35 N.J. Eq. 87 | New York Court of Chancery | 1882
George Cox and "William Cox, brothers, being partners in
(1) “Whose signature is to that cheek, and by whom was it written?
(2) “ Did the firm of William and George Cox owe Elizabeth Rowland anything on January 12th, 1874 [date of check] ?
(3) “ What did Elizabeth Rowland give the firm of William and George Cox as a consideration for that cheek ?
(4) “ Whose money paid that check ?
(5) “ Was this money paid with your knowledge and consent ?
(6) “ Is there any entry on the books of the partnership of that payment except the book kept by the bank ?
(7) “Had you authorized in any way William Cox to give that check to be paid out of the partnership funds ? ’’
All the foregoing questions were objected to because one of the
I am of opinion that the supplement applies to suits pending at the time of its passage as well as to suits subsequently commenced.
I am also of opinion that all the questions are competent and admissible, except the two questions numbered five and seven. There maining questions do not involve any personal intercourse between the witness and the deceased in his lifetime, and are not within the scope of the just and fair rule which shuts the mouth of the surviving one of two parties as to what was done or said in a transaction or talk between him and the deceased. The wrong of permitting one of such two parties to testify when the other cannot speak, is what the statutory exclusion is aimed at. In none of the above questions is the witness asked to speak of any transaction or statement of the deceased with or to himself,
The above views as to- the competency of the questions are supported by the case of Clawson v. Riley, 7 Stew. Eq. 348, recently decided by the chancellor.