7 Cal. 92 | Cal. | 1857
delivered the opinion of the Court—Terry, J., concurring.
The demurrer was properly overruled. Moulton was indebted to the plaintiffs, and charged with combining to defraud them, and under the facts of the case he was a necessary party to a complete determination of the controversy.
The order of Moulton is not void by the Statute of Frauds. The debt due to Lucas, Turner & Co., by Moulton, and the conveyance of his property to Payne & Dewey was a sufficient consideration on their part to support their promise. By this transaction they became liable to the plaintiffs as trustees, and could not escape that liability by a subsequent fraudulent transfer of the property. Moulton was an incompetent witness, therefore properly excluded.
The first subdivision of the three hundred and ninety-second section of the Practice Act expressly provides that a party to an action or proceeding shall be incompetent to testify. The appellant contends that this subdivision is controlled by the first part of the section and the three hundred and ninety-third section, and that the only test is that of interest.
In construing statutes, the rule is, that general words are controlled by specific exceptions. Chapter third of the Practice Act provides for several cases in which a party to the action may be called as a witness, but does not authorize a defendant or plaintiff to testify on behalf of his co-plaintiff or defendant.
The inference arising from this is irresistible, that the Legislature did not intend to authorize the practice contended for, and this inference is strengthened by the additional fact, that the law of 1850, contained a special provision, permitting a party to be called on behalf of his co-plaintiffs or defendants, which has been repelled by the present act. Experience had shown that the rule was a premium upon perjury and fraud, and it was wisely abolished.
The Court did not err in refusing to dismiss, as to Moulton, as the plaintiffs had made out a prima facie case against him. The other assignments of error are not tenable. The evidence
