Steele v. Phoenix Insurance
3 Binn. 306
Pa.
1811
Check Treatment
Tilghman C. J.

If William Steele was not a competent witness, it must be, either because he was interested at thq time the action was commenced, or because he was interested at the time he was offered as a witness, or because he was a party to the suit, or because it is against the principles of sound policy to admit him. All the objections which have been urged in the argument, may be reduced to one of these four heads.

1. The reason that interest renders a witness incompetent, is, that it may be supposed to have an influence on his mind, at the time that he gives his testimony. That is the time therefore to which we are to look. If the deposition of a witness is taken, while he is interested, and he becomes disinterested before the trial, the deposition cannot be read. On the other hand, if a witness comes to the bar interested, and devests himself at the bar of his interest, by a release, he is a good witness. So far therefore as an objection arises from interest, it is of no consequence what Steele’s situation was at the commencement of the action.

2. Whether he was interested at the time he gave his testimony, is a matter of fact. It appears to me that he was not, because the suit was at that time carried on by the assignees for the use of his creditors, who paid all the costs, and he had devested himself of all advantage, which might possibly arise to him from any surplus of his estate, by a release. . v

3. It is insisted on by the defendants as a peremptory rule of law, that the plaintiff in the action cannot be a witness. Such a rule has not been proved. It is true indeed, that no instance has been shewn of the plaintiff’s being received as a witness in an action at late in England. The fact is, that in almost every instance, the plaintiff is interested either in the subject of the suit, or in the costs, and therefore the con.*312elusion may have been drawn without sufficient reflection, ^ that in no case can he be a witness. The reason of the law is the life of the law. Now what good reason is there, why a man’s testimony should be excluded, merely because his name is placed on the record as a party to a suit, in which he has no manner of interest/The reason for admitting such evidence is much stronger here than in England. In this state we have no court of Chancery, and therefore the assignee of a chose in action is compelled to bring his action in the name of the assignor; whereas in England he may file a bill in equity, in his own name, and thus in some instances obviate the objection arising from thq assignor being plaintiff on the record, in case he wants to make use of his testimony. Our courts take notice of the equitable owner, although the suit is not brought in his name. In the case of M'Cullum v. Coxe Dall. 139., the plaintiff, who had assigned the cause of action to another person, wanted to discontinue, but the court would not permit him. It is the experience of every day, that the assignee brings an action in the name of the assignor, without consulting or even letting him know of it; and in such case, we consider the assignor as out of the question, and should issue an attachment for' costs against the person for whose' use the suit is brought, in case of a judgment for the defendant. We have direct authority in our own courts against the rule, that the plaintiff cannot be a, witness. In M'Ewen v. Gibbs, 4 Dall. 137., it was decided, that the plaintiff being a bankrupt, who had obtained his certificate, and released his interest in the surplus, might be a witness. It does not appear by the report of this case, whether the plaintiff became a bankrupt before or after the action was brought; but I can see no good reason for a distinction between these cases, provided the interest arising from.liability to costs is removed in the latter case. And indeed we are not without authority, when the bankruptcy takes place after the commencement of the action; for that was the very point determined by president Biddle in M'Clenachan v. Scott, 2 Dall. 172. note. It has been observed by Mr. Rawle, that president Biddle made a distinction between an assignment in case of bankruptcy, and a voluntary assignment. What ground there is for such a distinction, may more *313properly be considered under the fourth head, the supposed impolicy of admitting this kind of evidence.

4. When we talk of altering the law of evidence from motives of policy, it approaches so near to the language of legislation, that to authorize it, the policy must be manifest, and the mischief to be avoided, great. The general rule is, that every person not infamous or interested, is a competent witness. To this there have been exceptions, perhaps as ancient as the rule. Husband and wife shall not testify for or against each other. An attorney at law shall not betray the confidence of his client. There is another exception, the birth of modern times, introduced no doubt from motives of policy. A man shall not be permitted to destroy by his own. testimony, a negotiable instrument to which he has given credit by his signature. But this last exception has not been carried without great opposition from very high authority. Indeed so fluctuating have been the opinions of judges in England, that the point can hardly be considered, as yet established in that country, although with us it is fixed. Now the difference on this question, did not arise from any difference of opinion concerning the policy of supporting the credit of commercial paper, but on the right of the court to alter the law of evidence on the ground of policy. Let us now consider the danger, which it is said, will arise from admitting the testimony in the case before the court. It is supposed that bad men will transfer their rights of action to third persons, in order to open the way for their own testimony. This objection applies equally to assignments made before or after the commencement of the action, and it applies also, to cases over which the court has no control, suclj as sales of rights to land, and assignments of bonds under our act of assembly, in both which cases, the vendors may undoubtedly be witnesses, if they are devested of all interest. It will be remembered too, that before the witness is admitted, he must satisfy the court, that he has been guilty of no collusion; that he has devested himself of every particle of interest; that he is neither to gain nor lose by the event of the suit; and to these points he must answer upon oath. If he really is entirely disinterested, I see no great danger from the circumstance of his having been once interested. *314And after all the jury will judge of his credibility. How can the case before us, be distinguished from that of a certificated bankrupt? It is said, that the assignment of the bankrupt was compelled by law, because in the eye of the law he was criminal. The fact is, that nineteen commissions in twenty are sued out at the request of the bankrupt. But if it be objected that this is not the supposition of the law, I .ask whether a man’s having acted criminally is a recommendation of his evidence. I take it, that the true reason of the bankrupt’s being received as a witness, is, that he has no longer any interest in the thing in controversy; and this reason applies equally to voluntary assignments. Where a mail assigns all Jhis property for the benefit of all his creditors, there is in general no reason to suspect collusion; but where he assigns a particular thing to an individual, (especially pending the action) and then comes forward to make out the case by his own testimony, he should be watched narrowly. 'In all such cases, the court will admit or reject the testimony, according to their conviction of the assignment being a bona fide transaction or not. In the case before us, there was no suspicion of fraud.

I am therefore satisfied, that the evidence was properly admitted.

Ye ates J.

Upon the point reserved in this case, it has been urged by the defendants’ counsel, that William Steele ought not to have been admitted as a witness; not only on -the ground of mere interest, but on-the principles of sound extended policy.

The general rule is, that a party shall not be sworn in his own cause. He is interested in the event, and is therefore excluded. But a nominal plaintiff can only be rejected, on the ground of his liability to costs. The court will take judicial notice, who are the real parties, as in the case of M'Cullum v. Coxe, 1 Dall. 139., and an executor may be sworn in a cause relating to the will, where he is not a residuary legatee, because he is merely a trustee. Gilb. Law Evid. 120.

The cases on this head were very fully examined jn the cause of John Field and John Bernard for the use of Oxley & Hancock v. James Biddle esq., tried in bank, April term *3151792. It is reported in 2 Dali. 171., but I have a fuller note of the court’s opinion on the point of evidence. There the court expressed themselves thus: “We feel a strong repugnance against the testimony offered; our present inclina- “ tion is against the receiving of Field as a witness. We “ know of no case in the books, or by our practice, where a “ plaintiff has been admitted a witness to substantiate his de- “ mand to a jury. This point was much contested in an ac- “ tion of covenant tried at Tork Nisi Prius in May 1791, be- “ tween the executors of Andrew Cochran plaintiffs, and the “ executors of William Cochran defendants. There James “ MiKissom, one of the plaintiffs, was offered as a witness, “ and it appeared that he had no part of the residue devised “ to him by the testator, and the plaintiffs offered to lodge “ the costs in court; but he was rejected. The plaintiffs here “ might have assigned the bond to Oxley and Hancock, if “ they chose it, and thereby made either of themselves wit- “ nesses. As they have not done so, the present matter “ stands precisely in the same situation, as a factor selling “ goods for his principal, and bringing a suit for the “ money in his own name, where he is repelled from “ giving testimony. But if the suit had been brought in the “name of his constituent, the factor would be acompentent “ witness, though he got Is. in the pound commissions on “ the sale. 1 Atky. 248., 3 Wil. 40. However, if the plaintiffs’ “ counsel are willing to run the risk, we will not prevent “ Mr. Field from giving his testimony; but if he is admitted, “ and a verdict should pass for the plaintiffs, and upon a more “ full consideration we shall retain our present opinion, a “ new trial will be awarded without costs.” Mr. Field was accordingly admitted as a witness; but the jury having found a verdict for the defendant, the question was not again stirred.

That case was dissimilar in one striking particular, from the one now before the court. Field was the agent of merchants beyond sea. If he, or some friend in his behalf, had lodged the costs of the action with the prothonotary of this court, a verdict for the plaintiffs would necessarily have effected a return of the money paid; and consequently Mr. Field was immediately interested in the event of the suit. But here the assignees of William and James Steele paid the full costs out of their own pockets, and whether a verdict *316passed for the plaintiffs or defendants, they could neither gain nor lose in a pecuniary' point of view. I cannot conceive the smallest scintilla of interest in William Steele. It is true the action was at first instituted to March term 1805 for the benefit of the partners; but they had become insolvent, and within three months afterwards, had assigned over all their ■property real and personal for the benefit of their creditors in general pro rata. Their creditors executed releases to them in November following, and previous to the offer of the testimony', they' had released to their assignees all moneys which might be recovered under this policy of insurance. After the execution of the assignment in June 1805, they had no longer any control over this action; it was wholly in the option of their assignees, whether they would proceed in the suit, or desist therefrom.

On the score of sound policy, I cannot distinguish between a voluntary assignment to creditors in general in cases of insolvency, and the compulsory assignment produced by the statutes of bankruptcy. A certificated bankrupt may be a Witness in England upon releasing the fund. Peake’s Evid. 168. And the same point has been determined in this state, in several cases, where the costs have been paid, or security given for them. It is much to be wished, that more frequent instances would occur of early fair and honorable surrenders of the property of unfortunate merchants, who have failed in trade from a variety' of causes, to which mercantile enterprises are naturally subjected. If we had a court of equity, either party according to the cases cited by the plaintiffs, might have compelled Steele to make a full disclosure upon oath, of all the circumstances attending this transaction. It is no solid objection to assert, that by introducing the original party as a witness, a door is thrown open to fraudulent practices, wherein a secret interest might be secured to the failing debtor. The same observation is applicable to a vendor of lands, who conveys without covenants of warranty; or where there are such covenants, on the vendee executing a release at the bar; and yet in such cases, it is matter of daily practice to admit such witnesses to be sworn. Besides, there can be no doubt, that where a voluntary assignment was made to appear clearly to the court to be collusive, they would in*317terpose and reject the witness; and where there occurred any difficulty as to the fact, they would instruct the jury to pay no regard to the testimony of the witness, if they were satisfied, that the assignment was merely colourable, with an intention to defraud creditors. The jury must necessarily judge of his credit.

Upon the whole matter I am of opinion, that the testimony of William Steele was properly admitted to go to the jury, and that judgment be entered for the plaintiffs.

Brackenridge J.

At the time the point was reserved by me, I could see no satisfactory reason why the witness should not be heard; and I am now perfectly satisfied that he was competent.

Judgment for plaintiffs.