A party upon the record, although divested of all interest in
the event of the suit, is not a competent witness in a cause.
If a person be declared a bankrupt at a time when a suit is
pending to which he is a party, his discharge would not be a bar to
his liability for costs upon a judgment obtained subsequently to
his discharge. His liability for costs, therefore, excludes him as
a witness upon the ground of interest.
If the event of the suit may increase the effects of the
bankrupt in the hands of the assignee, and thus increase the
surplus which would belong to him, he is an incompetent
witness.
On 26 September, 1840, Bridges, Mabray & Co., gave their
promissory note to Armour, Lake & Walker, or order, payable one
day after date, for $3,158.69, being balance of book account,
bearing interest at eight percent per annum, from 1 August, 1840,
until paid.
The note not being paid, a suit was commenced on 12 of November
following. As no question arises upon the pleadings, it will be
unnecessary to refer to them. They resulted in several issues of
fact.
On the trial, in June term, 1844, the plaintiffs offered in
evidence the deposition of Walker, a co-plaintiff on the record,
taken in answer to interrogatories and cross-interrogatories before
a commissioner in New Orleans, in pursuance of a stipulation
between the attorneys, and in which the attorney for the defendants
agreed to waive any exception for want of issuing a commission, in
due form, to take the testimony, or for want of notice of its
execution to the defendants.
It appeared on the trial that Walker had obtained a discharge
under the bankrupt act, by which he was discharged from all his
debts owing by him at the time of presenting his petition, to-wit,
on
Page 46 U. S. 92
30 December, 1842. The discharge was granted on 12 May,
1843.
In one of the interrogatories in chief the question was put to
the witness whether or not he had any interest in the event of the
suit, and, if none, in what manner his interest had ceased. To
which he answered, that he had none, and that his interest ceased
on obtaining his discharge.
The counsel for the defendants objected to the admission of the
deposition, on the ground that Walker was a party to the record,
one of the plaintiffs in the suit, but the objection was overruled,
and the evidence admitted, to which the counsel excepted. The
plaintiffs had a verdict.
Page 46 U. S. 94
MR. JUSTICE NELSON delivered the opinion of the Court.
Whether a party on the record, divested of all interest in the
result of the suit, and therefore unexceptionable on that ground,
is a competent witness or not in the cause, can scarcely be
regarded as an open question in this Court, after what has already
fallen from it.
It is true, as stated by the counsel in the argument, that in
all the cases in which the question has arisen, the party was
liable for the costs of suit, and therefore interested; but
whenever the question has been presented, the language of the court
has been uniform, that the witness was incompetent on the ground of
his being a party on the record;
De Wolf v.
Johnson, 10 Wheat. 367,
23 U. S. 384;
Scott v.
Lloyd, 12 Pet. 145;
Stein v.
Bowman, 13 Pet. 209.
In
Scott v. Lloyd, the Court referred to a case in 1
Pet.C.C. 301, where it had been held, that a party named on the
record might be made a competent witness by a release of his
interest, and expressed its unqualified dissent, and in
Stein v.
Bowman, 13 Pet. 209, in which Bowman, a party, had
been admitted, the Court, after noticing his liability for costs,
remarked that if he had been released or a sum of money sufficient
to cover the costs of suit brought into court, his competency would
not have been restored.
The exclusion is placed on the ground of policy, which forbids a
party from being a witness in his own cause, and that this would be
the practical effect and operation of a rule of evidence which
would enable a party to qualify himself for a witness by releasing
his interest in the suit. Though nominally discharged by the
release, he would usually be the real and substantial party to the
suit in feeling, if not in interest, thereby holding out to
litigants temptations to perjury and to the manufacturing of
witnesses in the administration of justice.
The question is one in respect to which different courts have
entertained different opinions, and we admit that the argument in
favor of the admission of the party, upon the general principles of
evidence governing the competency of witnesses, is plausible and
not without force. But the tribunals which maintain the competency
of the party, if divested of interest, still hold that he cannot be
compelled to testify, and also that he cannot be compelled to
testify when called against his interest, which, upon general
principles, if consistently carried out and allowed to govern the
question in the admission of the party, would lead them to an
opposite result. They should be compelled to testify, for if the
admission is
Page 46 U. S. 95
placed, as it undoubtedly is, upon principles applicable to the
admission and rejection of witnesses generally in the cause, and
the party to be regarded as competent when without interest, or
indifferent, or when called against his interest, then, like all
other witnesses, he should be subject to the writ of subpoena and
to the compulsory process of the court, and not left at liberty to
withhold or bestow his testimony at will.
There can be no distinction in principle in this respect in
favor of a party to the record, if allowed as a witness at all, and
the only ground upon which the court can stop short of going the
length indicated is by giving up general principles and placing
itself upon policy and expediency, as upon the whole best
subserving, in the instances mentioned, the interests of justice
and of all concerned in its administration -- a ground which has
been supposed by those holding a different opinion upon the
question quite sufficient to justify the entire exclusion of the
party.
But the witness in this case is also liable to objection on the
ground of interest. This suit was pending at the time he was
declared a bankrupt and obtained his discharge, and it is quite
clear, if the defendants had eventually succeeded, the discharge
would not have been a bar to his liability for the costs of the
suit. The judgment would have been a debt accruing subsequent to
the discharge, which could not have been proved under the act. Act
of Congress, August 19, 1841, ยง 4, 5 Stat. 443;
Haswell v.
Thorogood, 7 Barn. & C. 705;
Brough v. Adcock, 7
Bing. 650. His future effects, therefore, would have been
liable.
And even if the discharge could have operated in bar of his
liability for the costs, the witness was still interested to
procure a recovery in favor of the plaintiffs, as it would to
increase the effects of his estate in the hands of the assignee to
the extent of his interest in the demand in suit, and to increase
the surplus, if any, which would belong to him.
For this reason, a defendant who has pleaded his certificate,
upon which a
nolle prosequi has been entered by the
plaintiff, is not a competent witness for his codefendant without
first releasing his interest in this fund. He would otherwise be
interested in defeating a recovery of the demand in suit, as he
would thereby diminish the claims upon his joint and separate
property, and thus increase the surplus, if any, in winding up the
estate.
Butcher v. Forman, 6 Hill 583;
Aflalo v.
Fourdrinier, 6 Bing. 306.
On all these grounds, we think the witness was incompetent and
that the deposition should have been rejected.
It has been suggested that the objection to the witness came too
late, and should have been made before the commissioner and before
the cross-examination. But the case shows that both parties were
aware of the legal objections to his competency, and that the
testimony was taken by an arrangement between them, for the
purpose
Page 46 U. S. 96
of presenting the question to the court. The counsel for the
plaintiffs assumed, as is apparent from his interrogatories in
chief, that the witness was incompetent on the ground of his being
a party in interest, and took upon himself the burden of removing
the objections. For this purpose, he produced his discharge in
bankruptcy, and on the 14th inst. put the question to him whether
he had any interest in the suit, and if not, to tell how it had
ceased.
The question suggested does not arise in the case, and therefore
it is unnecessary to examine it.
For the above reasons, we think the court below erred and that
the judgment must be
Reversed with a venire de novo.
Order
This cause came on to be heard on the transcript of the record
from the District Court of the United States for the Northern
District of Mississippi and was argued by counsel. On consideration
whereof it is now here ordered and adjudged by this Court that the
judgment of the said district court in this cause be and the same
is hereby reversed with costs, and that this cause be and the same
is hereby remanded to the said district court with directions to
award a
venire facias de novo.
