 503, sec. 91.)

No person duly authorized to practice physic or surgery, shall be allowed to disclose any information which he may have acquired in attending any patient, in a professional character, and which information was necessary to enable him to prescribe for such patient, as a physician, or to do any act for him as a surgeon. (Id. sec. 92.) But a physician, consulted as to the means of doing an unlawful act, such as procuring an abortion, is not excused from answering. 21 Wend. 79. The statute does not prevent the physician of a deceased person giving evidence in a testamentary cause, concerning the probate of the will of such decedent. The statute does not establish a general and absolute prohibition of such testimony in all cases, but secures a personal privilege to the party, or his representatives, which may be waived, and if such privilege be waived, the witness cannot object to testify. In the matter of the will of Harrison, deceased, 1 Bradford's Surrogate Rep., 221.

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

Vide

How.

living, and his testimony can be procured for such examination, Prae. Rep.

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.

So much of this section as follows the asterisk is substituted for the words " nor to any assignor of a thing in action assigned for the purpose of making him a witness,"

Under this section, prior to amendment, it was well settled that the assignor of a chose in action, who made the assignment for the purpose of being a witness, was not thereby rendered incompetent as a witness for the plaintiff if the assignment was bona fide, and the assignor had really parted with his interest in the thing assigned. Hamilton Plank Road Co. v. Rice, 1 Code Rep., 108. Evarts v. Palmer, 3 Code Rep., 51.

Where a demand is transferred merely for the purpose of making the assignor a witness to prove it, the defendant should be allowed to become a witness on the opposite side. Willis v. Underhill, 6 Pr. R., 396.

39

The disqualification of a party to the action as a witness, on the ground of interest, applies as well to the adverse party as to the party offering his testimony in his own behalf. Hollenbeck v. Van Valkenburg, 1 Code Rep. N. S., 33. "A party' means any party" to the action. Ib. And therefore the plaintiff cannot call as a witness one of the defendants who has an interest in favor of the plaintiff. Ib

66

The general term of the supreme court on a motion for a new trial on a bill of exceptions, held, that the president of an incorporated bank, who was also a stockholder in the bank, could not be a witness for the bank in an action by the bank against a third person. President, &c., of Bank of Ithaca v. Bean, 1 Code Rep., 133. This case was decided under the code of 1848.

In the superior court, Mason, J., after advising with Duer and Campbell, Justices, refused to be bound by the decision of the supreme court in President of Bank of Ithaca v. Bean, supra, and held that neither a stockholder in an incorporated company, nor the president, cashier, or notary of such company, being also a stockholder, is a party to an action by such company, nor a person for whose immediate benefit the action is prosecuted, within the meaning of this section; and either is therefore a competent witness for the corporation in an action by such corporation. Washington Bank of Westerly v. Palmer, 2 Sand. S. C. R., 686. And the same was held in the same court by Oakely, Ch. J., and Paine, J., in N. Y. & Erie R. R. Co. v. Cook, Ib. 732.

The principle of these decisions was affirmed by Duer, Mason, and Campbell, JJ., in Davies & Assignees of Wilder v. Crabtree, not reported, at a general term of the superior court in December, 1850. The point decided in this last case being that the assignor in a voluntary assignment for the benefit of creditors, was a competent witness in a suit brought by his assignees. In Charleston Bank v. Emeric, 2 Sand. S. C. R., 718, the court said, "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."

In another case the superior court held, that an insolvent debtor who has assigned his property to assignees for the payment of his debts, is a competent witness in an action brought or defended by his assignees in relation to his estate. Davies v. Cram, 4 Sand. S. C. R., 355.

Such a suit is not prosecuted or defended for his immediate benefit within the meaning of the code. Ib.

As a general rule, a creditor of the insolvent debtor is also a competent witness in such a suit, though it is possible there may be exceptions, as where there is but a single creditor, who would be entitled to the whole proceeds of the recovery, and where the subject matter in controversy involves the whole of the assigned estate. lb.

The objection goes to the credibility of the witnesses, rather than to their competency. Ib.

And by the court, Campbell, J.,—

"There can be no doubt that Mr. Wilder (the assignor) is interested in the event of this action; but can it be said that it is prosecuted for his immediate benefit ? The persons first and immediately entitled to the proceeds, are the plaintiffs as his assignees. If, after the payment of his debts, any thing remains, such surplus would go to him. As in case of the stockholders of a bank which has failed, and where the corporation is a party. The stockholders have an interest, for the surplus goes to them; but the debts must be first paid, and the action in the name of the corporation cannot be said to be for the immediate benefit of the stockholders. Their interest is contingent and possible, not direct or immediate. What is immediate benefit? The word immediate, according to Webster, is defined, acting without a medium, or without the intervention of another cause or means, producing its effect by its own direct agency.' A recovery in this action would benefit the witness only in the event the proceeds were applied by the assignees to the payment of his debts. The benefit must be produced by or through the agency of others."

Adverse to these decisions is Hoffman v. Stevens, 2 Code Rep., 16, but that case must be regarded as overruled.

In an action on a promissory note the defence was that the plaintiffs were not the true owners. For the defence, one Eames was called as a witness, and objected to by the plaintiff. Eames being examined on his voir dire testified that he was the owner of the note, that he had given notice of that fact to the defendant, and indemnified him against the expense of defending the suit. The court admitted the witness, and on the ground that the fact of his having indemnified the defendant, did not make him a party to the action nor a person for whose immediate benefit the action was defended. Farmers' and Mechanics' Bank v. Paddock, 1 Code Rep., 81. "In a case at the Ulster circuit, where an executor was a party, a person interested in the estate was admitted by me (Parker, J.) to testify. But one case has occurred to my mind in which I think this statute is applicable, that is the case of a tenant sued in ejectment to try his landlord's title. The question is not free from doubt." Ib. And see Sage v. Robinson, 1 Code Rep., 55.

In an action tried before Chief Justice Oakley, brought by trustees appointed under the revised statutes, relating to attachment against non-resident debtors, the chief justice decided that an attaching creditor was not a competent witness for the trustees-that he was not competent under the 398th section of the code of 1849, but fell within the provisions of the 399th section of the code-that he must be excluded on the ground that he was a person for whose immediate benefit the action was prosecuted. His honor remarked, that the questions arising under the code relating to evidence were very perplexing and embarrassing to the cause, and it was difficult to apply them; that as the law of evidence stood before the code, there could be no doubt of the incompetency of the witness; and that if he did not fall within the exceptions contained in the 399th section of the code, he could hardly conceive of a case that would. 3 Code Rep., 24. And see note to section 397.

"It may be stated as a safe rule, to regard those only as immediately benefited, who, though not named as parties, may nevertheless be examined as such under section 396, by the party adverse in interest." Weston v. Hatch, 6 Pr. R., 444.

Where a witness is objected to, as incompetent, if the objection is on the ground of interest, that must be stated as the ground of objection, and the nature of the interest be stated, so that the adverse party may have an opportunity to remove the objection. And where the objection is not taken, on the trial or hearing before a referee, it will be considered as waived. Leach v. Kelsey, 7 Barb. S. C. R., 466; and where a person who is directly interested in favor of the plaintiff in a cause, is called and examined as a witness by the defendant, the objection to his competency is thereby waived, and he is made a witness generally in the cause. Combs v. Bate man, 10 Barb. S. C. R., 573.

It has not been held that a more stringent rule prevails under the code than