when offered against the executor, though it may be explained. or contradicted when offered1 in his behalf, as by such action the representative has opened the door for the adverse party.

The prohibition of the introduction of evidence of a personal transaction with the deceased should be construed, not only to prevent the introduction of direct proof of such a transaction, but to prevent its proof by indirection as well. So the surviving party should not be permitted to attempt to prove the transaction inferentially by offering evidence that some third person did not do the thing which the deceased is alleged to have done, or by disconnecting any particular fact from its surroundings and proving it as a seemingly independent fact, when in truth it originated in, was caused by or was connected with a personal transaction evidence of which is inadmissible.2

3

Whether a transaction is within the statute is a preliminary question for the court, and the witness who is about to testify may be interrogated by the court as to what passed and whether he was a privy to the transaction or was disinterested and merely overheard a conversation of the deceased with some third person. The death of the party whose representative objects to the admission of the evidence may usually be shown prima facie by the letters under which he acts, though if a party sued individually defends as an administrator and claims the statutory privileges of a representative, he must have established his title and representative status in some preliminary proceedings."

§ 310. Persons interested-Their statutory incompetency. In some of the states it is provided by statute that no person whatever who is interested in the event of an action, or any person from whom a party or interested person derives his interest, can testify in his own behalf or in behalf of a party claiming under him against the personal representative of a deceased or insane person as to any personal conversation or transaction with the latter. The interest which

1 Hubbard v. Johnson, 77 Me. 139. 2 Clift v. Moses, 112 N. Y. 426; 21

N. Y. State Rep. 777.

3 Abbott's Trial Ev., 66.

5 Parhan v. Moran, 4 Hun, 717. 6 Prewitt v. Lambert (Colo., 1893), 34 Pac. Rep. 684.

7 New York Civ. Pro., § 829;

4 Isenhour v. Isenhour, 64 N. C. Illinois R. S., ch. 51, sec. 1; Shields

640; Abbott's Trial Ev., 66.

v. Smith (N. C., 1893), 10 S. E. Rep.

will disqualify a witness who is not a party to the action. must be direct, pecuniary and beneficial,1 such as would render him incompetent at common law. So if the witness is equally interested on both sides, or if his interest is very contingent or remote, he will be allowed to testify. An heir, legatee or devisee of a party is an interested person, and hence is incompetent to testify against the representative of a deceased person.5

The term "person from whom the party or interested witness derives his title" includes not only his immediate assignor, but all prior grantors or assignors. An interested witness

may be made competent by absolutely releasing his claims,' though he may be asked if the assignment was made solely to qualify him as a witness; and if it is not a bona fide assignment he will be still incompetent.3

Where the statute expressly refers to parties as incompetent it is held that third persons merely interested in the event are not included thereby. So where those having “adverse interests" are mentioned, witnesses whose interests are not adverse to the deceased may be permitted to testify in behalf of the surviving party.5 The evidence given by a surviving party or by an interested person of personal transactions with the deceased will not be rejected by the court of its own motion, but the objection to the witness, which must specifically point out the grounds,' must be taken by the administrator or other party acting in a representative capacity, and it will be deemed to have been waived if it is not promptly made by him."

Upon the question whether the death or insanity of an agent or other fiduciary representative of a party to a contract will render the testimony of the other party or of an

Stackpole (Mich., 1887), 32 N. W. Eq. 281. Contra, Sherman v. Lanier, Rep. 808. 39 N. J. Eq. 253.

1 O'Brien v. Weiler, 68 Hun, 64; Genet v. Lawyer, 61 Barb. 211; In re Wilson, 103 N. Y. 374; Loder v. Whelpley, 111 id. 239; Brown v. Clock, 5 N. Y. Supp. 245.

2 Buck v. Patterson, 75 Mich. 397. 3 Bonstead v. Cuyler (Pa., 1887), 8 Atl. Rep. 848.

4 Rawson v. Knight, 73 Me. 340; Spencer v. Robbins, 106 Ind. 580; Bassett v. Shepardson, 52 Mich. 3; Wilson v. Russell, 61 N. H. 355; Lytle v. Bond, 40 Vt. 618; Pendell v. Neuberger, 31 N. W. Rep. 177.

5 Gerz v. Weber, 151 Pa. St. 396; Thistlewaite v. Thistlewaite, 132 Ind. 355; Howle v. Edward (Ala., 1893), 11 S. Rep. 748; Hammill v. Sup. Council, 152 Pa. St. 537.

Rowland v. Rowland, 40 N. J.

7 Lewin v. Russell, 42 N. Y. 251. 8 Marcy v. Amazeen, 61 N. H. 133. 9 Parrish v. McNeal (Neb., 1893), 55 N. W. Rep. 222; Norris v. Stewart's Heirs, 105 N. C. 455; 10 S. E. Rep. 912. Cf. Sager v. Dorr, 4 N. Y. S. 568; Dilley v. Love, 61 Md. 607. If the objection is taken before judgment it seems that it will suffice. Dodge v. Stanhope, 55 Md. 121. Or if evidence to rebut it is offered. Phillips v. McGrath, 62 Wis. 124. But it was held that the erroneous reception of evidence inadmissible under these statutes is cured where the opposite party fails to attempt to rebut the fact which has been testified to in case the burden of doing so is on him. Wheeler v. Wheeler, 18 N. Y. State Rep. 445; 2 N. Y. S. 445.

interested person incompetent the cases are not harmonious. The weight of the decisions sustains the rule that the adverse party will not be allowed to testify to any conversation or transaction he may have had with the deceased agent.' But the contrary doctrine is not without the support of authority. § 311. Incompetency of parties to negotiable instruments to impeach them. In many of the early English cases, in the supreme court of the United States, and in the courts of several of the state common wealths, a rule has been laid down that a party to a negotiable instrument, i. e., the maker or indorser thereof, is incompetent in a subsequent suit brought on the instrument to testify as a witness to any fact impeaching the instrument which existed when he signed or indorsed the note or other negotiable security. The basis of this exclusory rule is generally stated to be that it is contrary to sound public policy and good morals to allow a person who has, for his own benefit, giving currency and circulation to a negotiable instrument, to state facts which might invalidate it in the hands of a bona fide purchaser or holder for value. However true this view may be in case the person is himself a party- and certainly as a party he should be estopped, upon general principles of estoppel, from impeaching his own deliberate act,— it does not seem applicable where third parties only are in litigation, if the witness knows the discrediting fact and if that

1 Whiting v. Traynor, 74 Wis. 293; Sabler v. Shef. S. Co., 87 Ala. 305; Warten v. Strane, 82 Ala. 311 (clerk); Mobile S. Bank v. McDonnell, 87 id. 736; Johnson v. Hart, 82 Ga. 767; Kansas M. Co. v. Wagner, 25 Neb. 439.

2 Farmers' Ins. Co. v. Insurance Co., 40 Minn. 152; Sprague v. Bond (N. C., 1894), 18 S. E. Rep. 701; South Baltimore Co. v. Muhlback, 69 Md. 395; First Nat. Bank v. Cornell, 41 Ohio St. 401; Reynolds v. Iowa Ins. Co., 80 Iowa, 563; 46 N. W. Rep. 659.

3 Walton v. Shelley, 1 T. R. 296, cited in Greenl. on Ev., § 393.

4 United States v. Leffler, 11 Pet.

86; Henderson v. Anderson, 3 How. (U. S.) 73.

5 Fox v. Whitney, 16 Mass. 118; Shamburg v. Commagere, 5 Martin (La.), 9; Sweeny v. Easter, 1 Wall. 166; Haddock v. Wilmarth, 5 N. H. 187; Dewey v. Warriner, 71 Ill. 198; Fox v. Whitney, 16 Mass. .18; Strong v. Wilson, 1 Morris (Iowa), 84; Dearing v. Sawtelle, 4 Greenl (Me.) 191; Treon v. Brown, 14 Ohio, 482; Rohrer v. Morningstar, 18 Ohio, 579; Thayer v. Crossman, 1 Metc. (Mass.) 416; Gaul v. Willis, 26 Pa. St. 259. The rule is not invoked in case the party has indorsed "without recourse." 2 Pars. on Pr. N. & B. 470; Abbott v. Mitchell, 6 Shepl. 355.

fact is one of which the law allows proof. The rule has been repudiated both in England and in America by the majority of the cases. In any case it is only applicable to negotiable paper issued in the usual course of trade before maturity, and does not apply between the original parties or to those who take the paper with notice of any equitable defenses good as between the parties. The rule does not render the person incompetent as a witness to any facts which have taken place subsequent to his act of indorsement, or to facts not in any way impairing or discrediting the validity of the instrument.

§ 312. Competency of counsel as witnesses. By some of the early cases it was held, not indeed as a positive rule of law, but rather as a matter of propriety and procedure deemed necessary to the impartial administration of justice, that an attorney-at-law could not testify for his client in the cause in which he was engaged.' But the modern rule is otherwise, and counsel are competent witnesses for a party as to all facts which are within their personal knowledge, though the practice of receiving this sort of testimony should not, it seems, be encouraged,' in view of the bias with which the mind of the

1 Abbott's Trial Evidence, § 417. 2 Stafford v. Rice, 5 Cowen, 23; Guy v. Hull, 3 Murph. (N. C.) 150; Griffing v. Harris, 9 Port. (Ala.) 225; Taylor v. Beck, 3 Rand. (Va.) 216; Jackson v. Parker, 13 Conn. 352; Freeman v. Britton, 2 Harr. (N. J.) 191; Knight v. Packard, 3 McCord, 71; Slack v. Mass, Dud. (Ga.) 161; Abbott v. Ross, 62 Me. 194; Stump v. Napier, 2 Yerger (Tenn.), 35; Todd v. Stafford, 1 Stew. (Ala.) 199; Gorham v. Carroll, 3 Litt. (Ky.) 121; Ringgold v. Tyson, 3 Harr. & J. 172; Parsons v. Phipps, · 4 Tex. 341; Bank v. Hull, 7 Mo. 273; Williams v. Walbridge, 3 Wend. 415; Orr v. Lacey, 2 Doug. 230.

3 Parke v. Smith, 4 Watts & S. 287; Rohrer v. Morningstar, 18 Ohio, 579; Thayer v. Crossman, 1 Metc. 416.

4 Bubier v. Pulsifer, 4 Gray (Mass.),

8

5 Haines v. Dennett, 11 N. H. 180. 6 Sweeney v. Easter, 1 Wall. 166. 7 Stones v. Byron, 4 Dowl. & L. 393; Dunn v. Packwood, 11 Jur. 242; Mishler v. Baumgardner, 1 Am. L. J. 304.

8 Little v. Keon, 1 N. Y. Code R. 4: Linton v. Com., 46 Pa. St. 294; Follansbee v. Walker, 72 Pa. St. 230; State v. Cook, 23 La. Ann. 347; Potter v. Ware, 1 Cush. 519, 524: Mealer v. State (Tex., 1893), 22 S. W. Rep. 142. Cf. Traser v. Haggerty, 86 Mich. 521.