Bridges v. Armour
THIS case was brought up, by writ of error, from the District Court of the United States for the Northern District of Mississippi.
On the 26th of 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 per cent. per annum, from the 1st day of August, 1840, until paid.
The note not being paid, a suit was commenced on the 12th 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 coplaintiff 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 the 30th of December, 1842. The discharge was granted on the 12th of 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.
The cause was argued by Mr. Coxe, for the plaintiffs in error, and by Mr. Chalmers, for the defendants in error.
Mr. Coxe contended.--
1. That the deposition of Walker,
Mr. Coxe contended,--plaintiff on the record, was inadmissible.
2. That even if his discharge, under the bankrupt act, could make him a competent witness, it was necessary to establish that fact, as preliminary to the reading of his deposition, and by independent proof.
Walker's name is still upon the record, and he is one of the defendants in error in this court. The general rule upon the subject is clear, and the exceptions are few. The plaintiff in error must bring himself within one of the exceptions. 1 Pet., 596.
The case in 1 Pet., C. C., 307, was overruled by this court in 12 Pet., 145, where it is said that the circuit decision is not to be sustained upon any ground.
The only exception to the general rule is in cases of tort where there are several defendants. The court will direct one to be acquitted, if justice requires it, in order that he may be a witness. 10 Pick. (Mass.), 18; 4 Wend. (N. Y), 453; 1 Bay. (S.C.), 308; 10 Pick. (Mass.), 57; 2 Bay. (S.C.), 427. As to the extinguishment of his interest by the bankruptcy, see 10 Wheat., 367, 375, 384.
An insolvent party cannot be a witness, but a certificated bankrupt may, provided his name be struck out of the record. 9 Cranch (Mass.), 153, 158.
Mr. Chalmers, for defendants in error.
The only question presented upon the record in this case is the competency of Felix Walker, a party to the record, whose deposition had been taken upon interrogatories, by consent, after his discharge under the bankrupt act of Congress, of the 19th of August, 1841. The suit was commenced 20th of November, 1840, by Armour, Lake, & Walker (the witness) against plaintiffs in error; on the 12th of May, 1843, Walker was discharged; and on the 24th of May, 1843, his deposition was taken, which upon the trial plaintiffs in error objected to being read, upon the ground 'that the said Felix Walker is a party to the record,' which objection was overruled by the court, and the deposition was read; to which opinion of the court a bill of exception was taken, and upon it the case is before this court.
It will not be seriously urged that Walker, the witness, was incompetent on the ground of interest, he having received his discharge under the bankrupt act, by which his interest was extinguished and so far his competency restored. For whatever interest he may have had, it was extinguished when he was sworn, and could form no objection to his competency. 1 Phill. Ev., 133, by Cow. & Hill; Tennant v. Strachan, 4 Car. & P., 31; 1 Moo. & M., 377. Indeed, if it did, plaintiffs in error waived the objection by failing to make it when the deposition was taken,-it being known to them at the time. United States v. One Case of Hair-pencils, Paine, 400. So when a witness has been cross-examined by a party with a full knowledge of an objection to his competency, a court of equity will not allow the objection. Flagg v. Mann, 2 Sumn., 486. But the objection was to the competency of Walker as a party to the record.
It is a general rule in all common law courts, that a party on the record cannot be admitted to testify; the reason of this rule is the interest of the party called, and wherever that can be extinguished the rule ceases. In New York the rule, it seems, excludes the party without regard to the question of whether he be interested or not; but see Stein v. Bowman, 13 Pet., 209, 219; Worrall v. Jones, 7 Bing., 395; Aflalo v. Fourdrinier, 6 Id., 306; Bate v. Russell, 1 Moo. & M., 332; Hart v. Heilner, 3 Rawle (Pa.), 407; Scott v. Lloyd, 12 Pet., 145, 149; Henderson v. Anderson, 3 How., 73; Smyth v. Strader, 4 H., 404.
In the case of Willings v. Consequa, 1 Pet., C. C., 307, Washington, J., says 'the general rule of law certainly is, that a party to a suit cannot be a competent witness. But it is equally so, that the interest which that party has in the event of the suit, both as to costs and the subject in dispute, lies at the foundation of the rule, and when that interest is removed the objection ceases to exist.' Mills, J., in Lampton v. Lampton's Executors, 6 Mon. (Ky.), 617, 618. Upon a full view of all the cases,  the counsel for defendants in error respectfully contends, that the District Court did not err in permitting the deposition of the party, Walker, to be read to the jury, upon the ground of interest, or being a party, and that if incompetent for either cause the objection was waived by not having been made at the taking of the deposition.
Mr. Justice NELSON delivered the opinion of the court.
^3 See those collected in 2 Phillips on Ev. by Cowen & Hill, notes, pages 134-136, 260-266; Haswell v. Bussing, 10 Johns. (N. Y.), 128; Schermerhorn v. Schermerhorn, 1 Wend. (N. Y.), 125, citing 3 Esp. & 3 Camp.; Supervisors of Chenango v. Birdsall, 4 Wend. (N. Y.), 453; Duncan v. Watson, 2 Sm. & M. (Miss.), 121; 1 Bing., 444; 6 Binn. (La.), 16; 4 N. Y., 24; 2 Day (Conn.), 404; 11 Mass., 527; 12 Id., 258; 16 Id., 118; 3 Harr. & M. (Va.), 152; 3 Stark. Ev. 1061, note g.