There are early cases to be found in which the testimony of a witness was admitted no matter how clear, great, certain or immediate his interest was, where the parties consented to receive his testimony; or where no other evidence could be obtained; or where the object was to prove the facts and see Andre v. Bodman, 13 Md. 241; Scull v. Mason, 43 Pa. St. 99; Wentworth v. Crawford, 11 Tex. 127. In applying the rules stated in the text, it has been held that a contractor for a building could prove a materialman's lien against the owner (Wolf v. Batchelder, 56 Pa. St. 87. And see Andre v. Bodman, 13 Md. 241; contra, under the New York mechanics' lien law, Collins v. Ellis, 21 Wend. (N. Y.) 397); that one insurer could testify for another interested in the same policy (Bent v. Baker, 3 T. R. 27); or one seaman for another, in an action for wages where the defence affected the right of all the crew to recover (Spurr v. Pearson, 1 Mason (U. S.) 104; Baker v. Corey, 19 Pick. (Mass.) 496; Hoyt v. Wildfire, 3 Johns. (N. Y.) 518; Murray v. Wilson, 1 Binn. (Pa.) 531; S. P. United States v. Freeman, 4 Mason (U. S.) 505; Burrows v. Reeves, 1 Nott & M. (S. C.) 427); so the licensee of a patent may testify for the patentee, in an action for infringement (Buck v. Hermance, 1 Blatchf. (U. S.) 322; De Rosnie v. Fairlie, 1 M. & Rob. 457); and a person signing a notice and application for a road may prove the putting up of the notices (Matter of Highway, 3 Gr. (N. J.) 39); so may a notary who has omitted to notify an indorser testify in an action on the note by the holder against the indorser (Johnson v. Harth, 2 Bail. (S. C.) 183); and the same principle applies in the case of a master of one of two vessels in collision, he may testify in the collision case, notwithstanding his liability over (Crary v. Marshall, 1 E. D. Smith (N. Y.) 530). Again, one landowner may testify for another claiming under the same title or by the same lines and corners (Owings v. Speed, 5 Wheat. (U. S.) 423; Bulkley v. Storer, 2 Day (Conn.) 531; King v. Tarleton, 2 Har. & M. (Md.) 473; Parker v. Brown, 15 N. H. 176; Moody v. Fulmer, 3 Grant (Pa.) 17; Richardson v. Carey, 2 Rand (Va.) 87. See also Bean v. Smith, 20 N. H. 461); otherwise, as to a mere occupant of the land (Foust v. Trice, 8 Jones (N. C.) L. 490; Jackson v. Hills, 8 Cow. (N. Y.) 290; Strawbridge v. Cartledge, 7 Watts & S. (Pa.) 394); and a creditor may testify for his debtor (Bank of Alexandria v. Mandeville, 1 Cranch, C. C. 575; Benedict v. Browson, Kirby (Conn.) 70; Heskett v. Borden Mining Co., 10 Md. 179; Gicker v. Martin, 50 Pa. St. 138. So may one devisce testify for another claiming under the same will (Jackson v. Nelson, 6 Cow. (N. Y.) 248 [see infra. § 61]); or one co-trespasser, for his associate in the trespass (Walton v. Shelley, 1 T. R. 301; Clement v. Wafer, 12 La. Ann. 599; Dundas v. Muhlenberg, 35 Pa. St. 351); and a stakeholder having paid over the money to the supposed winner, after notice to him by the loser not to do so, the person so receiving it is a competent witness for the loser, in an action by him against the stakeholder to recover it (Ivey v. Phifer, 13 Ala. 821). So, also, in criminal cases the person injured by the offence is competent to prove its commission (Fowler v. State, 5 Day (Conn.) 81; Kersh v. State, 24 Ga. 191; State v. McKennan, Harp. (S. C.) 302) unless he be entitled to the fine or penalty (Northcot v. State, 43 Ala. 330; State v. Vaughan, 1 Bay (S. C.) 282. Compare Handley v. Call, 27 Me. 35); and the owner of stolen property may testify against the thief or receiver (Gassenheimer v. State, 52 Ala. 313; Campbell v. Thompson, 16 Me. 117; Commonwealth v. Moulton, 9 Mass. 30. See also State v. Everest, 1 Morr. (Iowa) 206; State v. Pray, 14 N. H. 464). 1 Allen v. Brown, 5 Mo. 323. circumstances necessary to lay a foundation for secondary evidence of a writing, as that a search had been made, and it could not be found.1 § 48. Operation of the Rule as to Witnesses whose Interest is balanced. Many of the earlier cases agree that where the interest of the witness is equal on both sides, or, as it is usually expressed, balanced, he is competent.2 Thus, where he is liable in any event, and his testimony is to determine to which of the parties he is liable, he is a competent witness for either party.3 This rule is applied in equity to the same extent as in actions at law. But if the interest of the witness be not evenly balanced, but preponderates against the party calling him, he will be incompetent, for he is then interested for the excess; and this rule holds even though the preponderance of interest be confined to a liability for costs. Thus, in the case of a claimant of property taken on execution, in order that the execution debtor may be a witness, it must appear that the claimant deduces his title from the debtor, otherwise his interest is not balanced. But an interest in a 1 Juzan v. Toulmin, 9 Ala. 662; Hill v. Barney, 18 N. H. 607. See also Baugher v. Culler, 12 Md. 6. 2 Scott v. The Plymouth, 6 McLean, 463; The Plymouth, 1 Newb. Adm. 56; The Governor v. Gee, 19 Ala. 199; Elgin v. Hill, 27 Cal. 372; Cadwell v. Meek, 17 Ill. 220; Muchmore v. Jeffers, 25 Ill. 199; Kingsbury v. Buchanan, 11 Iowa, 387; Montague v. Mitchell, 28 Ill. 481; Kennedy r. Evans, 31 Ill. 258; Rhodes v. Myers, 16 La. Ann. 398; Tyler . Trabue, 8 B. Mon. (Ky.) 306; Adams v. Gardiner, 13 Id. 197; Ford v. McKibbon, 1 Strobh. (S. C.) 33; Thomasson v. Kennedy, 3 Rich. (S. C.) Eq. 440; Milward v. Hallett, 2 Cai. (N. Y.) 77; Stump v. Roberts, Cooke (Tenn.) 350; Nessly v. Swearingen, Add. (Pa.) 144; Alston v. Huggins, 2 Treadw. (S. C.) Const. 688; Standefer v. Chisholm, 1 Stew. & P. (Ala.) 449; Bridges v. Bell, 13 Mo. 69. 3 Cushman v. Loker, 2 Mass. 108; Spence v. Mitchell, 9 Ala. 744; Locket v. Child, 11 Ala. 640; Emerson v. Providence Hat Manufactory, 12 Id. 237; Stewart r. Stocker, 1 Watts (Pa.) 135; Wright v. Nichols, 1 Bibb (Ky.) 298; Eldridge v. Wadleigh, 12 Me. (3 Fairf.) 371; Lightner v. Martin, 2 McCord (S. C.) 214; Miller v. Little, 1 Yeates (Pa.) 26. Thus in an action, upon a policy of insurance, for the loss of the steamboat insured, the pilot at the wheel is a competent witness; for, if he is liable at all on account of his negligence, he will be liable to the losing party, whichever it may be (Vairin v. Canal Ins. Co., 10 Ohio, 223). 4 Douglass v. Holbert, 7 J. J. Marsh. (Ky.) 1; Smalley v. Ellet, 36 Ill. 500; Miller v. McCan, 7 Paige (N. Y.) 457. The following cases will serve to illustrate many of the circumstances under which the interest of a witness may be considered balanced: Pyke v. Searcy, 4 Port. (Ala.) 52; Dearing v. Wyndham, 11 Ala. 204; Lewis v. Hodgdon, 17 Me. 267; Cutler v. Copeland, 18 Me. 127; Norton v. Waite, 20 Me. 175; Nute v. Bryant, 31 Me. 553; Abbott v. Cobb, 17 Vt. 593. To cite others is unnecessary. 5 Gill v. Campbell, 24 Tex. 405; Dille v. Woods, 14 Ohio, 122. Scott v. McClellan, 2 Me. 199; Hubly v. Brown, 16 Johns. (N. Y.) 70. See also infra, §§ 49, 51. Yarborough v. Scott, 5 Ala. 221. 7 witness in one way cannot be counterbalanced or outweighed by an equal or greater in the opposite, unless the latter is also direct and immediate.1 Nor, where his interest is prima facie balanced, will the possibility that he may have a better defence against one side than the other, prevent his being sworn.2 $49. or preponderates against the Party calling them. So, also, the converse to the principle last stated is equally well sustained, viz. that if the interest of the witness preponderates against the party calling him, he is competent, for to exclude him on the ground of interest, he must appear to be interested in favor of the party who calls him3 and not against him; for in that case, if willing to testify (being a party), he is competent though objected to by his co-plaintiffs or co-defendants.5 Thus, it is not a good objection to a witness offered by the defendant, that he has an interest in the plaintiff's recovery. § 50. or who will testify against Interest. - Mr. Greenleaf says: "It is hardly necessary to observe that, where a witness is produced to testify against his interest, the rule that interest disqualifies, does not apply, and the witness is competent." This has, of course, been repeatedly so held 1 Brown v. Johnson, 13 Gratt. (Va.) 644. Thus a person interested for both parties, but on one side directly and certainly, and on the other indirectly and contingently, is incompetent as a witness for the party in whom he is directly interested (Pool v. Myers, 21 Miss. 466). 5 Parsons v. Phipps, 4 Tex. 341; Ware v. Bennett, 18 Tex. 794; Abbott v. Clark, 19 Vt. 444; Miner v. Downer, 20 Vt. 461; Paine v. Tilden, Id. 554; Sargeant v. Sargeant, 18 Vt. 371. Compare Smith v. Elder, 7 Sm. & M. (Miss.) 507. Ralph v. Brown, 3 Watts & S. 2 Starkweather v. Mathews, 2 Hill (Pa.) 395. S. P. Horry v. Glover, (N. Y.) 131. Sims v. Givan, 2 Blackf. (Ind.) 461; Kennedy r. Barnett, 1 Bibb (Ky.) 154; Jackson v. Vredenbergh, 1 Johns. (N. Y.) 159; Lansingburg v. Willard, 8 Id. 428. 4 Stokes v. Kane, 5 Ill. (4 Scam.) 167; Turner v. Davis, 1 B. Mon. (Ky.) 151; Englehard v. Slater, 8 Miss. (7 How.) 538; Doe v. Jackson, 1 Sm. & M. (Miss.) 494; Haile v. Hill, 13 Mo. 612; Loftin v. Nally, 24 Tex. 565; Darling v. March, 22 Me. 184; Brown v. O'Brien, 1 Rich. (S. C.) 268; Alston v. Huggins, 3 Brev. (S. C.) 185; Le Clair v. Peterson, 4 Blackf. (Ind.) 273; Nooe v. Higdon, Id. 184. Riley (S. C.) Ch. 53; but in such a where the testimony was voluntarily given;1 but it has been held by a very respectable court, that an infant party will not be permitted to do so, even with the consent of his guardian ad litem;2 and an early case in Illinois decides, that where a party in interest is not also a party to the record, he may, at the instance of the opposite party, be compelled to testify as a witness, against his own interest, provided his answers do not subject him to a criminal prosecution, or to a penalty or forfeiture.3 § 51. Witness Liable for Costs. The incompetency of a party to the record, arising out of his interest in the costs of the suit, has already been examined. The effect of such an interest on the part of a witness not a party remains to be considered. The rule of the common law being that any interest in the event, however trifling, disqualified a witness, it was uniformly held that an interest in the costs of the litigation would exclude the witness.5 Thus, one who is, individually or with others, directly liable for costs in a cause, is not a competent witness to prove any fact which would relieve him from these costs; and a liability for costs, in the event of a recovery on notes, prevents the person so liable from being a competent witness in a bill in equity to have the notes surrendered and cancelled." Again, where persons, either before or after suit brought, agree to divide the amount recovered, they are liable to the defendant for costs, and cannot testify till the costs of the suit have been paid, though they execute mutual releases. So, also, the counsel of a non-resident plaintiff,9 or the indorser 1 Cowles v. Whitman, 10 Conn. 121; Commercial Bank v. Wood, 7 Watts & S. (Pa.) 89; Brown v. Burke, 22 Ga. 574; Nooe v. Higdon, 4 Blackf. (Ind.) 184; Merchand v. Cook, 4 Greene (Iowa) 115; Sims v. Randal, 1 Brev. (S. C.) 85; Tuttle v. Turner, 28 Tex. 759; Gardner v. Gardner, 4 Heisk. (Tenn.) 303. 2 Rickards v. Laus, 3 Harr. (Del.) 393. 3 Brooks v. M'Kinney, 5 Ill. 309. 4 Supra, § 29. 5 Bill v. Porter, 9 Conn. 23; Benedict v. Brownson, Kirby (Conn.) 70; Craven v. Updike, 3 Blackf. (Ind.) 272; Beach v. Swift, 2 Conn. 269; Vason v. Merchants' Bank, 2 Ga. 140; Wilkes v. McClung, 29 Ga. 371; Cherry v. McCorkle, 8 Iowa, 522; Allison v. Allison, 7 Dana (Ky.) 90; Bullitt v. Stewart, 16 La. Ann. 22; Cason v. Robson, 29 Miss. 97; Bennet v. Carter, Riley (S. C.) 287; Bennett v. Dowling, 22 Tex. 660. 6 Ware v. Jordan, 21 Ala. 837. 7 Ferson v. Sanger, 1 Woodb. & M. (U.S.) 138. 8 Mackinley v. M'Gregor, 3 Whart. (Pa.) 370. 9 Robinson v. Towns, 30 Ga. 818. But it was decided in New York that a partner with the plaintiff's attor ney, who is interested in the costs, of a writ, being liable for the costs, cannot testify in the suit. And where witnesses for the plaintiff of record sue a third person for their fees, the plaintiff of record, being prima facie liable for such fees, is incompetent as a witness for the plaintiffs. But the interest of the witness in these cases could be released, and the witness rendered competent. Thus where the surety in a bond for costs was required as a witness, the plaintiff could substitute a new bond, release the surety, and use him as a witness; and where a witness was objected to as the indorser of the writ, the plaintiff residing out of the State, he was made competent by a stranger's voluntarily depositing a sum of his own money, sufficient to cover the costs, with the clerk, in the absence and without the knowledge of the plaintiff.1 and probably expects higher fees as counsel in case of success, is not therefore an incompetent witness (Griswold v. Sedgwick, 1 Wend. (N. Y.) 126. See also Patton v. Taylor, 7 How. (U. S.) 132). 1 Ammidown v. Woodman, 31 Me. 580. 2 Utt v. Long, 6 Watts & S. (Pa.) 174. In this case, the plaintiff of rec ord having died insane, it was held that his executor was a competent witness in the latter action, the estate being sufficient to pay the fees. See also Hopkinson v. Guildhall, 19 Vt. 533; Cowles v. Rowland, 2 Jones (N. C.) L. 219. 3 Hoys v. Tuttle, 8 Ark. 124. 4 Ammidown v. Woodman, 31 Me. 580. |