In all

a personal injury inflicted upon one of its members. such cases the witness could not remove his interest by his own act, and become competent against the consent of the defendant; but in some cases a release would render the witness competent. Still the co-plaintiff partner, if willing so to do, was deemed competent to testify for the defendant.* Where the suit was against the firm, the general rule was that a partner not disqualified on the ground of interest was competent to testify against his co-partners. So held where several were sued jointly as partners, and one of them answered separately, denying that he was a partner, the court admitting his co-defendants as to such defence, as it was not a matter in which they were jointly interested or liable with him.6 Accordingly, a plaintiff in chancery is entitled to the testimony of one or all of the defendants, sued as partners.7

8

On the other hand, one partner could not, in general, testify in favor of his associate defendants, especially if a judgment might be rendered against the proposed witness, to prove a defence which would be common to both.9 Thus one partner could not prove payment by the other of a judgment against the firm, since if the defence prevailed, he would no longer be liable to the creditor for the whole amount, but only for one-half, to his co-partner.10 But when released by all the other members of the firm, he was generally admitted.11

1 Blair v. Milwaukee &c. R. R. Co., 272, where a contrary doctrine seems 20 Wis. 262. to be held. So where defendant is sued as a partner on an obligation not signed by him or with his name, the members of the firm are competent witnesses for him, to prove that he was not a partner. James v. Brooke, 15 La. Ann. 541. But not to prove the converse. Scott v. Bandy, 2 Head (Tenn.) 197.

2 Loomis v. Loomis, 26 Vt. 198. In such cases the court should hear the evidence and decide on it whether the witness was competent or not. Lyon v. Daniels, 14 Pa. St. 197. See also Thomas v. Brady, 10 Id. 164; Thrall r. Seward, 37 Vt. 573.

& White v. Tucker, 9 Iowa, 100; Chapman v. Andrews, 3 Wend. (N. Y.) 240.

* Cunningham v. Carpenter, 10 Ala. 109; Moddewell v. Keever, 8 Watts & S. (Pa.) 63; Canon v. Campbell, 18 Pa. St. 164; Young v. Reed, 25 Tex. (Supp.) 113.

5 Bell v. Thompson, 34 Ill. 529.

Hubbell v. Woolf, 15 Ind. 204. But sec Bailey v. Doak, 13 La. Ann.

7 Williamson v. Haycock, 11 Iowa, 40.

8 Wilson v. Clark, 27 Miss. 270.

9 City Bank v. McChesney, 20 N. Y. 240; Ward v. Woodburn, 27 Barb. (N. Y.) 346.

10 Ellis v. Fisher, 10 La. Ann. 479. 11 Curtis v. Monteath, 1 Hill (N. Y.) 356; Jackson v. Jones, 13 Ala. 121.

In a dispute between partners, it has been held that one of the firm is competent to prove claims of other members who call him as a witness, but not to diminish claims set up against the firm by partners who did not so call him;1 or where the effect of a judgment in favor of those calling him would be to discharge a claim for which he remains jointly liable.2 For the same reason where it was claimed that a firm was liable for the board of one of the partners, another partner was held incompetent to prove that fact.3

(2) Partner not sued. As a general rule, the fact that the proposed witness, though a partner with the other defendants, was not made a party to the suit, did not remove his incompetency, for it was his interest in the event, not his position as a party to the controversy, which disqualified him. When not sued, his liability to his co-partner for contribution, in the event of a recovery by the plaintiff, caused his exclusion. It was even held that a release by the defendant of record (his partner) would not render the witness competent for him, his liability to the plaintiff still subsisting.5 The same rule was applied where both partners were sued but one only was served with process and the one not served did not appear. So, also, the proposed witness was not permitted to testify for the plaintiff, to prove that the defendant was a partner of the witness, and thus jointly liable with him for the debt sued on.7

On the other hand, it was held in some jurisdictions that he could, as a witness for the plaintiff, prove the cause of

1 Garner v. Beatty, 7 J. J. Marsh. (Ky.) 223. S. P. Cinnamond v. Greenlee, 10 Mo. 578.

2 Kapp v. Barthan, 1 E. D. Smith (N. Y.) 622. See also Meason v. Kane, 63 Pa. St. 335.

5 Tomkins v. Beers, 2 Root (Conn.) 498; Cline v. Little, 5 Blackf. (Ind.) 486; Black v Marvin, 2 Pa. 138; Scott v. Wakins, 2 Sm. & M. (Miss.) 255; Wells v. Pack, 23 Pa. St. 155. To the contrary, Lefferts v. De Mott,

3 Street v. Meadows, 11 Ired. (N. C.) 21 Wend. (N. Y.) 136; Wilson v.

L. 130.

4 Cochran v. Cunningham, 16 Ala. 448; Myers v. Gilbert, 18 Ala. 467; Dill v. Porter, 9 Conn. 23; Hooker v. Johnson, 8 Fla. 453; Hurd v. Brown, 25 I. 616; Randolph v. Govan, 14 Sm. & M. (Miss.) 9; Ransom v. Keyes, 9 Cow. (N. Y.) 128; Porter v. Wilson, 13 Pa. St. 641. Contra, see Weston 2. Hunt, 19 Mo. 505; Cummins v. Coffin, 7 Ired. (N. C.) L. 196.

Smith, 5 Yerg. (Tenn.) 379.

6 Wright v. Boynton, 37 N. H. 9; Latham v. Kenniston, 13 N. H. 203; Taylor v. Henderson, 17 S. & R. (Pa.) 453; Little v. Clarke, 36 Pa. St. 114.

7 Dixon v. Hood, 7 Mo. 414; Mellvaine v. Franklin, 2 La. Ann. 622; Ellis v. Lauve, 4 Id. 246; Lewis v. Post, 1 Ala. 65; Barney v. Earle, 20 Ala. 405; Garner v. Myrick, 30 Miss. 448; Phillips v. Henry, 2 Head (Tenn.) 133.

1

action against the partner sued; and that he was competent for his co-partner, when required to testify against his interest, to matters within the scope of the issue; 2 or where his interest was equally balanced between the parties to the suit.3

(3) Dormant Partner. In Pennsylvania it was held that a dormant partner, though not a party to a suit, cannot be a witness for the partnership. But in an early New York case it was decided that if a dormant partner releases his interest to his co-partner, he may be a competent witness for him.5

6

(4) Effect of Judgment by Default, Discontinuance, etc. As to the competency of one sued as a partner and defaulted, the cases are not harmonious, many of them holding that a witness so situated is still disqualified by interest from being a witness, as against his co-defendants, even to prove the partnership; or, in favor of his co-defendant, to prove that the latter was not a partner; while others, of equal respectability, take the contrary view, admitting a witness so situated to testify in favor of his co-partner;9 or against him and in favor of the plaintiff.10 Thus a defaulted partner was allowed to prove that the bill sued on was made by him in the name of two members of the firm, and indorsed by a third, to raise money for the benefit of the firm, and that the money so raised was so used and applied."1

(5) Assignment of Interest. In an early New York case it was decided that one partner, who had sold his interest in the firm to a co-partner, and had been released by the other

1 Crook v. Taylor, 12 Ill. 353; Washing v. Wright, 8 Ired. (N. C.) L. 1.

2 Anderson v. Snow, 8 Ala. 504; Robertson v. Mills, 2 Har. & G. (Md.) 98. And see Cutter v. Fanning, 2 Iowa, 580.

3 Black v. Campbell, 6 W. Va. 51. 4 Wood v. Connell, 2 Whart. (Pa.) 542.

6 Clarkson v. Carter, 3 Cow. (N. Y.) 84.

6 Nightingale v. Scannel, 6 Cal. 506; Cody v. Cody, 31 Ga. 619; Rich v. Husson, 4 Sandf. (N. Y.) 115.

359; Fairchild v. Armsbaugh, 22 Cal. 572.

8 Williams v. Soutter, 7 Iowa, 435. Contra, Aicardi v. Strang, 38 Ala. 326; Gooden v. Morrow, 8 Ala. 486; Smith v. Knight, 71 Ill. 148; Thomas v. Mohler, 25 Md. 36; Long v. Story, 13 Mo. 4.

Sharp v. Morrow, 6 T. B. Mon. (Ky.) 300; Butcher v. Forman, 6 Hill (N. Y.) 583.

10 Robinson v. McFaul, 19 Mo. 549. Contra, Glasscock v. McRae, 6 La. Ann. 284.

11 Bacon v. Hutchings, 5 Bush (Ky.)

7 Alexander v. Crosthwaite, 44 Ill. 595.

members of the firm, was a competent witness for the plaintiff in a suit to recover a debt due the firm before the witness retired.1

But the Supreme Court of Louisiana said that the testimony of a witness so situated must always be received with grave suspicions. And the more prevalent and sounder doctrine. was, that a partner can never be so far divested of his interest in the partnership, by any act of himself and co-partners, as to be a competent witness in a matter relating to the partnership while he was a member.3

(6) After Dissolution.. As a general rule, the dissolution of the partnership did not remove the common-law incompetency of the several partners to testify as to transactions of the firm prior to dissolution, e.g. to prove that the firm was not dissolved at a particular time; or even as to matters occurring since the dissolution, where the testimony of the witness would tend to increase the liability of a former partner, either to creditors or for contribution."

In an action against the administrator of a deceased partner, to recover a partnership debt, the surviving partner was held a competent witness. In such an action the surviving partner may prove the partnership. But where the surviving partner sues, as such, the widow of the deceased partner cannot testify for him, her interest being to increase the fund in which she is entitled to a distributive share.8

§ 71. Part-Owners. At common law, one joint owner of personal property was, from interest, incompetent to testify for the other where the title to such property was in issue;9

1 Hosack v. Rogers, 25 Wend. (N. settled the debt by giving his notes to Y.) 313.

2 McLaughlin v. Sauvé, 13 La. Ann. 99.

8 Collins v. Flowers, 2 Miss. 26; Cravens v. Dewey, 13 Cal. 40; Dougherty v. Smith, 4 Metc. (Ky.) 279; Church v. Hampton, 6 Watts & S. (Pa.) 514.

Crymes v. White. 37 Ala. 549; s. c., Ala. Sel. Cas. 473.

5 Merrit v. Pollys, 16 B. Mon. (Ky.) 355. See also White v Jones, 14 La. Ann. 681; Hale v. Wetmore, 4 Ohio St. 600.

In Morse v. Green (13 N. H. 32) a debtor of the firm at its dissolution

the two partners separately, each for a part of the debt. In an action on one of the notes against the maker, it was held that the other partner was a competent witness for the plaintiff. See also Whitehead v. Bank of Pittsburgh, 2 Watts & S. (Pa.) 172, White v. Tudor, 24 Tex. 639.

6 Brewster v. Sterrett, 32 Pa. St. 115; Collier v. Leach, 29 Id. 404. S. P. Wright v. Funck, 94 Pa. St. 26.

7 Grant . Shutter, 1 Wend. (N. Y.)

148.

8 Allan v. Blanchard, 9 Cow. (N. Y.) 631.

9 Caldwell v. Cole, 13 Me. 120.

or against the other, to prove the fact of joint ownership and consequent joint liability.1 But this rule had some seeming exceptions: thus in an action on a marine policy, one of the part-owners of the vessel, not interested in the insurance, was admitted to prove the loss and other facts.2 So, also, a part-owner of a cargo, standing by and permitting another, who owned the residue, to sell the same, agreeing to look to such other for payment, and subsequently being paid for the same, was held competent to prove the contract of sale.3 § 72. Personal Representatives. ·(1) In General. It was well settled at common law, in some States, that the testimony of an executor, administrator, or guardian was inadmissible in an action against or in favor of the estate he represented; his being a party, and liable eventually to costs, having always been deemed a sufficient objection. But the action being between third parties, he was generally admitted for many purposes, such as to protect the title of one who had purchased or hired a chattel from him in his representative capacity; or to whom he had paid over a promissory note payable to the testator; or to support the validity of a claim against the estate which he had voluntarily paid, in a contest between the claimant and another creditor; or to prove that a conveyance made by the intestate, absolute on its face, was only intended to create a trust; or, the dispute being between a guardian and his ward, to show when, and how much money the witness paid over to the guardian.9

5

1 Aston v. Jemison, 17 Ala. 61 (a statutory action to charge the defendant as joint owner, with the witness, of a steamboat). In another case the witness was not allowed to testify for the other joint owner of the steamboat. The Farmer v. McCraw, 31 Ala. 659. See also Marquand v. Webb, 16 Johns. (N. Y.) 89; Lufkin r. Patterson, 38 Me. 282. The contrary doctrine is held as to actions ex delicto, in Lee v. Murray, 12 Mo. 280. 2 Ruan v. Gardner, 1 Wash. (U.S.)145. 3 Outwater v. Dodge, 6 Wend. (N. Y.) 397. S. P. The Osceola, Olc. Adm. 450; West v. The Berlin, 3 Iowa, 532. See also Macy v. De Wolf, 3 Woodb. & M. (U. S.) 193; Clement r. Durgin, 5 Me. 9. As to the competency of tenants in common, see Rogers v. Mabe, 4 Dev. (N. C.) 180;

8

Darlington's Appropriation, 13 Pa. St. 430.

4 Sears v. Dillingham, 12 Mass. 358; Fox v. Whitney, 16 Id. 118; Fenwick v. Forrest, 6 Har. & J. (Md.) 415; Vansant . Boileau, 1 Binn. (Pa.) 444 ; Beard v. Cowman, 3 Har. & M. (Md.) 152; McIntyre v. Middleton, 1 Sm. & M. (Miss.) Ch. 91; Bellamy r. Cains, 3 Rich. (S. C.) 354. But see Parker . Moore, 2 La. Ann. 1017. 5 Walden . Smith, 29 Ala. 417. 6 Lock v. Noyes, 9 N. H. 430.

7 Christman v. Siegfried, 5 Watts. & S. (Pa.) 400.

8 Miller v. Thatcher, 9 Tex. 482. 9 Clark v. Burnside, 15 Ill. 62; Hooper v. Royster. 1 Munf. (Va.) 119; Young v. Warne, 2 Rob. (Va.) 420. But see Raymond v. Simonson, 4 Blackf. (Ind.) 77.