Gregory v. Dodge

14 Wend. 593

• Court: Court for the Trial of Impeachments and Correction of Errors
• Decided: December 15, 1835
• Status: Published

Opinion

The following.opinions were delivered:

By Mr. Justice Nelson.

Whether Kingsbury is a competent witness for the defendant below, is to be determined by a careful consideration of his testimony taken by the examiners, as the exception, if available at all, (a point I am not disposed to examine, though j must say I think it very loosely taken,) was founded upon it; and it necessarily follows, in the investigation and decision of the question, we must look at the whole of it, and upon the assumption that it is true. Had the complainants desired to put the question upon any different footing, they should have objected preliminarily to him on the ground of interest, and proved it by other witnesses. Having relied upon the interest proved by the witness himself, we must take all the facts brought out by him, and decide upon the whole matter as presented by him.

The true construction of the article of agreement between the witness and the complainants, of the date of the 29th June, 1826, constitutes them general partners. The case of Dobb v. Halsey, 16 Johns. R, 34, is very much in point on this question. A written agreement was there proved between the plaintiffs and one Moore, by which the latter covenanted to superintend the saw pits and lumber yard of the plaintiffs for one year,in consideration of receiving one-third part of the net profits. The court decided that the agreement created a partnership, as well as it regarded the partners themselves as third persons; and cases were referred to in support of the principle upon which the decision was placed. Indeed I do not remember that this was made a serious question on the argument, nor do I deem it very material in the result. I have said that the witness and complainants were general partners. The latter were to remit and consign to Kingsbury “ vessels, goods and merchandize,” to be by him received, managed, sold and bartered, agreeably to instructions, or in such other way and manner as he should think best for the benefit of the concern. Here is no restriction to deal in a particular article, or in a specific branch of business. “ Goods and merchandise” are terms broad enough at least to embrace the whole of the business carried on by the parties with the house of Dodge & Green. I have not been able to discover any part of the trade or business carried on by Kingsbury with this house, but what is fairly embraced within the scope of the partnership; and indeed no part of it but what appears to have been conducted in fact with a direct reference to the establishment of the copartners at Marblehead. I have no difficulty, therefore, in arriving at the conclusion that Dodge and Green were justified in regarding the complainants and Kingsbury as partners in all their dealings with them; and this conclusion is supported as well by the construction of the written agreement above referred to, as by the testimony of Kingsbury. He proves that he was connected with the complainants in all the trade carried on by the parties between Marblehead, New-York and Albany, of which he had any knowledge ; and the correspondence produced as exhibits fully corroborates this view of the case. Assuming then the ground that Kings-bury, Gregory <fe Selman were partners in all their respective dealings with the house of Dodge & Green, about which we do not entertain a doubt upon the evidence in the case, the main question with which we started is reduced to narrow limits, and divested of most of its intricacy.

The bill is filed to obtained an account growing out of the mutual dealings of the firm of Kingsbury, Gregory & Selman on the one side, and of Dodge & Green on the other. Kings, bury not having been made a party complainant, is called as a witness for the defendants, and is objected to on the ground of interest. At the first view it appears quite obvious that his interest lies wholly against the party calling him, as he would be entitled to one half of any balance that might be found due his copartners. Such would be the plain and simple conclusion, were it not for the fact that he is individually holden to the defendants on a portion of the account. It appears throughout the whole of the operations of the two houses at Albany and Marblehead, that the business was conducted at each place in thenameof the persons immediately superintending it. Drafts and notes were drawn, and acceptances given in the name of Kingsbury at one place and of Gregory & Selmían at the others; and though Dodge & Green have a right to look to the partnership responsibility, when it is established, they may also, if they please, seek their remedy against Kingsbury individually to the amount of the paper drawn in his own name, and which is now in their hands. The accounts show some $1000 or more of this description of paper. It W'as all drawn, as sworn to by Kingsbury, for the benefit of the general concern, and the proceeds applied accordingly. The argument in support of the objection to the‘witness is, that he is called to' prove facts that will discharge him from his individual liability on these accounts. This is effected by applying to the payment of them other accounts in which the complainants own one half, making the witness interested, that is, gain by this operation half the amount from which he is thus discharged ; because, as he is entitled to only one half of the fund the complainants are seeking to collect, any deduction from it by a demand on which he is solely responsible, makes of course a difference in his favor of half the amount. In other words, he pays his own debt by applying another half which is the complainants’. For this reason they object to him. If the case stood upon this footing, it would fall within the principle decided in Marquand v. Webb & Webb, 16 Johns. R. 89). That was an action by the plaintiffs below (the Webbs) to recover for repairs done to the Spitfire, a privateer. One Gomez, who testified that he was a part owner, wás offered by the plaintiffs to prove that the defendant was also a part owner. The court, after admitting the difficulty of the point, upon full consideration rejected the witness, putting the case upon the ground, that being liable himself for the repairs as part owner, he was interested in multiplying the number of owners, as in the contribution it lessened the amount he was bound éventually to pay. If the defendant succeeded, the witness would be left responsible for the whole of the repairs ; if the plaintiffs, he would be holden to contribute at most but a portion. It was also believed that in a suit by the defendant against the witness for contribution, the record of the former recovery would be conclusive evidence of the fact of part ownership, as he would not be permitted to allege that the recovery

was wrongful. This observation was macfe to meet an argument that in a suit against the witness for contribution, if it could be shown that the plaintiff was not a part owner, he might recover the whole of the repairs, as the witness confessedly was a part owner. I may add here, that the case of Ashman v. Goldney and another, 2 Starkies Cas. 414, and Blacket v. Wier, in bank, 3 Barn. & Cress. 385, are directly opposed to the case of Marquand v. Webb, and the answer given to the above argument there used in favor of the interest was, that the record of the former recovery would not be conclusive of the fact of partnership, and that if the defendant was not a partner with the witness, he might afterwards recover the whole amount in a suit against him. This of course could be only upon the assumption that the first recovery was without foundation, or wrongful; a somewhat questionable ground upon which to sustain a suit, and rather a novel mode of redress for an unjust judgment. Ira the recent case of Ripley v. Thompson and others, 12 Moore, 55, the two cases above referred to seem to have been overruled, though it does not appear from the report they were cited on the argument. The decision there is in conformity to the principle of the decision of the supreme court in Marquand v. Webbs. The copartner, who was offered as a witness for the plaintiff", was rejected on the ground that he was interested in procuring a verdict against the defendants,it having been shown that he was himself prima facie individually holden for the entire demand ; and if collected of them, he would be liable only to contribute his share as partner. He was therefore interested in throwing a part of the debt upon the defendants, as he thereby lessened his own. The idea that the defendants could recover of the witness the whole amount, if in fact they were not partners and the recovery therefore wrongful, the ground assumed by the judges of the king’s bench in Ashman v. Goldney, and Blacket v. Wier, áid not occur to the judges of the court of common pleas, or if it did, was not deemed a satisfactory answer to the objection. Thus far the principle of these cases seems to be applicable to the present; because, to simplify the question, the case may be viewed as if Dodge & Green had brought a suit to recover this account, (I mean the account for which Kingsbury is individually holden) against the complainants, and Kingsbury had been called as a witness to prove that it was a partnership account, and thereby secure a recovery against them ,• it would then stand on the footing of Marquand v. Webb, in the supreme court, and Ripley v. Thompson in the common pleas of England. He would then throw half the amount upon the complainants, instead of being obliged tq pay the whole of it; they could not compel him to contribute more than half.

There is however a feature in this case not belonging to either of the above cases, and which I apprehend must clearly distinguish it. I have before said that the interest of Kingsbury must depend upon a consideration of the whole of his evidence, as it is put upon that ground by the exception and mode of proceeding: the complainants contending that he shows himself to be interested. Now it is clear, both from the articles of partnership and the evidence of Kingsbury, that Gregory & Selman are ultimately responsible for the whole of this account. They were to furnish for the Albany store all the “ goods and merchandize,” and Kingsbury was to sell, barter and dispose of the same, and the net profits were to be equally divided. Accordingly when an arrangemement was made with Dodge & Green to permit their credit or responsibility to be used in purchasing goods in the city of New-York, Gregory directed that whatever goods were bought by means of such credit, should be charged to the account of the complainants. Under this arrangement Kingsbury was authorized to buy goods in the city, and draw upon Dodge & Green, and the drafts were to be met when due by the complainants; or he was to draw upon them directly in favor of Dodge & Green, which in the course of the business amounted to the same thing. All their dealings subsequently were obviously conducted upon this footing. How then is Kingsbury interested ? He is no doubt liable upon these drafts, and also on notes given in exchange for acceptances of Dodge & Green, which went into the general concern; and therefore it is said he is interested in throwing this liability upon the complainants. But suppose a recovery against him by Dodge & Green, and he obliged to pay them, he has a remedy over against the complainants. The debt is theirs. The goods for which these drafts and notes were given were to be charged to them, and if they had kepi their engagements, would have been taken up. The position of Kingsbury, then, is this: if the account is now settled in this suit, he is discharged from his individual liability ; if not, he may be obliged to pay it, and to look to the complainants. The remedy may be attended with more difficulty in paying the account and being turned over to the complainants for reimbursement, than at once cancelling it by an adjustment now between these parties; and to the extent of this supposed difference the witness may be regarded as not indifferent. But upon the facts the remedy is as certain in the one case as the other. The witness may and will have a bias, because the discharge from liability is more speedy and practically more certain in one way than in the other? but upon established principles I think he is legally indifferent. Buckland v. Tankard, 5 T. R. 578, would sustain the objection on the ground of preponderance of difficulty ; but that case is not now considered law in England. That was a suit by the endorsee against the acceptor, and the defendant called the drawer, who had also endorsed it in blank, and proposed to prove by him that the plaintiff had no interest in the bill, as the drawer had put it into his hands merely to receive payment from the acceptor. Lord Kenyon rejected him at the trial on the ground of interest, and when the case came up for a new trial, he adhered to his former opinion. It was contended he was indifferent, as in the event of a verdict either way he had a remedy. If the plaintiff succeeded, he could recover the amount of the bill from him ; if he failed, then of the defendant, the acceptor. But Lord Kenyon said if the plaintiff should succeed, the witness would be put to much greater difficulties to get back the money, than he would if he should be foiled by means of his testimony. In Birt v. Kershaw, 2 East, 461, Lord Ellen-borough says, I know of no other than the case of Buckland v. Tankard, which goes on the ground of more or less difficulty in the witness establishing his interest against one or the other of the parties. All the other cases, he says, go on the broad ground of interest in the witness. Mr. Phillips, p. 55, and Mr. Starkie, part 4, p. 301, both refer to this case, and consider the principle of it as overruled, and the objection going only to the credit of the witness. The case ]ias a]s0 |)een disregarded in Massachusetts, 13 Mass. R. 210. A position taken by the court in Ridley v. Taylor, 13 East, 175, is directly opposed to the above case, and contains the true principle, and the one upon which I place this decision. There one partner drew a bill in the partnership name, and gave it in payment to a separate creditor in discharge of his own debt, and in an action by such creditor against the acceptors, it was ruled that either partner might be called by the defendant to prove, that the partner who drew the bill had no authority to do so in the name of the firm, and that the bankruptcy of the partners would not vary the question as to the competency of the witness. As to the innocent partner, it was conceded if the plaintiff recovered he would be liable to the acceptors, and therefore he appeared to be interested to defeat the plaintiff; but it was answered if the plaintiff recovered and the witness thus became liable, he had his remedy over against the other partners. He therefore stood indifferent in consequence of the remedy over to reimburse the, amount he might be obliged to pay; and the remedy there as in this case against an insolvent copartner did not vary the question. Phillips and Starkie lay down the principle as established law. Indeed this rule of evidence was the necessary result of overruling the case of Buckland v. Tankard; it rests upon the broad ground that to render a witness incompetent there must be an existing, certain and definite interest: not remote or contingent. More or less difficulty in guarding his interest, in one event than in the other, is neither certain nor definite. It is contingent and remote. Mere preponderance of difficulties is of too uncertain and contingent a nature to afford any practical rule. In this case, if the account of Kingsbury should not be can-celled in the adjustment of. the general accounts between the complainants and the defendant, he might be called upon to pay it; and then he must seek it of the complainants. A litigation might or might not be necessary, and if it should be, greater difficulty of course would attend that mode of saving himself harmless than the other. All this, however, depends upon circumstances which might well bias his mind and influence his credit; but the certainty of the remedy over in law cannot be disputed upon the facts, and it is this alone that is regarded in the question of competency, as settled by abundant authority.

By Senator Tracy.

There is scarcely any subject that occasions greater embarrassment to the ministers of the law, or that has produced a greater multiplicity of decisions than the extent and application of the rule for excluding witnesses on account of interest. The first impression would be, that nothing could be more simple or easy, when all the facts were known, than to decide whether a witness stood in such a relation to the subject matter of controversy, that his testimony could be productive of a personal advantange to himself ; and yet it is found that the relations and bearings of litigations are frequently so ramified and complex, that when all the facts are ascertained that are necessary for showing the position in which the witness stands, it often becomes a question of extreme nicety, 1 may almost say of metaphysical subtlety, to determine whether he can be so affected by any decision of the cause, that he has a definable interest in favoring one party more than the other. These circumstances have caused a long felt anxiety, productive of many attempts to fix some simple general rule, that might be applied as a universal test, to the multiform questions of this sort, which continually are presenting themselves. Such a general rule, which for its reasonableness, brevity and apparent simplicity, lias commended itself to the memory and confidence of the profession, seemed to be laid down by that distinguished jurist, Mr. Justice Buller, in Bent v. Baker, 3 T. R. 27; which is, that the competency of a witness is to be tested by this enquiry, “ Is he to gain or lose by the event of the suit ?” Experience, however, teaches, in respect to this, as to many other rules intended to simplify the process of human reasoning, that it is much easier to invent an axiom than to agree on its application to particular cases. And when we are called to examine the numerous decisions that have been made, as well since as before the promulgation of this rule, and are compelled to see that many of them are hardly reconcileable, and some of them are plainly in collision with others, and this, notwithstanding that the tribunals by which they are made all recognize and jntend to uphold the same rule, we are forced to doubt whether this branch of the science of evidence has derived any aids from the great minds that have labored to simplify ancj whether, with all the general rules and particular decisions that fill the books, we are advanced one inch beyond the original proposition, that “ an interested witness is incompetent to testify.”

These reflections are suggested by the unexpected difficulties I have encountered in the investigation of this case, and in my attempts to find some direct, plain, uncontradicted decision that would settle the question, whether Kingsbury is or is not a competent witness for the respondent in this suit. The facts to show his relation to the parties, and the purpose and bearing of his testimony upon them, are few and simple ; but the effect of his testimony upon himself is more intricate and disputable. These facts are, that the complainants, who were merchants at Marblehead, in Massachusetts, having had commercial dealings with the defendant and his partner, now deceased, merchants in New-York, file their bill against the defendant, as surviving partner, to compel him to account for a large balance claimed to be due them. The defendant, in his answer, as one ground of defence, sets forth an indebtedness from Kingsbury, the witness, and alleges that the complainants were partners with Kingsbury, and jointly liable for his indebtedness. To establish this fact he calls upon Kingsbury, who testifies to his indebtedness to the defendant, to the joint liability of the complainants with him, to their insolvency, and to their large indebtedness to himself. The question is presented, has not Kings-bury such an interest in the event of the suit as disqualifies him from testifying 1 That he was interested in some of the matters to which his testimony related cannot be disputed, but it is denied that he had any interest in lessening or defeating the recovery by the complainants ; on the contrary, as he claimed to be their partner, and therefore could call on them for a share of whatever they recovered, it was his interest to make their recovery as large as possible ; and even admitting that he had an interest in establishing a partnership between himself and the complainants, so as to make them assist in paying a debt, which he confessedly owed to the defendant, yet this at most only balanced the interest which he had, to increase the recovery by the complainants, a share of which would belong to him, as their partner. This is the substance of the reasoning furnished by the chancellor, in support of his decree5 and it is objected that the witness was not called by the defendant, to prove Ms partnership with the complainants, in their direct dealings with the defendant, or how, in this respect, the accounts between them stood, but simply to charge the complainants with a joint liability to the defendant, for a large and acknowledged indebtedness contracted in his own name. In other words, the witness, admitting his own indebtedness, is called to make the complainants, by his own testimony alone, pay the whole or the half of it.

The principle that a witness is competent, though he has an interest in the subject matter of controversy, if it is equipoised by some other interest, so that he will lose or gain equally, let the event of the suit be what it may, is perfectly familiar j but the application of it is often perplexing and difficult, and the decisions under it are far from being harmonious and consistent. It is not surprizing that they are not, for the faculties of the human mind are not so uniform in their operations that we should expect always to see wise and honest men drawing the same inferences from the same facts. To ascertain with certainty that the conflicting interests of a witness are exactly equiponderant, is in some cases a matter of extreme nicety, requiring the most laborious efforts of the clearest intellect, while the conclusion that a witness’ interest is necessarily balanced, because there are motives in both scales, is one easy to be reached by an unfatiguing process of reasoning. This is to cut, and not to untie the gordian not. When the slightest preponderance can be discovered between two conflicting interests, this difference is to be considered an absolute interest, not countervailed; for unless we regard the slightest excess to be as much a real interest as if that excess had been the only subject in dispute, we shall find it difficult, by legal reasoning, to stop short of the conclusion that the slightest possible interest in the one scale will suffice to counterbalance the greatest possible interest in the other. I think it is the convenience of considering conflicting interests as necessarily counterbalanced, which, by little and little, has led some courts to the broad conclusion to be found in some of the decisions which I propose now to notice.

The first case which I find, where the question was distinctly raised, whether a plaintiff could call his debtor to prove that the defendant in the suit was also liable, as well as himself for the debt, is that of Lockhart v. Graham, Strange, 35. From the short note made of the case it appears that it was an action against one of three joint and several obligors, and one of the other obligors was admitted, to prove the execution of the bond by the defendant. The case is very bald, and the conclusion of the court is all that is given. Resting on this case, there comes, after a long interval, that of Blackett v. Weir, 5 Barn. & Cress. 385, where a witness was allowed to prove the defendant jointly liable with himself. In this case the liability of the witness appeared only by his own testimony on voir dire, and Littledale, J. seemed to regard this as an important circumstance. But in the next case, in the king’s bench, Hall v. Curson, 9 Barn. & Cress. Abbott, Ch. J., decided this circumstance to be unimportant, and reiterated the decision on the broad ground that the interest of the witness was counterbalanced. In addition to these authorities, the respondent’s counsel has cited 2 Starkie’s Ev. 302, which will be found, however, to rest wholly on the marginal note of the report of Ridley v. Taylor, 13 East, 176. This note is not sustained by the case, which involves no question of the competency of witnesses. On the other side of this proposition the cases are more numerous, and in courts equally respectable. State v. Penman, 2 Desaus. 4 and 5. The court of South Carolina decided that a partner in a company was not an admissible witness to prove that another person is a member; especially where there are written articles. About the same time Lord Ellenborough decided at nisi prius, 3 Campb. 317, that a person purchasing goods in his own name is not a competent witness to prove that he purchased them as agent for the defendant. Brown v. Brown, 4 Taunt. 752, the decision was, that in an action upon a joint contract against two, one of them who had suffered judgment by default was incompetent to prove that the other was jointly liable with him, because he would, by his own testimony, obtain contribution from the other on a debt for which it was already established that he was liable. In a case in our supreme court, Marquand v. Webb, 16 Johns. R. 89, decided it would seem, without knowledge of the two cases last cited, it was ruled that a person confessedly liable for a debt is incompetent to prove that the defendant is also liable with him. Spencer, J. in giving the opinion of the court says, that though he has not met with a case directly to the point, he was clear, on principle, that the witness had an interest in multiplying his co-debtors, and thus diminishing his own responsibility ; and that where a witness will derive a certain advantage from establishing the fact in the way proposed, he cannot be heard, whether the benefit be great or small. The decision in Shiras v. Morris, 8 Cowen, 60, is analogous to Lord Ellenborough’s, 3 Campb. 317, and distinctly corroborative of it. In Ripley v. Thompson, 12 Moore, 55, a witness was called to prove that the defendants were jointly liable with him for a debt which he had contracted, and was rejected as incompetent: Chief Justice Best observing, “ If he were allowed to prove that others were liable jointly with him, he would exonerate himself from paying three fourths of the debt, and throw the burthen on the defendants.” There are several other cases having some bearing on the question, which I have examined, but as their relation to it is not as direct as those above cited, I shall content myself with merely referring to them by their titles. They are, Beit v. Hood, 1 Esp. R. 20 ; Young v. Bairner, id. 103; Evans v. Yeathead, 2 Bing. 133 Hall v. Cecil, 6 Bing. 181 ; Hudson v. Robinson, 4 Maule & Selw. 475; Cossham v. Goldney, 2 Stark. 365; Simons v. Smith, 2 Ry. & Moody, 29 ; Fawcett v. Wrathall, 2 Carr. & Payne, 305; Black v. Goodman, 1 Bailey, S. C. R. 201; Gay v. Cary, 9 Cowen, 44. If, then, authority is appealed to, for settling the question in the present case, we find decisions both ways, and though there is a decided preponderance against the admissibility of the witness, yet those on the other side are entitled to great respect; and if, on examination, are found best stained by principle, they will afford sufficient warrant for deciding this case in accordance with them.

But after mature reflection, the more carefully exerted because of a first impression the other way, I am persuaded that the principle of those decisions, at least as it is illustrated by the facts of this case, is erroneous; at any rate, that the witness, Kingsbury,under the circumstances in which he was offered, was not a competent witness for the defendant, to charge the complainants with an indebtedness for which prima facie he alone was liable. It is not denied that this was the direct effect of his testimony, nor but that to this particular point he had a certain interest; but this interest, it is said, was counterpoised by the fact that being a partner with the complainants, he could compel them to contribute, in case he should first pay the debt, and therefore it was indifferent to him whether they helped him pay it in the first instance, or repaid their share of it to him after he had paid the whole of it. The fallacy of this argument consists in assuming the very fact in dispute, that the witness was in truth the partner of the complainants, and they liable to pay debts contracted in his name. This is the precise position which the witness is called to establish, and which he has an interest in establishing, though it be contrary to the truth. That it must be so appears from this, that the moment it is admitted he is a partner with the complainants it becomes unnecessary for the defendant to call him ; for the fact of the joint liability of the complainants being already established, the conclusion for which the defendant contends follows of course. If it may be assumed that witnesses will swear to no more than the truth-, though they may benefit themselves by doing so, and we are to take what they do swear to as evidence that they have no interest in swearing to it, the whole doctrine of the disqualification of witnesses is exploded. I take the true principle to be, that if the case shows, without the witness’ testimony, that he has an interest in the event, he shall not be admitted to swear to a different state of facts, which, when established, make him an indifferent witness; and for this plain reason, that there is the same probability he will swear that he is indifferent, when he is not, as that he will swear falsely to any other proposition involved in the canse. The King v. Prosser, 4 T. R. 578 : Bulier, J. observes,66 the question whether evidence is admissible or not, depends on the subject to which it applies.” Mow what is the subject matter to which Kingsbury’s testimony applies ? Is it the transfer of the payment of a debt due ostensibly by himself alone to others, so that they shall immediately pay the whole of it, and ultimately, perhaps, he repay half of it back to them ? At first view, certainly, this is as direct an object as can be imagined. But it is said that the judgment in this suit will not be conclusive between the witness and the complainants ; and that if he makes them pay wrongfully his own debt, they may recover it back of him. Admitting this to the fullest extent, what does it amount to ? Mothing more than is true in the case of every interested witness. If the liability to a conviction for perjury, to which every witness testifying falsely is exposed, is not deemed a sufficient security, where a witness has an interest so to testify falsely, why should a civil suit for the recovery of the money he has sworn into his own pocket be so regarded, and especially in a case like the present, where it would be more difficult for the complainants, if wronged, to establish the fact, in an action for the recovery of the money back, than in a criminal prosecution for perjury?

I put this case on the broad ground presented by Chief Justice Best, in Ripley v. Thompson, 12 Moore, 55; but there is a strong distinguishing fact disclosed, which is, that the complainants are indebted to the witness, and are insolvent. But the chancellor says, “ The fact that they were insolvent did not alter the nature of his interestj because, if he had obtained a decree against the defendant, he could, by filing a bill to settle the copartnership accounts, have prevented them from receiving the money until the whole copartnership debts, including any balance which might be due to him from his copartners, were settled or provided for.” I confess I do not understand the force of of this remark, for I cannot see how the witness, who acknowledges himself indebted to the defendant, is to obtain a decree against him, and especially when he is not ¡mpleaded as a party in any suit with him. Besides, there must be a great difference, whether a person pays a debt which he owes, by offsetting a debt due to him from a foreign insolvent, or pays the debt from his own pocket and resorts to the insolvent for an equivalent. In Buckland v. Tankard, 5 T. R. 578, it was held that a witness was incompetent, because, in one event it would be more difficult to recover the same sum of money than in another. Though the principle of this case, in its fullest extent, is questioned, there is, I think, no reason for questioning it to the extent of the decision in Markland v. Jefferson, 2 Pick. 240, where it was ruled, that if the effect of the testimony is to put money into the witness’ hands which he can retain for a debt due to him from an insolvent, he is incompetent. This principle alone decides the inadmissibility of the witness.

Another question remains for examination—which is, whether the objection to the witness was made at such time and in such manner, that the party could afterwards avail himself of it. This depends essentially on the effect of the 85th rule of the court of chancery, and its application to this case. Except for this rule, there can be no reasonable doubt that the objection was sufficient in time and mode. In Swift v. Dean, 6 Johns. R. 538, which was in this court, Justice Thompson held that the rule is equally settled in equity as at law that if a witness, at any stage of his examination, discovers himself to be interested, he is to be rejected and his testimony entirely set aside. This principle, I believe, has never been disputed ; and it would be decisive in this case, if the examination of Kingsbury had been completed as well as commenced before the adoption of the new rules. That took place in January, 1830, and the examination of the witness commenced on the 10th of December preceding, before one examiner, and was resumed and completed in April following before another. It is not necessary, I think, to inquire as to the propriety of applying the rule to an examination already commenced ; for it strikes me that the note made by the second examiner, when the examination was resumed before him, is enough, under the circumstances of the case, to make out a compliance with the spirit of the rule. This rule, after declaring that no objection to the competency of a witness shall be made at the hearing, unless such objection was made before his testimony was closed, proceeds to direct the course the examiner shall adopt in case the witness is objected to,- which amounts only to this: that he shall note the objection and proceed with the testimony, if insisted on by the party offering it, notwithstanding the examiner shall be satisfied that the witness is incompetent. " The object,” says the chancellor, “ of requiring the objection to the competency of a witness to be made before his testimony is closed, is to enable the party calling him to obviate the objection by a release, or if that cannot be done, by substantiating the same facts by other witnesses.” The real purpose of the rule, then, being to give seasonable notice, we have only to be satisfied that such notice was either given to the party or waived by him. The note of the second examiner is as follows : “ This examination is continued before me by the consent of the counsel of both parties, the complainant’s counsel reserving every objection to the competency of the witness, and all other legal exceptions.” Now, though this note does not show expressly a literal compliance with the requirement of the rule, it seems to me that such a compliance can be fairly inferred from it. The examiner, in the presence of the adverse counsel, reserves for the complainant’s counsel “ every objection to the competency of the witness.” This he could not properly do, unless the objection had been stated, or the statement of it waived by the opposite counsel; and as it is fair to presume that the examiner both knew his duty and did it, it is also fair to infer that one or the other fact occurred, and therefore that the defendants’ counsel had sufficient notice to warn him to sustain or supply the testimony of the witness. I throw out of view the probability that he could do neither, and confine my conclusion to the apparent presumption that he must have understood the ground on which the competency of the witness could be impeached. I shall vote for reversing the chancellor’s decree.

By Senator Edwauds.

Tod etermine whether the testimony of Kingsbury was properly excluded, it is necessary to inquire whether his competency as a witness was duly objected to; for

if his competency was not duly objected to, his deposition should not have been suppressed. His examination was closed without the exception being made which the counsel for the complainants had reserved to himself the right to make. Had the counsel intended that the right to except should continue until the hearing upon the pleadings and proofs, he should so have expressed himself. He did not do so ; and it appears to me that the power to exercise the right should not be considered as existing beyond the time within which the objection to the witness might legally be made—neither under the first or second reservation made by the counsel for the complainants. The next inquiry then is, at what time could the objection to the competency of the witness be legally made ? The chancellor, under the Revised Statutes, 2 R. S. 175, has established a rule regulating the practice in this particular, which expressly prohibits any objection to the competency of a witness from being made at the hearing of a cause, which was not made before the examination was closed. The reason of the rule is obvious: it is to afford the opposite party an opportunity to release the interest of the witness and restore his competency, or, if that cannot be done, to supply the testimony rejected, by other testimony which he may have it in his power to obtain. If the practice contended for by the appellants’ counsel prevails, the party in whose favor the testimony was taken is deprived of the opportunity to supply the testimony rejected, by other testimony, though he may have it fully in his power to do so. Since the rule of the court of chancery above referred to has been established, requiring the objection to be made as to the competency of a witness before the examination is closed, the practice has been uniform, and recognized by repeated decisions. The Mohawk Bank v. Atwater, 2 Paige’s Ch. R. 60. Rogers v. Dibble, 3 id. 241. Town v. Needham, id. 552. The excepting to the competency of a witness in the court of chancery, on the ground of interest, is analogous to the practice of the courts of common law, by which the party is permitted to make his objection at any time when the witness appears to be interested in the course of his examination. 1 T. R. 717. Caton v. Lenoxar, 5 Randolph’s R. 44, 69, Peake’s Ev. 195, Talman v. Dutcher, 7 Wendell, 181. Testimony not objected to is considered as received by consent, and in such case there would be nothing to ground a motion upon, to support it at the hearing. Jackson v. Cady, 9 Cowen’s R. 150 ; 5 id. 123, 173. It is true the examination of the witness was commenced before the adoption of the 85th rule of the court of chancery, to which I have alluded ; but it was not closed until the 5th of April after, which afforded the party a sufficient opportunity to have complied with it, for he had a right to take the exception at any time before the examination was closed j and having the right, and not having availed himself of the benefit of it, he ought not to have prevailed on his motion to suppress the testimony of Kingsbury, or to have obtained a decretal order excluding his testimony on the reference to the master.

If the objection to the competency of Kingsbury as a witness had been made in due time, I cannot readily perceive how the appellants’ objection to his competency on the ground of interest could have prevailed ; for it appears to me, if he was interested at all, he was interested to sustain the appellants. If he was a copartner, and they had recovered, he would have been entitled to a portion of the amount recovered ; but I forbear to enter into an examination of that part of the case, as I am for affirming the decree of the chancellor, on the ground that the appellants were too late to make their objection on the hearing of the cause, not having excepted before the examination was closed.

By Senator Maison.

It appears to me not to be a matter "of such moment, to decide whether Kingsbury was an interested witness or not. Conceding, for all the purposes of this cause, that he was a deeply interested witness, yet I know of no rule which will exclude his testimony, unless he be objected to at or before the closing the proofs in the cause. Fair practice and common justice require the objection to be made before closing the proofs, that the opposite party may have an opportunity to establish by other witnesses what he has proved by him. If a party will not object, he admits the competency of the witness. To allow of a different rule would lead to great injustice. It is a trite, but nevertheless a very equitak]e saying, if a party will not speak when he ought to, he shall not be heard when he wants to speak. If no objection be made, the party is well justified in supposing that it is not jntended to be made, and resting upon such supposition, to produce no further testimony, To allow the objection to be made for the first time at the hearing, would be taking the party by surprise, and at a time when it is out of his power, according to the practice of the court, to have any further examination of witnesses. If it be intended to object to a witness on the ground of incompetency, the objection must be clearly and distinctly made, in decisive and unequivocal terms ; there must be no room for doubt that the objection is made, and meant to be insisted upon. The party in this case made no objection to the witness before the examiner; he merely announced that he reserved the right to object to the witness’ competency. He did not make it then, but reserved the right to make it at some future day. This he had a right to do; for peradventure, upon the closing of the proofs, it might appear that the testimony of the witness would not influence the decision of the cause one way or the other. If, however, the party supposed the testimony to be material, he was bound, before the closing of the proofs, to make the objection distinctly. He has no right to reserve his objection beyond that time ; if he had, he would have a right to reserve it until he came to this court, and here for the first time make it. Such a proceeding is not to be tolerated.

On the question being put, Shall this decree be reserved ? the members of the court voted as follows:

In the affirmative—Senators Tracy, Lacy, Lansing and Kemble—4.

In the negative—The President of the Senate, Chief Justice Savage, Mr. Justice Nelson ; Senators Armstrong, Beardsley, Cropsey, Downing, Edwards, Fisk, Gansevoort, Halsey, Loomis, Mac Donald, Mack, Maison, Van Schaick, and Willes—17.

The following resolutions were adopted:

Resolved, That Kingsbury was a competent witness. On the question of the adoption of which resolution, the members of the court voted as follows:

In the affirmative—The President of the Senate, Chief Justice Savage, Mr. Justice Nelson, and Senators Arms-strong, Beardsley, Cropsey, Downing, Fisk,Gansevoort, Halsey, Looms, Mac Donald, Maison, Willes—14.

In the negative—Senators Tracy, Lacy, Lansing, Kemble, Mack, Van Schaicr—6.

Resolved, That the objection to the competency of the witness ought to have been made before the closing of the proofs. On the question of the adoption of which resolution, fourteen members of the court voted in the affirmative»

Whereupon the decree of the chancellor was affirmed.