In a recent New York case it is laid down that an accomplice is competent to testify, regardless of the extent of his own guilt, even though it may exceed that of the principal defendant, and that it lies in the discretion of the trial court whether or not to admit him as a witness. A few cases decide that an accomplice who has not been indicted is competent; but the great weight of authority raises no distinction between accomplices who have been, and those who have not been indicted, but rather between those who have and those who have not been convicted and sentenced.3 In most of the cases just cited the accomplice was offered as a witness for the prosecution. Upon the question of his competency for the defence, the authorities are not harmonious; but the better opinion seems to favor his admission, where the evidence against him is slight; and the court, in such cases, will generally direct his acquittal, and then admit him to testify; or a nolle prosequi as to him may be entered by the prosecutor with the consent of the court. But it seems to be pretty well settled that, unless he be acquitted, or a nolle entered, he will not be competent to testify in favor of the principal offender, or his other co-partners in guilt. And there are many respectable adjudications which expressly deny to the accessory or accomplice the right to testify in favor of the principal. ple, 26 Ill. 344; Earll v. People, 73 Ill. 329; Johnson v. State, 2 Ind. 652; Ayers v. State, 88 Ind. 275; State v. Cook, 20 La. Ann. 145; Moulton v. Moulton, 13 Me. 110; Sinclair v. Jackson, 47 Me. 102; Territory v. Corbett, 3 Mont. T. 50; People v. Whipple, 9 Cow. (N. Y.) 707; People v. Costello, 1 Den. (N. Y.) 83; People v. Lohman, 2 Barb. (N. Y.) 216; Noland v. State, 19 Ohio, 131. 1 Lindsay v. People, 63 N. Y. 143. 2 Phillips v. State, 34 Ga. 502; Sumpter v. State, 11 Fla. 247; McKenzie v. State, 24 Ark. 636. & Cases first cited, supra. * State v. Graham, 12 Vr. (N. J.) 15. S. P. United States v. Hanway, 2 Wall, Jr. 139; People v. Labra, 5 Cal. 183. 5 Armistead v. State, 18 Ga. 704; People v. Bill, 10 Johns. (N. Y.) 95; State v. Carr, Coxe (N. J.) 1; State CHAPTER III. OF SOCIAL DISQUALIFICATIONS. § 22. Indians. § 23. Negroes and Slaves. § 24. Chinamen. § 22. Indians. It has been held in Indiana, that although an Indian is not a competent witness in that State, yet the fact that a witness is principal chief of an Indian nation, is, at most, but presumptive evidence that he is an Indian, which, in the Supreme Court, is rebutted by the fact that he was admitted to testify in the Circuit Court. The same rule of incompetency was adopted in California.2 In Mississippi, however, an Indian is conceded to be a competent witness in a suit between white men, and is under no other restrictions than a white person.3 So, also, in Nebraska, the only test of an Indian's incompetency, so far as the fact of his being an Indian is concerned, is his capacity to understand and feel the obligation of an oath.1 § 23. Negroes and Slaves. -During the existence of the institution of slavery in this country, and even after its abolition, and prior to the going into effect of the act of Congress commonly called the "Civil Rights Bill," it was the settled law in the slave States that persons having more than onefourth (in some jurisdictions one-eighth) negro blood in their veins were incapable of becoming witnesses in any action, civil or criminal, in which a white person was a party in interest. But the rule did not generally apply where both 1 Harris v. Doe, 4 Black f. (Ind.) 369. 2 People v. Howard, 17 Cal. 63. 3 Coleman v. Doe, 4 Sm. & M. 40; Doe v. Newman, 3 Sm. & M. 565. 4 Priest v. State, 10 Neb. 393; s. c., 6 N. W. Rep. 468. 5 Smyth v. Oliver, 31 Ala. 39; Dupree v. State, 33 Id. 380; Heath v. State, 34 Id. 250; Brown v. Lester, Ga. Dec. Pt. I. 77; Graham v. Crockett, 18 Ind. 119; Nave v. Williams, 22 Id. 368; Rusk v. Sowerwine, 3 Har. & J. (Md.) 97; Sprigg v. Negro Mary, Id. 491; Hughes v. Jackson, 12 Md. 450; Page v. Carter, 8 B. Mon. (Ky.) 192; Jordan v. Smith, 14 Ohio, 199; Dean v. Commonwealth, 4 Gratt. (Va.) 541. parties, the proceeding being of a civil nature, were negroes, or where the defendant, the action being a criminal one, was a negro. And even, where a white person was a party, the rule had some exceptions: thus, in such a case a negro was admitted to prove his book of original entries in order to make it evidence;2 and the confession of a white man on trial for a crime was allowed to be proved by a colored witness. Again, it was held competent to show that certain acts were done in consequence of information received from a negro; and a conversation between the prisoner (a white man) and a negro was allowed to be proved, but only by a white witness. Another exception was where the negro offered as a witness was the person injured by the crime for which a white man was put on trial. Thus it was held in Delaware that the negro on whom the assault and battery charged in the indictment was committed was competent on the trial of the prosecution for such assault against a white man, although there was a white witness present when it was committed. And the same principle was applied in the case of a negro who had been kidnapped by a white man.7 In some cases the witness, if a free negro, was permitted to testify even against a white antagonist; in others he was not, but only where both parties were colored.10 Color alone was not, however, deemed sufficient proof of incompetency; thus a dark-colored native of Turkey was held competent in the absence of proof of African descent.11 Upon the enactment of the Civil Rights Bill this absurdly unjust rule of evidence was utterly abrogated. This act of Congress is paramount as to the competency of witnesses, and must prevail where its provisions come in contact with 1 Elliott v. Morgan, 3 Harr. (Del.) 316; Woodward v. State, 6 Ind. 492. Contra, Gray v. State, 4 Ohio, 353; Jones v. State, 1 Meigs (Tenn.) 120. 2 Webb v. Pindergrass, 4 Harr. (Del.) 439. 3 State v. Downham, 1 Del. Cr. 45. 4 Grady v. State, 11 Ga. 253. 5 Hawkins v. State, 7 Mo. 190. Compare Ragland v. Huntingdon, 1 Ired. (N. C.) L. 561. 6 State v. Rash, 1 Del. Cr. 271. 7 State v. Whitaker, 3 Harr. (Del.) 549; State v. Griffin, Id. 560. To the contrary, see People v. Howard, 17 Cal. 63. 8 Ivey v. Hardy, 2 Port. (Ala.) 548; Potts v. Harper, 2 Penn. (N. J.) 1030; Gurnee v. Dessies, 1 Johns. (N. Y.) 508. 9 Rusk v. Sowerwine, 3 Har. & J. (Md.) 97; Groning v. Devana, 2 Bail. (S. C.) 192. 10 Jones v. Jones, 12 Rich. (S. C.) 116. See also State v. McDowell, 2 Brev. (S. C.) 145; White . Helmes, 1 McCord (S. C.) 430. 11 People v. Elyea, 14 Cal. 144. State law. The first section gives negroes equal rights with whites to give evidence, and they are therefore competent witnesses.1 § 24. Chinamen. It has been held in California that a Chinaman is an "Indian" within the meaning of the statute excluding "Indians" as witnesses.2 And a more recent case decides that the words "white person," in the California act which provides that "no Indian, or person having one-half or more of Indian blood, or Mongolian, or Chinese, shall be permitted to give evidence in favor of or against a white person," refer to the defendant only in a criminal action; and a Chinaman, who is on trial for crime, may introduce Chinese witnesses in his behalf.3 Another case in the Supreme Court of California denies to a Chinaman the right to testify against a white man who is indicted for robbing him ; but as recently as January, 1884, the United States District Court, sitting in that State, laid down what will doubtless be universally accepted as the true rule, viz. that Chinese persons are, under the Constitution and laws of the United States guaranteeing to them "the equal protection of the laws," competent witnesses. The test of their competency, as in the case of Indians, is their capacity to understand the obligation of an oath.6 1 Ex parte Warren, 31 Tex. 143; Kelly v. State, 25 Ark. 392; S. P. Clarke v. State, 35 Ga. 75; State v. Underwood, 63 N. C. 98. Contra, Bowlin . Commonwealth, 2 Bush (Ky.) 5. And see Turner v. Parry, 27 Ind. 163. 2 Cal. Code, § 394; Speer v. See Yup Co. 13 Cal. 73. 8 People v. Awa, 27 Cal. 638. 4 People v. Jones, 31 Cal. 565. 5 In re Tung Yeong, 1 West Coast. Rep. 647; s. c., 19 Fed. Rep. 184. The Merrimac, 1 Ben. (U. S.) 490. CHAPTER IV. COMMON LAW RULE AS TO PARTIES TO THE RECORD. § 25. The General Rule excluding them. § 26. The Scope and Extent of the Rule. § 27. Its Limits and Exceptions. § 28. Disinterested, Nominal, and Unnecessary Parties. § 29. Parties Liable for Costs. § 30. The Rule in Courts of Equity. § 31. Competency of One Party as a Witness for Another Party. § 32. Competency of Defendant for Co-defendant, generally. in Actions on Contract. in Actions of Tort. § 33. $ 34. $ 35. in Suits in Equity. § 38. $ 39. Effect of Default, nolle prosequi, or Verdict: in Actions on Contract. in Actions of Tort. § 40. Effect of Misjoinder of Parties Defendant. § 41. Witness made Party by Mistake. § 42. Common Law Rule as to Defendants in Criminal Cases. § 43. Effect of Separate Indictments or Separate Trials. § 44. Effect of examining Adverse Party as a Witness. $45. Competency of Judges and Arbitrators. § 25. The General Rule excluding Them. -- The general rule, at common law, is that no party to the record, in a civil suit, can be a witness either on his own behalf or on that of any other party to the suit. 1 This rule was founded both upon the interest of the witness in the event of the litigation, and upon a general recognition by the law-makers of the expediency of confining the temptations to commit perjury within the narrowest possible limits. Thus it has been repeatedly held that a party upon the record, although divested of all interest in the event of the suit, is an incompetent witness. 2 13 Bl. Comm. 371; 1 Gilb. Ev. (Lofft ed.) p. 221; Frear v. Evertson, 20 Johns. (N. Y.) 142. 2 Bridges v. Armour, 5 How. (U. S.) 91; Blanchard v. Sprague,1 Cliff. (U.S.). 288; The Neptune, Olc. Adm. 483; Lucas v. Payne, 7 Cal. 92; Patterson v. Cobb, 4 Fla. 481; Marks v. Butler, 24 Ill. 567; Frear v. Evertson, 20 Johns. (N. Y.) 142; Schermerhorn v. Schermerhorn, 1 Wend. (N. Y.) 119; Benjamin v. Coventry, 19 Id. 353; |