Potter v. Inhabitants of Ware

55 Mass. 519

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1848
• Status: Published

Opinion

Metcalf, J.

The only question that has been argued in this case is, whether the plaintiff’s attorney, who acted as counsel at the trial, was a competent witness for his client; and we know of no common law authority for excluding his testimony, besides the two very recent decisions in the English bail court, which were cited by the counsel for the defendants. By what authority the judges, sitting in that court, made those decisions, we do not know; whether by virtue of the rules which the judges of the three chief courts of law in England are empowered, by recent statutes, to make for the uniform regulation of practice in all those courts, or by virtue of the superintending control which those courts exercise over their own officers. See Smith on Actions at Law, 11, 24. Whatever that authority may have been, we have no such authority. We cannot exclude a witness by reason of any views which we may entertain respecting the policy of permitting-him to testify. We can only administer the law as we find it to be. -And by the common law, persons are competent witnesses, unless they are made incompetent by want of capacity, or of religious faith, by infamy, or by direct interest in the result of the cause. Witnesses are every day permitted to testify, whose wishes for the success of the party who calls them are as strong as those of the party’s attorney or counsel. And until the long established rules of evidence are changed by legislative enactment, we cannot exclude a witness, merely because his testimony is to be given in behalf of his client. Whenever, except in the bail court, attorneys and counsel have been rejected as witnesses, it has been on the same ground on which others are excluded; namely, direct interest in the event of the suit, <fcc. See Chaffee v. Thomas, 7 Cow. 358; Newman v. Bradley, 1 Dall. 240; Miles v. O'Hara, 1 S. & R. 32; Geisse v. Dobson, 3 Whart. 34; Slocum v. Newby, 1 Murph. 423; Reid v. Colcock, 1 Nott & McCord, 592; Chadwick v. Upton, 3 Pick. 442; Jones v. Savage, 6 Wend. 658; Comm'th v. Moore, 5 J. J. Marsh. 655; Brandigree v. Hale, 13 Johns. 125.

* In the present case, the objection to the witness was, not that he was interested, or that he was in any way incompetent, except as attorney and counsel for the plaintiff.

In most cases, counsel cannot testify for their clients without subjecting themselves to just reprehension. But there may be cases in which they can do it, not only without dishonor, but in which it is their duty to do it. Such cases, however, are rare ; and whenever they occur, they necessarily cause great pain to counsel of the right spirit.

Exceptions overruled.

See also Robinson v. Dauchy, 3 Barb. Rep. 20; Little v. McKeon, 1 Sandf. 607.