The opinion of the court was delivered
by Black, J.
— This was an action against the defendants, (a corporation,) to recover the penalty imposed by statute for paying out bank notes of a less denomination than five dollars. The record raises certain questions, which have been fully discussed by counsel on two occasions, and very carefully considered by all the members of this court. The conclusions to which we have severally arrived are so various, that I must be understood as expressing no more than my own opinion, though I think it probable that a majority of my brethren will concur in the judgment which I would give. I shall take the points in order.
Absalom Morris was offered as a witness by the plaintiff,' and, at first, the court held him to be incompetent, on the ground of infamy, he having been convicted of a conspiracy. But he was afterwards offered again, with a pardon from the governer, and he was then adjudged to be competent. The plaintiff took an exception to the decision excluding the witness, and, on the rul[347]*347ing which admitted Mm, the court sealed a bill for the defendants. In this court, the plaintiff insists, that the witness ought to have been admitted without the pardon, because his crime was not of the class which, by law, disqualifies him. The defendants not only deny this, but assert that it was erroneous to admit him even after the production of the pardon, inasmuch as it does not so recite the record as to show that he was pardoned .of the same offence he was convicted of. All this has, from the beginning, seemed to me beside any purpose for which the case can be here. If the court did err in rejecting the witness when first offered, the error was cured by admitting him afterwards. The plaintiff had precisely the same advantage from his witness that he would have had if no error had been committed. To compel him to produce the pardon, was not even a hardship ; it was revealing but the simple truth of the case. 'The fact of the pardon did not go to the jury, but only to the court, and we are asked to reverse the judgment, not because a competent witness was excluded, but because the court insisted upon stronger and fuller proof of his competency than what the law made necessary. ' I think there never has been, and never ought to be, a reversal for such a reason. If the court supposes a witness to be interested, and rejects him, and the same witness being afterwards offered, with a release, is admitted and gives his testimony, could the party who introduced him assign his first rejection for error ? Certainly not. If we should reverse on this ground, what reason would we give ? not the exclusion of the witness, for he was not excluded; not the reading of the pardon, for that was the act of the plaintiff in error himself; not the admission of the witness, for that was_surely no fault of the defendant.
I have said that the question of the witness’s competency, on the score of infamy, is not raised on this record; and it is certainly not our duty to say anything on the subject. But as other members of the court probably think differently, and as, on anew trial, it may become very important, I will take leave to express the opinion, that the offence of the witness did disqualify him. As to the pardon, it does not recite the date of the conviction correctly, but that does not render it impossible to show that it was intended to cover, and does cover, the offence of which the record shows the witness to be guilty. If he was convicted but once in his life of any similar offence — if the pardon recites that he was in prison at its date, under the conviction to which it applies* and it can be shown what conviction that was — then it will be mere hypereriticism to pick out a discrepancy in the recital, for the purpose of defeating it. Why should a judge be required to say that it is not a pardon of a particular offence, when he knows in his conscience that it is ? It is a question for the court below to determine, upon all the facts before them, whether the [348]*348pardon is a remission of this offence or some other: and it is not, in my opinion, subject to review here. At least, there ought to be no reversal on that ground, unless the record shows a palpable mistake. When the court settled the general competency of the witness, an objection was made by the defendants, grounded on the matter of his deposition, which, it is asserted, disclosed an interest in the case. It appears that the plaintiff and the witness had a contract between them, by which they agreed to get as many small notes as possible, from the defendants and other corporations, and from brokers, and sue for the penalties, sharing the profits between them. If this agreement had continued in full force, and the plaintiff had recovered the penalties, it would, perhaps, give Morris a right to demand from Lawson his stipulated share, and that would be such a direct interest in the event of the suit, as would disqualify him from being a witness. But the same deposition in which we find this fact stated, informs us further, that the contract was rescinded by mutual consent; that the witness’s right to any share in the penalties, was abandoned before suit brought, and that the agreement was burnt previous to the time when he delivered his testimony. This drives the defendants to the necessity of setting up the rule in Post v. Avery. They allege that the witness could not make himself competent by any release of his interest.
When the interest of the witness-is collateral, his competency may be restored by a release or transfer of it. The rule in Post v. Avery, applies only to persons who have assigned dioses in action, on which the recovery would have been for their own use, if no assignment had been made. Its object is to prevent a party from transforming himself into a witness, by the magic of a bit of paper. It 'forbids one who assigns a claim to sell his oath along with it. But a person who has a merely incidental interest in the result, an interest which arises entirely out of the fact, that the record may be evidence for or against him in some other action, may divest himself of such interest, and if he does so at any time before he is offered as a witness, his testimony must be received. Eor instance, a stockholder in a corporation may transfer his stock, and become a witness for the company : a legatee may dispose of his interest in the estate and testify, for the executors : an attorney who has a contract for a contingent fee may release it, and give evidence in favor of his client. The rule in question is not levelled against interested witnesses, but is founded in the policy of stopping a disinterested party from testifying in favor of one who sues in his right. This question was considered and decided in the case of Hartman v. The Insurance Co., (9 Harris, 466;) and we then refused to carry the doctrine beyond the limits which I have here assigned to it.
It becomes necessary therefore to consider whether the interest [349]*349■which Morris would have had in the event of this suit was collateral and incidental, or whether he owned and transferred to the plaintiff the claim on which suit is brought. He certainly never had any right of action against the defendants, more than what any other person had. He had no vested interest in the penalties which they incurred by passing small notes. Neither had Lawson until he brought suit. Lawson got his interest by becoming the informer, not by viitue of any assignment from Morris. Lawson does not sue in Morris’s right, but’ as purely in his own right, as if Morris had never lived.
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The opinion of the court was delivered
by Black, J.
— This was an action against the defendants, (a corporation,) to recover the penalty imposed by statute for paying out bank notes of a less denomination than five dollars. The record raises certain questions, which have been fully discussed by counsel on two occasions, and very carefully considered by all the members of this court. The conclusions to which we have severally arrived are so various, that I must be understood as expressing no more than my own opinion, though I think it probable that a majority of my brethren will concur in the judgment which I would give. I shall take the points in order.
Absalom Morris was offered as a witness by the plaintiff,' and, at first, the court held him to be incompetent, on the ground of infamy, he having been convicted of a conspiracy. But he was afterwards offered again, with a pardon from the governer, and he was then adjudged to be competent. The plaintiff took an exception to the decision excluding the witness, and, on the rul[347]*347ing which admitted Mm, the court sealed a bill for the defendants. In this court, the plaintiff insists, that the witness ought to have been admitted without the pardon, because his crime was not of the class which, by law, disqualifies him. The defendants not only deny this, but assert that it was erroneous to admit him even after the production of the pardon, inasmuch as it does not so recite the record as to show that he was pardoned .of the same offence he was convicted of. All this has, from the beginning, seemed to me beside any purpose for which the case can be here. If the court did err in rejecting the witness when first offered, the error was cured by admitting him afterwards. The plaintiff had precisely the same advantage from his witness that he would have had if no error had been committed. To compel him to produce the pardon, was not even a hardship ; it was revealing but the simple truth of the case. 'The fact of the pardon did not go to the jury, but only to the court, and we are asked to reverse the judgment, not because a competent witness was excluded, but because the court insisted upon stronger and fuller proof of his competency than what the law made necessary. ' I think there never has been, and never ought to be, a reversal for such a reason. If the court supposes a witness to be interested, and rejects him, and the same witness being afterwards offered, with a release, is admitted and gives his testimony, could the party who introduced him assign his first rejection for error ? Certainly not. If we should reverse on this ground, what reason would we give ? not the exclusion of the witness, for he was not excluded; not the reading of the pardon, for that was the act of the plaintiff in error himself; not the admission of the witness, for that was_surely no fault of the defendant.
I have said that the question of the witness’s competency, on the score of infamy, is not raised on this record; and it is certainly not our duty to say anything on the subject. But as other members of the court probably think differently, and as, on anew trial, it may become very important, I will take leave to express the opinion, that the offence of the witness did disqualify him. As to the pardon, it does not recite the date of the conviction correctly, but that does not render it impossible to show that it was intended to cover, and does cover, the offence of which the record shows the witness to be guilty. If he was convicted but once in his life of any similar offence — if the pardon recites that he was in prison at its date, under the conviction to which it applies* and it can be shown what conviction that was — then it will be mere hypereriticism to pick out a discrepancy in the recital, for the purpose of defeating it. Why should a judge be required to say that it is not a pardon of a particular offence, when he knows in his conscience that it is ? It is a question for the court below to determine, upon all the facts before them, whether the [348]*348pardon is a remission of this offence or some other: and it is not, in my opinion, subject to review here. At least, there ought to be no reversal on that ground, unless the record shows a palpable mistake. When the court settled the general competency of the witness, an objection was made by the defendants, grounded on the matter of his deposition, which, it is asserted, disclosed an interest in the case. It appears that the plaintiff and the witness had a contract between them, by which they agreed to get as many small notes as possible, from the defendants and other corporations, and from brokers, and sue for the penalties, sharing the profits between them. If this agreement had continued in full force, and the plaintiff had recovered the penalties, it would, perhaps, give Morris a right to demand from Lawson his stipulated share, and that would be such a direct interest in the event of the suit, as would disqualify him from being a witness. But the same deposition in which we find this fact stated, informs us further, that the contract was rescinded by mutual consent; that the witness’s right to any share in the penalties, was abandoned before suit brought, and that the agreement was burnt previous to the time when he delivered his testimony. This drives the defendants to the necessity of setting up the rule in Post v. Avery. They allege that the witness could not make himself competent by any release of his interest.
When the interest of the witness-is collateral, his competency may be restored by a release or transfer of it. The rule in Post v. Avery, applies only to persons who have assigned dioses in action, on which the recovery would have been for their own use, if no assignment had been made. Its object is to prevent a party from transforming himself into a witness, by the magic of a bit of paper. It 'forbids one who assigns a claim to sell his oath along with it. But a person who has a merely incidental interest in the result, an interest which arises entirely out of the fact, that the record may be evidence for or against him in some other action, may divest himself of such interest, and if he does so at any time before he is offered as a witness, his testimony must be received. Eor instance, a stockholder in a corporation may transfer his stock, and become a witness for the company : a legatee may dispose of his interest in the estate and testify, for the executors : an attorney who has a contract for a contingent fee may release it, and give evidence in favor of his client. The rule in question is not levelled against interested witnesses, but is founded in the policy of stopping a disinterested party from testifying in favor of one who sues in his right. This question was considered and decided in the case of Hartman v. The Insurance Co., (9 Harris, 466;) and we then refused to carry the doctrine beyond the limits which I have here assigned to it.
It becomes necessary therefore to consider whether the interest [349]*349■which Morris would have had in the event of this suit was collateral and incidental, or whether he owned and transferred to the plaintiff the claim on which suit is brought. He certainly never had any right of action against the defendants, more than what any other person had. He had no vested interest in the penalties which they incurred by passing small notes. Neither had Lawson until he brought suit. Lawson got his interest by becoming the informer, not by viitue of any assignment from Morris. Lawson does not sue in Morris’s right, but’ as purely in his own right, as if Morris had never lived. The contract of Lawson, to share the penalties with Morris, in consideration of Morris’s services, in getting up the evidence, if it be a contract enforceable at law, (a point on whiph we give no opinion,) would give the latter a claim upon the former for the amount agreed upon, but it was collateral, like the claim of an attorney, whose client agrees to pay him a compensation proportioned to the afnount recovered. It did not make him a party to the suit, nor vest in him the right of action, but it gave him an interest in the record, because he might use it in an action against Lawson, to recover the share he bargained for.
On the whole, I cannot see that the plaintiff can legally be deprived of the testimony of this witness, on the ground that he was a party, and transferred his right of action to the plaintiff; for he never had any right to the penalty sued for, and of course could not transfer it; Lawson got his claim to it as any body else might have got a similar claim, by the act of bringing the suit and becoming the informer. Neither can the witness be excluded on the score of a present interest in the money to be recovered, for he has wholly divested himself of all interest that he ever had.
What I have said about Morris’s interest refers to his interest in the penalty. If that was divested before he was called to the book, it would not exclude him. But his liability for-costs stands upon different grounds. If he had a right to part of the penalty, even collaterally, by way of contract with the plaintiff for his services, he is liable for costs, unless the contract was rescinded before the suit was brought. This was decided in Gallaher v. Milligan, (3 Penn. Rep. 177.) The witness says in effect that the 'contract was in writing, and he and the plaintiff each had a copy. But it was agreed that the witness should have no further interest in it, and Lawson brought the suit for his own benefit, and on his own responsibility. Lawson gave up his copy of the contract, and the witness destroyed it. All this was before suit brought. But the witness kept the other copy and did not destroy it until after suit brought. If this statement be true the witness’s interest was in fact gone before the suit commenced. [350]*350The court must take it for true in determining the competency of the witness, but the jury may believe it to be false, and if they do they must reject all the evidence he gives, not only on the ground that he is interested, but upon the maxim falsum in uno falsum in omnibus.
When the plaintiff and his witnesses entered into the conspiracy, for which they were afterwards indicted and punished, they undoubtedly encountered about as much public hatred and contempt as a mortal man can live under. But, how far this should affect the credibility of the witnesses, is not for us, but for a jury of their country to judge.
The next question is, whether the railroad company is liable for the acts of the ticket agents and conductors. I concur fully in the opinion, that the defendants are not liable under the statute, unless the notes were paid out by the corporation. The corporation did not pay out the notes, unless the officers immediately chosen by the stockholders to manage the affairs of the company*, either passed them away with their own hands, or else authorized their subordinate agents to do so. A servant of the corporation who does an act forbidden by law, is responsible for it in his own person; and the corporation is not presumed to have given him any authority for such an act. It is very clear from this, that where a conductor pays out an illegal note in change to a passenger, the penalty cannot be recovered from the company, without proof that he had the authority of the president, directors and treasurer, or some of them. But, is it necessary that this proof should come in any particular form ? Will nothing do but a solemn resolution of the directors in full meeting assembled ? May it not be inferred from circumstances ? Surely, it may. In the present case, the offer was to prove, not only that a large number of small notes was passed upon two persons, in the course of a short time, but that it was the open and notorious custom of (as (we understand it) all the ticket agents and conductors employed by the defendants, to issue notes of a similar character. Now, what is the natural presumption from this ? May a jury infer that the superior officers of the company knew of the custom and approved it? or must the court, as a matter of law, determine without submitting it to a jury, that all the conductors and agents were habitually violating the orders of their masters, as well as an act of the legislature ? It is for the jury to say what is the natural presumption which arises out of such facts, and there is no rule of policy which requires us to make any legal or fictitious presumption on the subject. I will not say what verdict ought to be given on such evidence, but I am very clear, that no man who is not a juror in the case has a right to decide that the president and directors were ignorant, and there[351]*351fore innocent of a custom which was open, public, and notorious. If a corporation cannot be held responsible for the acts of agents and servants, without proof of express authority beforehand, or distinct ratification afterwards, then the law upon which these defendants are sued, as well as a great many other laws, must remain a dead letter. The managers of a railroad company may cause any statute to be violated by their subordinates, without giving orders which are capable of direct proof. The treasurer takes from the ticket agent all the gold and silver he has collected, and leaves him small bills in place of it: the agent would understand the exact meaning of such a hint. The president passes along the road, and sees all his conductors paying out the forbidden paper, without censure or disapproval: the habit is as sure to be continued, as if he had told them to go on. If these bills had been passed in a few instances, by one or two of the company’s servants, it would not be enough. But .it seems to have been a general habit for a long time, until it became a notorious thing. The managers ought to be presumed to know at least as much about the conduct of their agents, as was known to everybody else. If they knew of this, and yet suffered it to go-on, the agents could not but know that they had the approbation of their superiors; and if they had, the corporation is responsible.
Morris, in his deposition, refers to a list or schedule of the small notes passed by the defendants’ agents to him, and in his presence, which list is appended to the deposition. This is objected to as secondary evidence; and so perhaps it might be called, if it were given alone. But the plaintiff’s offer is to produce with it the notes themselves, which, it cannot be denied, are the best evidence the nature of the case admits of. But the notes were not shown, when the witness’s deposition was taken. This makes no difference, if the jury be satisfied that the notes produced on the trial, and those from which the schedule was made out, are the same. The offer ought not to have been rejected. I am for reversing the judgment.
Judgment reversed, and venire de novo awarded.