Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 m nenoRY of JUDGE DOUQLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daugliter A. M. BOARDMAN and El-LEN D. WILLIAMS Cornell University Library KFN6040.M87 Of the competency and privilege of witne 3 1924 022 885 937 The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022885937 OF THE COMPETENCY AND PEIYILEGIE OF Witnesses and Their Testimony UNDER THE NEW YORK CCDES. BY WILLIAM W. MORRILL, COCNSELLOp AT LAW. NEW YORK: S. S. PELOUBET, LAW PUBLISHER. 1886. CoPTniGHT, 1886, 15Y B. S. PELODBET. PREFACE. The idea of preparing this book was suggested by the great uncertainty in the application in practice of some of the statutory provisions here considered, nota- bly Section 829 of the Code of Civil Procedure, as evi- denced by the very large number of cases in which they have been considered in the appellate courts. While it is true that the end of interpretation is not yet, it has still seemed as though the profession might be aided by a small volume, presenting briefly all the light which has so far been thrown upon these Sections by the Courts. Such is the aim of this book ; to that end those principles which seem to be settled have been for- mulated into rules, so far as practicable, and accom- panied with citations of the decisions from which they have been deduced ; on the other hand no attempt has been made to present a rule where the principle has seemed not sufiiciently settled, or unworthy of that dig- nity ; in such- cases the current of decisions has been given, usually without comment. Adjudications prior to the present Codes have been freely drawn upon, both where the principles laid down in them remain unchanged, and also wherever useful [iiij iv I'ltErACE. by way of illustration or otherwise. Owing to the constantly changing condition of the law and practice, it has seemed proper to indicate in the "Table of Cases" the year in which each case was decided. The aim has been to avoid on the one hand questions of evidence not regulated by the Codes, and on the other hand rules of evidence contained in the Codes but not relating to competency or privilege. That the book contains all the law upon the several subjects considered cannot be supposed ; it is hoped that what it does contain is mainly good. ^Y. W. M. Trot, N. Y., October 13, 1880. TABLE OF CONTENTS. CHAPTER I. Page General Provisions as to Competency op Parties and Per- . SONS in Interest 1-4 1. Code of Civil Procedure, § 838 1 3. Code of Criminal Procedure, § 302 1 3. Common law rule and practice 2 4. Legislation prior to present Codes i! 5. Code of Civil Procedure, § 830 4 CHAPTER II. Code op Civil Procedure, § 839. 5-67 Title I. Analysis '. 0-G 'i'lTLE II. History and development 0-11 1. Prior to Code of Procedure . C 3. Original Provision of Old Code 7 3. Amendment of 1851 7 4. Problem stated -. 8 5. Amendment of 1857 8 6. Amendment of 1860 8 7. Amendments of 1863-3-5 8 8. Amendraeut of 1866 9 9. Amendment of 1867 9 vl Table of Contents. Page 10. Section 399 as ameiuled in 18G9 10 11. Important modification in New Code 10 Title III. In what proceedings applied 11-13 1. Development 11 3. Instances of proceedings in \\ hicli applied 12 3. Limited to trials and hearings 13 Title IV. To whose testimomj applied 18-24 A. Party , 13-14 1. Rnle — In aa action Vi 2. Rnle — In probate proceeding 14 B. Person in interest 14-2 1 1. Introductory ; Rnle — Test of interest 14 2. Matter of Burke , l,j 3. Instances; witnesses incompetent 15-18 a. Beneficiaries,, to sustain probate 15 b. Heirs, &c., to oppose probate IG c. Next of kin, to increase estate IG d. Doweress 10 e. Stockholder, for corporation . 10 f. Administrator, to sustain claim of estate 10 g. Tort-feasor, iialjility contingent 17 h. Person indemnifying ofBcer 17 i. Attorney, fees contingent ]7 j. Maker, surety alone defending 17 k. Partner, lo cliarge another 17 1. Mortgagor, subsequent, in foreclosure IS m. Deputy sheriff ; ig 4. Instances ; witnesses competent 18-20 a. Legatee, specific 18 b. Agent, for principal 18 c. Attorney, lien for costs 13 d. Fatlier of minor; wages surrendered 19 e. Doweress 19 f. Maker 19 g. Indorser not charged, for payee 30 5. Rule — Interest in question 30 Table of Contents. vu Page C. Rule— Interest direct and certain 20 7. Rule — Interest at time of examination 21 8. Rule— Interest iu subject of examination 21 C. Predecessor in interest 31-23 1. Development 31 3. Examples, pro and con 23 3. Rule — Transfer by assignment 23 4. Rule — Extends to entire action 213 5. Rule — Transfers mesne 2o 6. Rule— Rebuttal 23 D. Stochholder or officer of banhing corporation 2-i Title V. In whose behalf offered 24-27 A. Of witness 34-37 1. Under Old Code 24 3. Rule — Against interest , 23 3. Rule— For co-party 20 4. Rule— Indirectly in interest 20 B. Of successor in interest 27 Title VI. Against whom offered 38-33 A. Executor, Administrator, Survivor, Committee 28-30 1. Development 33 2. Rule — Surviving partner 29 3. Rule — Joint maker 29 4. Rule — Survivor present 29 5. Rule — Surviving partner includes, &c 39 C. Rule — Concluded by pleading 29 7. Rule — Executor on probate 29 8. Rule — Petitioning creditor 80 B. Successor in interest 30-33 1. Adjudications under Old Code 30 3. Adjudications under New Code SO 3. Rule — Mesne conveyances 31 4. Rule — Contestant of probate 81 5. Rule — Creditor 31 G. Rule — Executor, &c., in own right 33 Title VII. Nature of testimony excluded , 33-5S viii Taelk of Contents. Page A. Personal transactions or eommunicntions 3i-oU 1. Introductory *-* 2. Rule — Agent with deceased person 34 3. Riile^Agent of deceased person. 3^ 4. Rule — Deceased agent 35 5. Rule — Fact of transaction 35 C. Rule — Personal not private ""^ 7. Rule — Survivor present 35 8.- Rule— Silence 86 9. Transactions not prohibited 36-38 a. Birth 36 b. Signature 36 c. Driving to house 36 d. Entry in book, &c 30 c. At execution of will 37 f. Source of knowledge 37 g. Name on paper -. 37 h. Possession of deed, &c 38 10. Transactions prohibited 38-46 a. Marriage 33 b. Showing decedent living 38 0. Payment or non-payment 39 d. Consideration 30 <3. Contract of hiring. 39 f . Contract of purchase 39 g. Implied agreement 39 h. Services 40 i. Genuineness of signature 41 j. Address upon package 41 k. Transfer with intent to defraud 41 1. Instructions to trustee 41 m. Surrender of note 43 u. Delivery of note 43 o. Transaction at delivery of deed 43 p. Contents of paper 43 q. Change of paper 4;; r. Carrying inkstand 43 Table of C'oktents. ix rape s. Signs and souiuls 43 t. Mental condition 4-1 11. Concarninn a personal transaction, &c 4 J B. Transactions, &c., between decedent and a third person 50-54 1. Rule — Witness, when competent 50 2. Rule — Witness, when incompetent. 51 3. Rule — Omitting personal share 54 C. Negativing personal transaction or communication .... 54-58 1. Rule— Negative testimony ^ 54 2. Rule — Contradicting third person 55 Title VIII. When such testimony becomes competent 59-63 A. Executor, &c., examined in his own behalf 59-61 1. Cases— Evidence competent 59 2. Rule — Same transaction 60 3. Rule — Adversary in own behalf 61 B. Testimony of lunatic or decedent given 61-62 1. Rule — In behalf of claimant 61 2. Books of account of decedent 62 3. Rule — May contradict testimony of decedent 62 4. Rule — Otherwise if in another action 62 Title IX. Miscellaneous adjudications 63-65 1. R\ile — Death of party after examination before trial 03 2. Rule — Death of party during trial 63 3. Rule — Whole transaction on cross-examination 63 4. Rule — Evidence of deceased witness on former trial 64 5. Rule— Burden of proving incompetency 64 0. Rule — Cross-examination as to transaction 64 7. Rule — Proof inferentially 64 8. Strictness of construction 84 9. Rule — Disregarding error 65 Title X. Question, how raided 65-07 1. Rule — General objection before proof 06 3. Rule — Renewing objection 06 3. Rule — Striking out evidence 66 4. General objection 00 5. Rule— Form of objection 67 Table of Contents. CHAPTER HI. Testimony op Husband and Wife 68-'; y Title I. Provisions of the Codes 68-60 1. Generally competent ; Code Civ. Pro. § 828 08 3. On question of adultery ; id. § 831 08 3. Confidential communications ; id 69 4. Actions for crim. con. ; id Ci) 5. Criminal actions, Penal Code, § 715 69 Title II. Prior to the present Codes 69-74 1. At common law 70 2. Under Code of Procedure 70 3. Statutes prior to present Codes 71 a. Laws of 1867, chap. 887 72 b. Laws of 1876, chap. 436 72 c. Laws of 1876, chap. 182 73 4. When wife always competent against husband, 73 a. Criminal actions for injury to her person 73 b. Habeas corpus 73 Title IH. Qeneral competency of husband and wife 74-75 1. Code Civ. Pro. § 838 74 3. Under act of 1867 74 3. Penal Code, § 715 75 4. Prior to Penal Code 75 Title IV. Tn actions for adultery , . . 75-76 1. Code Civ. Pro. § 831 75 3. Act of 1867 and cases cited 75 0. Supreme Court Rule 73 76 4. Chamberlain v. People 76 5. Rule — To prove former marriage 76 Title Y. Confidential communications 76-77 1. Code Civ. Pro. § 831 70 2. Penal Code, § 715 77 3. Rule — Applies after man iage dissolved 77 4. Rule — Not to communication at time of marriage 77 Table of Contknts. xi "Page Title VI. In actions for crim. con 77-78 1. Code Civ. Pro. § 831 77 — 2. Prior to Code 78 3. Rule— Divorced wife 78 Title VII. In criminal actions 78 1. Penal Code, § 715 78 2. Adjudications 78 CHAPTER IV. Testimony of Pehsoks Convicted of Crime 79-83 1. Code Civ. Pro. § 833 70 3. Penal Code, § 714 79 3. Purpose of the enactments 80 4. Rule under Revised Statutes 80 5. Rule ns to perjurers 80 0. Conviction for misdemeanor 81 7. Conviction in tliis State 81 8. Conviction and sentence 81 9. Notliiag short of conviction 83 10. Formerly applied to civil actions only 83 11. Adjudications 83 CHAPTER V. Testimony tending to establish Civil or Criminal Liability 83-80 1. Code Civ. Pro. § 837 83 3. Former enactments 83 3. In criminal practice 81 4. In examination before trial , 84 5. Showing civil liability 81 6. Tending to criminate , 84 7. As affecting credibility S.J xii Table of CoTfXENTS. Page 8. Tending to disgrace °" 9. Privilege personal to witness ^^ 10, Explanation of volunteered facts 85 11. How far witness to judge of effect 80 CHAPTKR VI. Testimony against Co-offknders 87-89 1. Introductory 87 2. Illegal sale of chose in action; Penal Code, § 143 87 3. Duelling; Penal Code, § 241 87 4. Gaming; Penal Code, § 343 88 0. Crimes against public peace. Penal Code, § 409 88 6. Bribery; Penal Code, § 79 88 7. Perjury; Penal Code, § 713 89 CHAPTER VII. Testimony of Defendants in Criminal Actions 00-93 1. Code Crim. Pro. § 393 90 3. Statute of 1869 90 3. Criticism by Courts 90 4. Rule — Subject to cross-examination 91 5. People V. Crapo CI 0. Rule— Credibility for jury 93 7. Rule — Presumption from failure to rebut 93 8. Rule — Error in charge 93 CHAPTER VIII. Confessions 94-97 1. Code Crim. Pro. § 395 94 3. Prior to the Code. 94 3. Ethical question 95 4. Purpose of the rule 90 Table of Contents. xiii Page 5. Adjudisations under the Code 97 6. Adjudications prior to the Code ■ .^ 97 CHAPTER IX. Pkofessional Commukications 99-131 Title I. Provisions of Codes 99-100 1. Clergyman ; Code Civ. Pro. § 833 09 3. Physician; Code Civ. Pro. § 834 99 3. Attorney; Code Civ. Pro. § 835 99 4. Application ; Code Civ. Pro. § 836 100 Title II. Pi-iest and penitent 100-101 1. At common law , 100 3. By Revised Statutes 101 8. Late adjudication 101 Title III. Physician and patient 101-109 A. Development 103-104 1. At common law 103 2. By Revised Statutes 103 3. In criminal actions 103 4. Revisers' note 103 5. Early decisions 104 C. Cases classified 104 B. Information 105-100 1. People V. Stout — Rule 105 3. Edington v. JIut. L. Ins. Co 105 3. Annie A. Grattan Case 100 C. Professional capacity 106 103 1. Introductory 100 3. Rule— Employment or payment ICC 3. Rule — Prescription unnecessary 100 4. Rule — Interview not private 100 5. Hewitt J). Prime 106 6. Edington v. ^tna L. Ins. Co 107 D. Necessary, . People 70 N. Y. 38 115 1878 BabcockB. People 15 Hun, 347 103 1878-1880 Bacon v. Frisbie 15 Hun, 26 ; 80 N. Y. 394 111, 115, 116, 118 1883 Badger «. Badger 88 N. Y. 546 50 1880 Balbo ». People 80 N. Y. 484 96 1879 Ballou 1). Ballou 78 N. Y. 335 39 1848 Bank of Utica v. Mersereau . . .3 Barb. Ch. 528. . Ill, 113, 114, 116, 118 1847 Barnes v. Camack 1 Barb. 393 77 1870 Barrett®. Carter 3 Lans. 68 54 1875 Barry®. Eq. Life As. S0C....5N. Y. 587 32 1884 Barton «. Scramling 31 Han, 467 18 1884 Benedict v. Driggs 34 Hun, 94 39 1838 Benjamin ®. Coventry 19 Wend. 353 117 1878 Benjamin®. Dimmick... 4 Redf. 7 62 1875 Bennett®. Austin 5 Hun, 536 25 1873 Birdsall®. Patterson 51 N. Y. 43 71 187S Bockes v. Lansing 13 Hun, 38 22 1834 Bogert ®. Bogert 3 Edw. Ch. 399 112 D [vvii] xviii Table of Cases. Year Page 1885 BougMon i). Bogardus 35 Hun, 198 39, 43 1878 Bradner D. Howard 14 Hun, 420 19 1876 Brague®. Lord 67 N. Y. 495 51 1870 Brands. Brand 39 How. Pr. 193 Ill, 113 1870 Brandons. People 43 N. Y. 265 91 1820 Brandt «. Klein 17 Johns. 335 114 1883 Bristol ». Sears 16 W. Dig. 193 29 1871 Britton v. Lorenz 45 K. Y. 51 Ill 1883 Brown v. Brown 29 Hun, 498. '. '. 25 1881 Burbank s. Reid 11 W. Dig. 576 84 1883 Burlie, Re, 5 Redf. 369 15, 66 1879 Burnett v. Noble 5 Redf. 69 12, 39, 64 1860 Byass ». Sullivan 31 How. Pr. 50 84 1885 Oadmus v. Oakley 3 Dem. 324 15, 31 1876, 1877 Caben«. Cont'lL. Ins. Co.41 Super. 296; 69 N. Y. 300. .105, 116 1885 Campbell «. Hubbai-d 33 W. Dig. 3 12, 40 1883 CaDDGni). N.W.M. L. I. As'n.19 Hun, 470 13 1868 Card ii. Card ' 39 N. Y. 317 66 1872 Careys. Carey 4 Daly, 270 74 1873 Ca,rnesD. Piatt 36 Super. 361 Ill 1885 Carney ». "Wadhams 9 Civ. Pro. R. 204 55 1843 Carpenter ii. Nixon '. .5 Hill, 260 81 1883 Carpenters. Soule 88 N. Y. 251 18, 25 1878 Carroll «. Davis 9 Abb. N. C. 60 37 1874 Gary «. White 59 N. Y. 336 31, 50, 115 1877 Chadwick v. Fonner 69 N. Y. 404 39, 60 1861 Chamberlain s. People 23 N. Y. 85 76, 77 1877 Champliu v. Seeber 56 How. Pr. 46 30 1882 Chapman, Re 27 Hun, 573 133 1877 Children's Aid Soc. ®. Lover- Idge 70 N. Y. 387 14 1880 Chureh v. Howard 79 N. Y. 414 17, 27 1886 Clark, Re, ., 40 Hun, 233 21 1877 Clark v. Bruce 13 Hun, 274 59 1854 Clark !). Pdchards 3 E. D. Smith, 89 Ill 180G Clarke s. Smith 46 Barb. 30 40, 51 1842 Cloycs s. Thaj'cr 3 Hill, 564 84 1875 Cole 1). Cole 50 How. Pr. 59 81 1S7j Cole 3, I^cniic; 3 Ilua, GIO 23 Tabli! of Cases. yix Year Page 18S0 Cominsr. Ilt-tticld SO N. Y. 261 (ii 1873 Comstock v. Ilier 73 N. Y. 309 ;;.Ti 1884 Conn, M. L. Ins. Co.«.U.T.Co.ll3 U. S. 350 100 1873 Connors ». People 50 N. Y. 240 91, 93 1884 Converse v. Cook 31 Hun, 417 19, 23, 36 1876 Conway ». Moulton 6 Hun, 650 23, 29 1877 Cornells. Cornell 13 Hun, 312 3J 1882, 1885 Corning v. Walker 38 Hun, 435 ; 100 N. Y. 547 ; 3 East. R. 834 61, 03 1841 Coveneyi). Tannahill 1 Hill, 33 114 1880 Cox ». People 80 N. Y. 500 !)■> 1844 Crosby v. Berger 11 Paige, 377 Ill 1877 Crowley !). Davis 4 W. Dig. 466 ^a 1885 Curtissc. Moore 52 Super. 533 31 1863 Delafleld v. Parish 25 >T. Y. 9 ICl 1875 Denham ®. Jayne 3 Hun, 614 41 1877 Dennis v. Crittenden 42 N. Y. 543 7« 1869 Dewey v. Goodenougli 56 Barb. 54 65 1869 Dicterich, "Will of 1 Tuck. 139 11, 29 1877 Dilleber v. Home L. I. Co. . . .69 N. Y. 356 105, IIJ 1863,1864 Dubois c. Baker 40 Barb. 556 ; 30 N. Y. 355 4:i 1863 Duffy B. People 36 N. Y. 588 93 1866 Dyer ». Dyer 48 Barb. 190 55 1873 Eaton o. Alger 47 K Y. 345 04 1878, 1879 Edington v. ^tna L. Ins. Co 13 Hun, 543; 77 N. Y. 564... 107, 117 1875, 1876 Edington v. Mutual L. Ins. Co 5 Hun, 1 ; 67 N. Y. 185 105. 109 1879 Ely?'. Clute 19 Hun, 35 20, 20 1849 Erwin v. Smaller 3 Sandf. R. 340 70 1880 Evans v. Ellis 23 Hun, 460 G:i 1884 Farley ». Norton 67 How. Pr. 438 29 1874 Farnsworth «. Ebbs 2 Hun, 438 21, 51 1883 Farrell v. Krum 17 W. Dig. 471 03 1884 Ferguson v. Mass. Mut. L. I.Co.32 Hiin, 306 105 1877 Finn ». Finn 12 Hun, 339 76 1879 Fisher v. Verplanck 17 Hun, 150 40, 6i ■XX Table of Cases. Tear Page 1879 Footer. Bceclier 78 N. Y. 15.j 23, 65 1872 Fostei-'s Case 13 Ab. Pr. N. 8. 372, note 45 1885 Foster i). Wilkinson 37 Hun, 3-13 113 1871 Fox J). Clark Gl Barb. 21G, note 3G 1873 Fralick v. People 05 Barb. 48 91 1883 Frazer, Re 93 N. Y. 239 13 1878 Freeman v. Lawrence 43 Super. 333 40 1303 Gardner v. Bartholomew 40 Barb. 335 81 1385 Garvey ». Owens 47 Hun, 498 41 1371 Genet d. Lawyer 61 Barb. 311 23 1373 Gifford v. Sackett 15 Hun, 79 25 1384 Gillies?). Kreuder 33 Hun, 814..., 21 1374 Goodwin ?). Hirscli 37 Super. 503 60 1331 Gorham Ji. Price 25 Hun, 11 55 1373 Graham «, People 03 Barb. 408 Ill 13G5 Great W. T. Co. v. Looniis. . ..33 N. Y. 137 85 1881 Grattan, A. A. ■», Met, L. I. Co.3i Hun, 43 105, 100 1883, 1883 S. C, second appeal 33 Hun, 430 ; 93 N. Y. 374 105, 106, 107, 118 1880 Grattan, P. d. Met. L. I. Co. ..83 K Y. 281 105, 106, 108 1878 Grattan, P. v. Nat. L. L Co... 15 Hun. 74 103 1874 Green?). Ediek 5S K Y. 013 39 1872 Grey J). Grey 47 N. Y. 533 64 1883 Hadsallj). Scott 23 Hun, 617 13, 37, 43 1880 Halli). Richardson 23 Hun, 444 33 1831 Ham «. Van Orden 84 N. Y. 357 08 1879 Hammond t'. Schultzc 45 Super. Oil 39,60 1873 Hatch v. Peugnet 64 Barb. 189 13, 35 1877 Haughey i>. Wright 12 Hun, 179 54 1877 Hebbard v. Haughian 70 N". Y. 54 113 1854 Hendrickson !). People 10 N. Y. 13 94 1880 Hennessey v. Hennessey 58 How. Pr. 8 J ' 75 1317 Henry v. Salina Bank 1 N. Y. 83 81 1335 Hewitt, Re 31 W. Dig. 23 J 16 1339 Hewitt v. Prime 31 Wend. 79. J 104, 106, 108 13SS Hicks )). Bradner 2 Ab. Ct. Ap. Dec. 3;;: 78 ir:-5 TTicks ■)'. Wirih 4 E. D. Smith, 73 33 Table of Cases. xxi Tear Page 1873 Hier«. Grant 47 N. Y. 373 i", 1875 Hildebrant «. CrawforJ 05 N. Y. 107 35, 50 1879 Hill ». Alvord 19 Hun, 77 17, 20, 20 1881 Hill ». Hotchkin 23 Hun, 414 27 1880 Hoari). Hoar 33 Hun, 83 GJ 1875 Hobart v. Hobart 03 N. Y. 80 15, 20, 05, 60 1884 Holcomb v. Holcomb 95 N. Y. 316. . . .10, 35, 41, 44, 49, 51 1815 Holridge v. Gillespie. 3 J. Ch. 30 80 1877 Hood V. Teeter 10 Hun, 548 51 1886 Hope v. T. & L. R. R. Co. . . .40 Hun, 438 118 1851 Houghtaling v. Kelderhouse. .1 Park. Or. 241 80 1877 Howell v. Taylor 11 Hun, 314. . : :35, 05 1875, 1877 Howell v. Van Siclen. . ..6 Hun, 115 ; 70 N. Y. 595 39 1853 Ilowland i\ Willetts 9 N. Y. 170 17 1885 Hoyt, Estate of 7 Civ. Pro. 374 114 1885 Hoyt v. Jackson 3 Dem. 388 114 1873 Hunn v. Hunn 1 T. & C. 499 104 1883 Hunter v. Herrick 33 Hun, 373 18 1817 Jackson v. Burtis 34 Johns. 391 113 1830 Jackson B. Denison 4 Wend. 558 113 1839 Jackson v. French 3 Wend. 337 113 1820 Jackson v. McVey 18 Johns. 330 Ill 1800 Jackson ®. Vredenburgh 1 Johns. 159 ... 7 1876 Jacques v. Elmore 7 Hun, 675 39, 04 1863 Jellerds v. People 5 Park. Cr. 533 95 1831 Johnson ». Daverne 19 .Johns. 134 113 1834 Johnson v. Johnson 4 Paige, 459 104 1835 S. C, on appeal 14 Wend. 6-37 109 1875 Johnson B. Spies 5 Hun, 403 64 1884 Jones ». Le Baron 3 Dem. 37 30 1879 Kalet). Elliott 18 Hun, 198.... 29, 35 1880 Keller v. West, &c., Mfg. Co..39 Hun, 348 10 1874 Kelley v. People 55 N. Y. 505 07 1849 Kellogg ». Kellogg 6 Barb. 116 114 1884 Kelly ». Burroughs 33 Hun, 349 59 1803 Kerrs. Maguire 28 N. Y. 446 39 1829 Kip, Re 1 Paige, 601 84 1875 Knight ». Cunniugton 6 Hun, 100 40 XX ii Table cf Cases. Ye.'ir Page 1M83 Kohler ji. Adler 91 N. Y. 657 48 1878 Krauslianr v. Meyer 72 N. Y. 003 51 1884 Lane v. Lane 95 N. Y. 494 13, 15, 44 1883 Lathrop ». Hopkins 29 Ilun, 608 31 1886 Lawtoni!. Sayles 40 Hun, 253 17 1884 Le Baron, Re 67 How. Pr. 346.... 12, 33, 65 1876 Le Glare v. Stewart 8 Hun, 127 35 1885 Lerche v. Brasher 37 Hun, 385 39, 40 1885 Lewis®. Merritt 98 N. Y. 206 55 1807 Lobdell v. Lobdell 30 N. Y. 327 50, 65 1848 Lohmanj). People IN. Y. 379 85 1871 Lyon V.Snyder 61 Barb. 173 23 1883 Macdonald 1). Woodbury 30 Hiin, 35 03 1853 Malloryi). Benjamin..'. 9 How. Pr. 419 114 1862 MandeviUe v. Guernsey 33 Barb. 225 112 1845 March «. Ludlum 3 Sand. Ch. 35 113 1878 Jlarkell v. Benson 55 How. Pr. 360 47, 49, 59 1870 Marsh i). Brown 18 Hun, 319 13, 63 1877 Marsh®. Gilbert 3 Redf. 405 50 1863 Marsh®. Howe ' 36 Barb. 649 112 1860 Marsh v. Potter 30 Barb. 506 3, 70, 71 1877 Matthews ®. Smith 5 "VV. Dig. 167 37 1871 Mattoon a Young 45 N. Y. 696 30, 65 1883 Maverick «. Marvel 90 N. Y. 656 35 1875 McCotter ®. Lawrence 4 Hun, 107 64 1885 McKenna v. Bolger 37 Hun, 526 55 1809 McTavish v. Denning Anth. 155 115 1879 Merritt B. Campbell 79 N. Y. 635 63 1S76 Miller®. Adkins 9 Hun, 9 61 1879 Miller ®. Montgomery 78 N. Y. 332 15, 66 1883 Milligan ®. Robinson 16 W. Dig. 90 51 1861 Mitchell's Case 12 Ab. Pr. 249 114,115 1885 Moore ®. Oviatt ;!5 ITun, 216 15, 19, 21, 36 1880 Moyer ®. Moj'er 21 Hun, 67 43 1803 MuHord®. Muller 3 Ab. Dec. 330 115 1875 Mulqueen ®. Duffy Hun, 299 66 1886 Murray ®. Fox 39 Ilun, 108 16, 30 1884 Myers v. Dorman 34 Hun, 115 113 Table of Cases. xxiii Tear rage 1877 Nat. Tr. Co. v. Roberts 43 Super. 100 bl 1878 ISfearpass u Oilman 16 Hun, 121 :...16, 28, 31 1862 Newcomb v. Griswold. . . .. . .24 N". Y. 29? 81 18T3 Newman «. People 63 Barb. 030 93 1883 N. Y. C.&ri. R. R. Co.,Re..90N. Y. 342 32 1880 N. Y.Nat. Ex. Bank ■B.Jones. 9 Daly, 248 19 1878 NichollsB. Van Valkenburgh.lSIIun, 230 - 50 1807 O'Briens. People 48 Barb 280 97 1885 Oliver ■». Freligli 33 Huu, 033 36 1871 Paige, Re 63 Barb. 676 38 1875, 1877 Parhan u. Moraii 4 IIuii, 717 ; 71 N. Y. 593 38 1876 Patterson v. Copelaud 52 How. Pr. 430 50 1881 Pearsalls. Elmer 5 Redf. 181 Ill, 110, 118, 120 1883 Pease a. Barnett 30 Han, 525 43 1881 People v. Bartholf 24 Hun, 272 77 1859 People v. Blakeley 4 Park. Cr, 176 114 1878 People v. Brown 72 N. Y. 571 83, 83 1884 People «. Burns 33 Hun, 396 81 1850 People ». Carpenter 9 Barb. 580 73 1855 People v. Carroll 3 Park. 73 85 1878 People ». Casey 73N.Y. 393 91 1884 People B. Chacon 3 N. Y. Crim. R. 413 97 1884 People v. Courtney 94 N. Y. 490 91 1879 People v. Crandon 17 Hun, 490 75 1879 People's. Crape 73 N. Y. 288 83, 93 1857 People v. Fitzpatrick 5 Park. 26 73 1835 People®. Gates 13 Wend. 311 101 1876 People v. Houghton 24 Hun, 501 73, 75 1883 People v. Hovey 29 Hun, 883 73, 78, 81 1885 People v. Kelly 35 Hun, 295 82 1885 People «. McCallam 3 N. Y. Crim. R. 189 97 1883 People v. McGloin 91 N. Y. 241 ; 1 N. Y. Crim. R. 105 83, 97 1839 People B. Mercein 8 Paige, 46 74 1880 People v. Moett 33 Huu, 60 93 1885 Peoples. Mondon 38 Hun, 188 95, 97 xxiv Table of Cases. Year rage 1880 People v. Murphy 101 N. Y. 128 ; 3 East. R. ICo ; N. Y. Ciim. R. 338. ..103, IOC, 103 1888 People u Noelko 94 N. Y. 137 Si 1867 People v. Novthrup 50 Bavb. 147 'i^3 1885 People t). Petmecky 9D N. Y. 415; 2 N. Y. Ciim- H- 450 "8 People II. Phillips 1 S. "W. Law Journal, 90 100 1833 People s. Schewe 29 Huu, 122 81 1859 People®. Sheriff 29 Barb. 622. 114 1858 People-!). Stout 3 Park. Cr. 670 102, 103, 105, 103 1867 People t). Weutz 37 N. Y. 303 95, 97 1881 People, «j; reZ. Phelps b. Oyer and Terminer (if N. Y 83 N. Y. 436 85 1881 Perry D. People 8(5 N, Y. 353 82 1879 Pettit V. Geesler 58 How. Pr. 195 29, 39, 60 1877 Phosni.x J). Dupuy 3 Abb. N. C. 146 84 1879, 188C Pierson v. People 18 Hun, 239 ; 79 N. Y. 424 118 1849 Pillow V. Bubhnell 4 How. Pr. 9 ; 5 Barb. 156 70 1882 Pinney v. Orth 88 N. Y. 447 8, 55 1852 Pope V. Allen 90 N. Y. 298 31 1853 Porter v. Potter 18 N. Y. 52 22 1881 Potts ». Mayer 86 N. Y. 303 63 1884 Poucber v. Scott 33 Hun, 233 13, 16 1880 Pratt v. Elkius 80 N. Y. 198 35 1884 Prices. Price 33 Hun, 09 47, 51 1863 Prouty v. Eaton 41 Barb. 409 31, 113 1880 Pursell v. Pry 19 Hun, 595 25 1841 EatclifE «. Wales Hill, 63 77, 78 1877 Reeve s. Crosby 3 Redf. 74 14. 37 1861 Regina i). Boyes 1 Best & Smith, 329 8'! 1885 Reuihani). Dcnnin 38 Hun, 270 105, 121 1881 Rice v. Motley 24 Hun, 143 63 1878 Richardson v. Warner 13 Hun, 13 23, 23 1885 Riggs V. Am. H. M. Soc 35 Hun, 050 .16, 6u 1881 Robbinsj). Pultzs.. 48 Super. 510 02 1851 Roehesler City Bank v. Suy- dam 5 How. Pr. 254 113 1875 RoejJ.Roo 40 Super. 1 75 Table of Cases. xxt Tear Page 1873 Rogers b. Lyon 64 Barb. 373 Ill 1881 Root J). "Wright 84 N. Y. 73 Ill, 113 1886 Rosenberg t). Rosenberg 40 Hun, 91 113 1877 Ross V. Harden 43 Super. 437 54 1875 Koss v'. Ross 6 Hun, 183 40 1875 RulofE ». People 4 N. Y. 313 90, 93 1880 Ryan v. People 79 N. Y. 493 83 1881 Sacia «. Decker 1 Civ. Pro. R. 47 83 1884 Sanford «. ElliUiovp 95 N. Y. 48 '. . .16, 66, 67 1873 Sanford v. Sanford 61 Barb. 393 50 1885 Saratoga Co. Bk. v. Leacb. .. .37 Hun, 336 36, 41 1883 Sclierrer v. Kaufman 1 Dem. 39 15, 31 1880 Schoonmaker u. Wolford 30 Hun, 166 15, 39, 65, 68 1879 Severn v. Nat. St. Bk 18 Hun, 338 65 1860 Shay ». People 83 N. Y. 317 81 1884 Shepard v. Patterson 3 Dem. 183 59 1879 Sheridan ?). Houghton 16 Hun, 638 131 1883 Sherman i). Scott 37 Hun, 331 17, 18, 113 1871 Shirley b. Bennett 6 Lans. 513 19, 33 1883 Shufelt v. Watrous 16 W. Dig. 198 43, 113 1857 Sibley J). Waffle 16 N. Y. 180 113 1886 Simmons®. Havens 101 N. Y. 437 38 1863 Simmons v. Sisson 36 N. Y. 364 50 1871 Sloan v. N. Y. C. R. R. Co. . .45 N. Y. 135 104, 108 1817 Smith's Case 3 C. H. Rec. 77 101 1875 Smith ®. Christopher 3 Hun, 585 59 1883 Smith ». Cross 90 N. Y. 549 33, 31 1883 Smith -o. Meaghan 28 Hun, 433 30, 26 1886 Smith «. Meaghan 40 Hun, 401 46 1873 Smith v. Smith 1 T. & C. 63 115 1883 Smith*. Ulman 20 Hun, 386 51 1884 Smith, Will of 95 N. Y. 516 15, 31, 49 1880, 1883 Snyder v. Sherman 33 Hun, 139 ; 88 N. Y. 65S 13, 15 1877 Somerville v. Crook 9Hnn, 664 40, 67 1873 Southwick u. Southwick 49 N. Y. 510 70, 74 1883 Sprague v. Swift 28 Hun, 49 30, 29 1869 Stanley v. Whitney 47 Barb. 586 39, 47, 54 1879 Staunton v. Parker 19 Hun 55 118, 120 1885 Stebbins «. Hart 4 Dem. 501 18 ISSa Steele 4). Ward 30 Ilun, CSj 16, 64 xxvi Table of Cases. Tear P»g6 1884 Stephens «). Col-nell 32 Ilun, 414 33 1879 Stevens D. Breanan 79 N. Y. 254 07 1841 Stewart B. Turner 3 Edw. Cli. 458 84 1874 Stover ». People 59 N. Y. 315 93 1869 Strongs. Dean 55 Barb. 337 13, 47 1885 Stuart ». Patterson 37 Hun, 113 41 1830 Supervisors, &c. «. Birdsall. .4 "Wend. 453 7 1883 Sweet ®. Low 28 Hun, 432 49, 59 1854 Tappan, Ex parte 9 How. Pr. 394 84 1867 Taylor «. Jennings 7 Rob. 581 84, .S-"i 1884 Taylor ij. Moldrum 19 W. Dig. 25 31 1876 Tlieall v. Sleitz 6 Daly, 482 30 1877 Tilton v. Ormsby 10 Hun, 7 13 1865 Timon «. Claffy 45 Barb. 438 05 1879 Titus «. O'Connor 18 Hun, 373 33 1877 Tooley «. Bacon 70 N. Y. 34 41, 66 1882 Trimmer d. Trimmer 90 N. Y. 675 60 1853 Van Alstyne J). Van Alstyne. .28 N. Y. 375 09 1880 Van Gelder ». Van Gelder. . .81 N. Y. 625 43 1869 Van Tuyl v. Van Tuyl 57 Barb. 235 30, 65, 77 1886 Viall ». Leavens 39 Hun, 291 49 1885 Voorliis, Re 1 IIow. Pr. N. S. 261 15 1881 "Wadsworth v. Heermans 85 K Y. 639 37 1883 Waldroii, Estate of 16 W. Dig. 28 36 1843 Ward?'. People Hill, 144 85 1881 Ward ». Plato 33 Hun, 403 GO 1878 Waver v. Waver , . .15 Hun, 377 43 1885 Weed i>. Hornby 35 Hun, 580 S9 1885 Wcstover !). ^tna L. L Co...99N. Y. 56 105, 116, 118 1875 Wlieelock v. Cuyler 4 Hun, 414 33 1883 Whelpley «. Loder 1 Dem. 368 14, 31, 118, 131 1883 White !). White 16 W. Dig. 45 64 1864 Whiting v. Barney 30 N. Y. 330 110, 111, 113 1873 Wilke v. People 53 N. Y. 535 75 1881 Wilkins v. Baker 24 Hun, 33 41 1884 Williams «. Davis 20 W. Dig. 573 39 i;;S5 V'ilsoa, Kc 23 W. Dig. 390 4 Table of Cases. xxvii Tear Pago 1792 Wilson ». Rastall 4 Torm R, 756 loa 1883 Wilson v. Reynokls 31 Ilun, 46 48, 51 1881 Wltthaus v. ScUaok 24 Hun, 338 32 1884 Wood V. Holmes 19 W. Dig. 131 49, 63 1875 Woodford «. People 63 N. Y. 117 98 1860 Woodruff «. Ilursou 33 Barb. 557 113 1874 Wooster e. Bootli 3 Ilun, 436 17 1877 WottrioU v. Freemnn 71 N. Y. 601 78 1883 Yamato Trading Co. i). Brown. 27 Ilun, 248 84 1883 Youngs v. Youngs 5 Redf. 505 85 COMPETENCY AND PEIYILE&E OF "WITNESSES. CnAPTEE I. GENERAL PROVISIONS AS TO COMPETENCY OP PARTIES AND PERSONS IN INTEREST. 1. Code of Civil Procedure, § 828. 2. Code of Criminiil Procedure, § 393. 3. Common l;i\v rule and practice. 4. Legislation prior to tlie present Codes. 5. Code of Civil Procedure, § 830. 1. Code of Civil Procedure, § 828. " Except as otiierwise specially prescribed in this title, a person shall not be excluded or excused from being a witness, by reason of his or her inter- est in the event of an action or special proceeding; or because he or she is a party thereto; or the husband or wife or a party thereto, or of a person in whose behalf an action or special pro- ceeding is brought, prosecuted, opposed, or defended." 2. Code of Criminal Procedure, § 393. " The rules of evi- dence in civil cases are applicable also to criminal cases, except as otherwise provided in this Code." 2 C(imp'etency and Pjiivilkge. 3. Common law rule and practice. Until quite recently, the riiio of evidence prevailed, wherever the common law fur- nished the basis of procedure, which forbade a party or person in interest to testify in his OM'n behalf in any judicial investi- gation. It must have been long manifest that a rule which thus excluded the testimony of tlie persons who, in a great major- ity of cases, are in the best if not the only position to be acquainted with the facts, contained serious elements of injus- tice; and the long delay in changing the rule, while undoubt- edly due in part to the conservatism with which innovations in established procedure are wont to be met, was no doubt jjriniarily caused by a settled conviction that no evil could be so gi'cat as the temptation to perjury incident to allowing each pai'ty to the litigation to tell his ow-n story. " Upon the competency of witnesses the common law pro- ceeded in distrust of human nature; it believed a witness, if interested, to be incapable of verity (1 Phil. Ev. 40); and there consequently grew up under it a system of restrictions which rarely, if ever, allowed the facts in a given ease to Come or.t fully, and was often the occasion of great hardship and injus- tice. The objections to such a system were too manifest tu escape attention. Many thought tlie attainment of truth would be best promoted by opening evei-y source of informa- tion in a given case, and tliat all persons cognizant of any facts bearing- upon the case, and especially those ordinarily ju(.ist conversant with them — the parties themselves — should be permitted to speak. Tliey expressed confidence in man, and a belief in tiie existence of human integrity. They l)elieved in the cnpiicity of human nature, although interested, to speak the ti'nth, and in the ability of triers of questions of f;ict to detect falsehood. From such a basis of thouglit there have sprung up, within a few years past, in England, and in some General Pkovisions. 3 of tlie States of this country, radical clianges in the admissi- bility and competency of persons as witnesses. A new system has developed itself, whose foundations are laid in common sense and an enlightened policy ; and its superiority over the old is no longer questioned, except by the few who have no confidence in the present, no hope in the future, and who deem our only safety is in keeping fast anchored to the past." Marsli V. Potter, 30 Barb. 500. So wrote Judge James in 1860 — three years after the enact- ment of the earliest statutory provision in this State making a party competent to testify in his own behalf in a civil action. 4. Legislation prior to the present Codes, a. For civil practice. It had been enacted in 1847 that a party or person in interest might be examined as a witness by his opponent ; and the same provision was incorporated in the Code of Pro- cedure, enacted the following year. Laws of 1847, chap. 463. Code of 1848, §§ 344, 350 (afterward 390, 396). The old code, as originally enacted, also provided that, "Ko person offered as a witness sliall be excluded by reason of his interest in the event of the action " (§ 351, afterward § 398) ; but the succeeding section especially excepted parties and persons for whose immediate benefit the action was prosecuted or defended ; and it was not until 1857 that the latter sectiou declared that, " A party to an action or proceeding may be examined in his own behalf the same as any other witness." b. For criminal practice. And not even yet was the rule which Judge James extols as so salutary extended to criminal trials. Indeed, the amendment of 1866 to section 399 expressly 4: Competency and Privilege. states tliat, " Nothing herein contained shall be held or con- strued to give the right to a party in a criminal action to tes- tify upon the trial thereof." In 1869, however (chap. 678), a statute was passed similar to section 393 of the Code of Criminal Procedure, making the defendant in a criminal proceeding of whatever nature a com- petent witness in his own behalf. 5. Code Civ. Pro. § 830. For convenience, and because, while it properly belongs after the discussion of section 829, it seems to fall naturally into no other chapter, section 830 of tiie Code is inserted here. It is as follows : " Where a party has died since the trial of an action, or the hearing upon the merits of a special proceeding, the testimony of the decedent, or of any person who is rendered incompe- tent by the provisions of the last section (§ 829), taken or read in evidence at the former trial or hearing, may be given or read in evidence at a new trial or hearing by either party, sub- ject to any other legal objection to the competency of the witness, or to any legal objection to his testimony or any question put to him. " CHAPTEK II. SECTION 829, CODE OP CIVIL PROCEDURE. TITLE I. Analytical Statement. 1. Upon a. The trial of an action, or 5. The hearing upon the merits of a special proceeding, 2. A a. Party or 5. Person interested in the event, or a c. Person from, through or under whom such a party or interested person derives his interest or title, by assignment or otherwise, 3. Shall not be examined as a witness, a. In his own behalf or interest, or T). In behalf of the party succeeding to his title or interest, 4. Against a. The executor, administrator or survivor of a deceased person, or 5. The committee of a lunatic, or c. A person deriving his title or interest from through or under a deceased person or lunatic, by assign- ment or otherwise ; Competency and Pejvilegb. 5. Concerning a. A personal transaction h. Or communication Between the witness and the deceased person or lunatic ; 6. Except where a. The executor, administrator, survivor, committee, or person so deriving title or interest is examined in his own behalf, or 5. The testimony of the lunatic or deceased person is given in evidence. Concerning the same transaction or communication. 7. A person shall not be deemed interested for the pui'- poses of this section by reason of being a stock- holder or officer of any banking corporation which is a party to the action or proceeding, or interested in the event thereof. TITLE II. HlSTOEY AND DEVELOPMENT. 1. Prior to the Code of Procedure. 3. Original provision of Code of Procedure. 3. Amendment of 1851. 4. Problem stated. 5. Amendment of 1857. 6. Amendment of 1860. 7. Amendments of 1863, 18G3 and 1865. 8. Amendment of 1866. 9. Amendment of 1867. 10. As amended in 1869. 11. Important modification in New Code. 1. Prior to the Old Code. Prior to the enactment, in ISiS, of the Code of Procothiro, ii pnrty to the record was not a Code Civ. Fro., § 829. 7 competent witness, cither in Lis own belialf or otherwise. And this was held to be not on the ground of interest, but fi'oin consldorations of public policy. Supervisors of Clicnango v. Birdsall, 4 "Wend. 453. And a person interested in the event was incompetent to testify in his own behalf or otherwise, though he might testify against liis interest. Jackson V. Vredenburgli, 1 Johns. 159. 2. Original provision of Old Code. Section 351 of the Code of Procedure, as originally enacted, (afterward changed to § 398) was a sweeping provision that : " No person ojlered as a witness shall be excluded by reason of bis interest in the event of the action." And tbe purpose of the succeeding section, commonly known as section 399, was simply to exclude from the operation of section 398 " a party to the action," " any person for whose immediate benefit it is prosecuted or defended," and " any assignor of a thing in action assigned for the purpose of making him a witness." 3. Amendment of 1851. In 1851 the latter class was omit- ted, and in its place was inserted the provision tbat : " When an assignor of a thing in action or contract is examined as a witness, on behalf of any person deriving title through or from liim, the adverse party may offer himself as a witness to the same matter in his own behalf and shall be so received. But such assignor shall not be admitted to be examined in behalf of any person deriving title through or from him, against an assignee or an executor or administrator, unless the other party to such contract or thing in action, whom the defendant or plaintiff represents, is living, and his testimony can be procured for such examination, nor unless at least ten 8 CoMPKTK>,cr A2U3 I'kivilege. days' notice of such intended examination of- the assignor, specifjiug the points npon wliicli ' he is intended to be examined, shall be given in writing to the adverse party." 4. Problem stated. Thus was attempted to be met, at the outset, and even before a party had become competent to testify, tlie problem which has been well stated by the Court of Appeals in a recent case ; namely, how " to prevent a surviving party from proving, by his own testimony, a pei'- sonal transaction or communication between himself and a deceased person, which but for the prohibition he might do without fear or possibility of contradiction." Pinney e. Orth, 88 N. Y., at page 451. 5. Amendment of 1857. In 1857 a new era of trial-prac- tice was inaugurated, by the amendment of section 399, to the effect that : " A party to an action or proceeding may be exam- ined as a witness in his own behalf, the same as any other wit- ness." But no important change was made in that part of the section which relates to the subject before us, until 1860. Theretofore, the exclusion had been based on the character or capacity of the opposing parties : the suhject-matter of the testimony became now an important element. 6. Amendment of 1860. lu ISGO it was enacted that : " A party shall not be examined against parties who are represen- tatives of a deceased person, in respect to any transactions had personally between the deceased person and the wit- ness;" and the rule was made to cover both actions and special proceedings ; proceedings in surrogates' courts and summary proceedings being specified. 7. Amendments of 1862, 1863 and 1865. In 1862 both a party and " the assignor of a thing in action " were excluded ; th > Code Civ. Peo., § 829. -9 representatives were specified as "executors, administrators, lieirs at-law, next of Ivin or assignees ;" and the following pro- vision was added : " But where such executors, administrators, heirs at-law, next of kin or assignees shall be examined on their own behalf, in regard to any conversation or transaction had between the deceased jjerson and said assignor or said party respectively, then the said assignor or the said party may be examined in regard to such conversation or transaction, but not in regard to any new matter." In 18G3 a provision was added that : " If a party dies after his testimony is taken and before it is used on the trial, the other party shall be compe- tent as to the same matter." In 1865 the clause specifying certain special proceedings was dropped, and "devisees" were added to the list of representatives. 8. Amendment of 1866. In 18GG the section was largely elaborated ; not only a " party " and " the assignor of a thing in action " were excluded, but also "any person who has a legal or equitable interest, which may be affected by the event of the action." The examination was forbidden, not only in behalf of the l^arty, but also " in behalf of any other party. " To the representative class was added " the survivor of a person or jjarty jointly interested." And considerable additional matter was inserted, the most noticeable point in which is that insane persons are for the first time mentioned. 9. Amendment of 1867. So far, the amendments all tended toward amplification. And in the anxiety of the legislature to provide for all possible emergencies, the language became so intricate as to be hardly intelligible. Thencefor- ward the section was simplified by the amendments. In 1867 a large amount of verbiage was stricken out, and the exclusion was extended to " any person who, previous to 10 Competency and Peivilege. such examination, lias had such an interest [i. e., a legal or equitable interest which miglit be affected, &c.J, however the same may have been transferred to or come to the party to the action or proceeding." And the assignee or committee of a lunatic was distinctly enumerated in the representative class. 10. Section 399 as amended in 1869. The section as amended in 1869, which remained unchanged until the new Code came into effect in 1S78, was comparatively short and simple, and is given in full : 'Ho party to any action or proceeding, Nor an^' person interested in the event thereof, Nor any person- from, through or under whom any such party or interested person derives any interest or title by assignment or otlierwise. Shall be examined as a witness in regard to any personal transaction or communication between such witness and a person at the time of such examination deceased, insane or lunatic, Against the executor, administrator, heir at-law, next of kin, assignee, legatee, devisee or survivor of such deceased person, or the assignee or committee of such insane person or lunatic. But this prohibition shall not extend to any transaction or communication as to which unj such executor, admin- istrator, lioir-at;law, next of kin, assignee, legatee, devisee, survivor or committee shall be examined on his own behalf, or as to which the testimony of sucli deceased person or lunatic shall be given in evidence. 11. Important modification in Hew Code. It will be observed that subsequent to 1866 the testimony of a party or interested person, within the scope of the section, was incompetent, no matter in whose behalf it was offered. And this remained Code Civ. Pko., § 829. 11 unchanged so long as tlie Old Code was in force. The New Code limited the incompetency to evidence ofFered in behalf of the party or person testifying, or of a person claiming from, through, or under him. With this exception, the section has remained substantially unchanged since 1869. TITLE III. In what Proceedings Applied. " Upon the trial of an action, oe the heaeing upon THE MEKITS of A SPECIAL PEOCEEDING." 1. Development. 3. Proceedings in which applied. 3. Limited to trials and hearings. 1. Development. The Code of Procedure, as originally enacted, related only to the jurisdiction of courts and the trial of actions ; Code of 1851, § 8. and section 399 (originally § 851) was accordingly confined in its application to trials of actions. Re Dietcrich's Will, 1 Tuck. 1S9. In 1857 it was extended so as to embrace also " a proceed- ing." In 1860 it became " actions and special proceedings ;" and " proceedings in Surrogates' Courts " and "' summary proceedings" were specified. Since 1865 no particular special proceedings have been designated, but the a])plication of the rule has been common to evei'y form of action and special proceeding. 12 Competency and Pkitilege. 2. Instances of proceedings in which applied. Naturally the rule is often invoked in the various proceedings in Surrogates' Courts, such as applications for probate, Snyder v. Sherman, 88 N. Y. 056. proceedings for judicial settlement of accounts of executors, &c., Burnett v. Noble, 5 Redf. 69. proceedings for discovery of assets, Tilton B. Ormsby, 10 Hun, 7. proceedings on application to sell real estate of decedents for payment of debts and funeral expenses, Re Le Baron, 67 How. Pr. 346. proceedings on application for a share in a deceased father's estate, Marsh v. Brown, 18 Hun, 319. and generally in actions and proceedings in any court in relation to decedents' estates ; as upon the reference of dis- puted claims, Strong V. Dean, 55 Barb. 387. Campbell v. Hubbard, 33 W. Dig. 3. or the trial of special issues concerning the due execution of a •will, Hatch ®. Peugnet, 64 Barb. 189. 3. Limited to trials and hearings. It will be observed that the rule is limited in its application, to "trials" and "hear- ings." It follows that the simple verification of a claim against a decedent's estate by the claimant is not rendered incompetent. Re Frazer, 93 N. Y. 339. Re Le Baron, 67 How. Pr. 346. Nor are proofs of loss made to an insurance company, as provided by its regulations. Cannon v. N. W. M. L. I. Ins. Co., 39 Hun, 470. Code Civ. Teo., § 82 D. 13 TITLE IV. To WHOSE Testimony applied. A. Party. 1. Rule — In an action. S. Rule — In probate proceeding. B. Person in Interest. 1. Introductory. Test of interest. 2. Matter of Burke. 3. Instances of witnesses lield incompetent. 4. Instances of witnesses lield competent. 5. Rule — Interest in question. 6. Rule — Interest direct and certain. 7. Rule — Interest at time of examination. 8. Rule— Interest in subject of examiuation. C. Peedecessjb in Interest. 1. Devclo|)ment. 3. Examples pro and con. 3. Rule — Transfer by assignment. 4. Rule — Extends to entire action. 5. Rule — Triinsfers mesne. 6. Rule— Rebuttal. D. Stockholdee of Banking Corporation. A. "A Party." 1. Rule. In an action it seems to lie the same lohetlicr the party a]p])ea7^s in an individual or a representative cajMcity. Poucher v. Scott, 33 Hun, 233. Lane v. Lane, 95 N. Y. 494. 1-i Competency and Peivilege. lu Pouclicr V. Scott, an action for money alleged to have been loaned by the plaintifE's intestate to the defendant's testa- tor, it Avas held that the evidence of the plaintifE (administra- tor) vras incompetent under the rule, the court saying : " We are of the opinion that the administrator was a party to the action. We cannot sever him from the office of admin- istrator and say that he was not a party, and that the real party to the action was the office of administrator." And in Lane v. Lane, where certain issues relative to the execution of a will and the testamentary capacity of the testa- tor were sent to the jury for trial, the court say : " As to any personal transaction or communication with the testator, she [the executrix and legatee] was of course incompetent to testify." It will be observed that in both the above cases the wit- ness whose testimony was declared incompetent had also an interest in the event, besides being a party. Still the cases seem to sustain the rule. 2. Rule. Upon an application for probate in surrogates court the rule seems to he different. There an executor, even if he he the proponent, is not a party xolthin the meaning of the section, so as to render him incompetent to prove the execu- tion of the will. Children's Aid Sooictj^ t. L-iveridge, 70 N. Y. 387. Reeve v. Crosby, 3 Ucdf. 74. Whelpley ». Loder, 1 Dem. 3(58. Wilson, ilc, 33 W. Dig. 291. B, " Oe Person Interested in the Event." 1. Introductory. Test of interest. — Just who are and who are not to be included in this class is a serious question, and one concerning which there have been many adjudications. Code Civ. Pijo., § 829. 15 All these can, however, it would seem, be classified in accord- ance with the following general Eule. The true test of the interest of a witness is, that he wmdd either gain or lose hj the direct legal operation and (ffect of the judgment, or that the record will he legal evidence for or against him in some other action or proceeding. It must le a present, certain and vested interest, and not an interest uncertain^ remote or contingent. 1 Greenleaf on Evidence, § 390. llobart V. Ilobart, 62 N. Y. 80. Scherrer ». Kaufman, 1 Dem. 39. Miller ». Montgomery, 78 N. Y. 283. Moore v. Oviatt, 35 Hun, 316. 2. Matter of Burke. The decision in Matter of Burke, 5 Hedf. 399, which might at first glance seem inconsistent with a portion of the above rule, is, in fact, not so. In that case, the proposed witness was named as legatee in a will, on condi- tion that he perform certain services of a religious character. The legacy was indeed conditional; but the condition was one the pei'formance of which was within the discretion of the witness, and it was held that his interest was certain, so as to make his testimony incompetent within the section. 3. Instances of witnes333 hell incompatent. Within the above rule the following proposed witnesses have been held incompetent to testify as prohibited in the section. a. Beneficiaries. The benefioiaries named in a will, to sustain probate. Snyder ii. Slierman, 23 Hun, 139 ; 88 N. Y. 056. Ee Vuorliis, 1 How. Pr. N. S. 201. S. C, as Cadmus v. Oakley, 3 Dem. 324. Lane v. Lane, 95 N. Y. 494. Matter of Will of Smith, 95 N. Y. 516. 16 Competency and Peivilege. b. Heirs. The heirs at law and next of kin of the deced- ent, to oppose probate. Sclioonmaker v. Wolford, 20 Hun, 166. c. Next of-Un. Tlie next of kin, entitled to share in an estate, iu an action tending to increase the estate. IToIcomb ?). Holcomb, 95 N. Y. 316. Riggs V. Am. H. M. Soc, 35 Hun, 656. d. Doweress. A woman having an inchoate right of dower dependent on the non-probate of a will, in opposition to pi'obate. Steele «. Ward, 30 Hun, 555. Re Hewitt, 21 W. Dig. 396. A dower interest dependent on the event of an action renders a witness incompetent as against one claiming through lier husband. Thus in an action brought by the heirs of a deceased grantor, to set aside the conveyance, on the ground of undue influence, his widow, who as his wife joined in the conveyance, is incompetent, as against the grantor, to testify to communications with the decedent, tend- ing to re-establish her dower right. Sanford «. Ellithorp, 95 N. Y. 43. 6. StocklioMer. A stockholder, in behalf of the corpora- tion. Keller B. West, &c., Mfg. Co., 39 Hun, 348. Murray ». Fox, id. 108. f. Administrator. An administrator plaintiff, in an action to recover a debt alleged to be due the estate. He is inter- ested, 1st, to enhance his fees, and 2d, to avoid liability for costs. Code Civ. Pko., § 829. 17 g. Tort-feasor. A person who would be absolved from liiibiiity for conversion, in case of pkiutift's recovery (Old Code). Andrews c. Nat. Bk. of N. A., 7 Huu, 30. li. Person indemnifying officer. The person indemnify- ing a sheriff or constable, in an action against the latter for an improper levy, was held to be incompetent under section 399 as it stood in 1853, as the person " for whose immediate benefit the Buit is defended." Ilowland v. Willetts, 9 N. Y. 170. And as it stood in 1874, as "a person interested in the event." Woostcr V. Booth, 3 Hun, 430. i. Attorney. An attorney, who has a contract with his client for a percentage of the recovery, or that he should receive nothing unless his clients succeeded. Dictum. Sherman «. Scott, 37 Ilun, 331. j. Maker. The maker of a note, in an action brought against himself and the surety, but in which the latter alone defends. He would be affected by the legal operation and effect of the judgment, and tlie record would bo legal evidence in an action by the surety to recover the amount paid for his prin- cipal. 1 Greenleaf on Evidence, § 390. Church ». Howard, 79 N. Y. 415. Hill v., Alvord, 19 Hun, 77. Lawton ». Sayles, 40 Hun, 253. k. Partner. A member of a firm whose liability is already established, in an action brought against the personal representatives of another, to charge the latter as a partner. The judgment might establish a liability on the part of 3 18 Competency and Peivilege. the defendants, to cont,ribnte toward the discharge of the indebtedness of the firm of wliicli the witness was a member. Huuter v. Henick, 20 Ilun, 273. 1. Mortgagee. A subsequent mortgagee, in a foreclosure suit. Iladaall ». Scott, 26 Hun, G17. ni. Deputy -sheriff. In an action brought by a sheriff against the estate of an attorney who issued an execution, for levying under which the sheriff had been sued, and a recovery had against him, the deputy who made the levy is incompetent to testify to a parol indemnity by the attorney. Barton v. Soramling, 31 Hnn, 467. 4. Instances of witnesses held competent. On the other hand, the following named persons have been held to be not within the prohibition of the section. a. Legatee. A specific legatee ; he has no interest in an action to establish a gift by the testator. Carpenter «. Soule, 88 N. Y. 351. A legatee who has released his interest on probate. Stcbbins ». Hart, 4 Dem. 501. t). Agent. An agent is competent to testify to trans- actions with a deceased person, in favor of his principal. The judgment either way would have no direct legal effect on the agent, and the record of the judgment would not be evidence for or against the agent in another action to which he might be a party. Neiirpass v. Oilman, 16 Hun, 131. c. Attorney. The attorney is not disqualified by reason of his lien for costs. He would bo entitled to liis costs, lot the action result as it might. Sherman «. Scott, 27 Hun, 331. Code Civ. Teo., § 829. '. 19 d. Father. A father who has surrendered to his minor child her wages, before they were earned, is not disqualified in a suit brouglit by tlie child against the administrator of her employer. He has no interest. Shirley v. Bennett, 6 Lans. 513. e. Doweress. A widow, whose dower is admitted in the pleadings, on a question of advancement to a son of deced- ent, is not interested. Her right of dower will be the same whichever way the issue between the other parties may be decided. Moore v. Oviatt, 35 Hun, S16. f. Maker. The maker of a note is not interested in the event of an action against the estate of the indorser so as to disqualify him. "When interest in the event of the action disqualified a person from testifying as a witness, the maker of a note was always a competent witness for the indorsee in a suit against the indorser ; the reason being that if the plaintiff prevailed the witness would be liable to pay the note to the defendant, and if the defendant prevailed the witness would be liable to the same extent to the plaintiff ; so that his interest was baU anced (Greenleaf on Evidence, § 399)." N. T. Nat. Ex. Bk. •». Jones, 9 Daly, 348. Converse v. Cook, 31 Hun, 417. The maker of a note is competent for the surety who alone has appealed from a judgment against both. The amount of his liability both to the surety and the creditor was fixed by the judgment. He was satisfied ; and the surety by appealing could not compel the principal to indemnify him against increased costs or damages. Bradner v. Howard, 14 Hun, 420. 20 Competency and rEiviLEGE. g. Indorcer. An indorser of a promissory note, wlio lias not been charged as such, in behalf of the payee defendant. Nearpass v. Gilman, 16 Hud, 121. 5. Rule. It is not enough to disqualify that the witiuss is interested in the question involved. 1 Greenleaf on Evidence, § 389. In an action brought by an heir of a deceased grantor, to set aside a conveyance on the ground of incompetency, fraud and undue influence, co-heirs are not incompetent. The success of the plaintiff would not affect them, as the conveyance would still be valid against them. Hobart ». Hobart, 63 N. Y. 80. Smith e. Meaghaa, 38 Hun, 433. One of two joint makers of a note is not interested in a judgment that may be entered against his co-defendant, so as to render his testimony incompetent. A separate judgment could be entered against either ; and the proposed testimony of the witness, though completely establishing the common defense, could not be used to avail him. Ely K. Clute, 19 Hun, 35. Hill «. Alvord, 19 Hun, 77. The payee of a note is competent, as against one joint maker, to testify to transactions with the deceased joint maker. He could obtain separate judgments against either. Sprague v. Swift, 28 Hun, 49. 6. Rule. The interest xohich disqualifies must not le uncertain, re7nofe or contingent. Code Cit. Fro., § 829. 21 The interest of a son in an estate which is shown to be insolvent is too contingent to disqualify him. Lathrop v. Hopkins, 29 Hun, 608. The possible right of dower of the wife of a son of the decedent, in property which her husband might inherit if pro- bate were refused, is too contingent to disqualify. Scherrer v. Kaufman, 1 Dem. 39. So of curtesy. Matter of Clark, 40 Hun, 233. The judgment creditors of a deceased debtor can, in an action against the widow to set aside conveyances as fraudu- lent, testify to personal transactions witli the deceased ; they do not claim under him. Gillies V. Kreuder, 33 Hun, 314. 7. Eule. It is immaterial that at the time of the personal transaction or communication the witness had no interest. Interest at the time of examination is the test. Farnsworth «. Ebbs, 2 Hun, 438. 8. Rule. TJie words "interested in the event" are to le limited in their application to the particular issue or ques- tion as to which the witness is to he examined. Moore v. Oviatt, 35 Hun, 216. C. " Oe a person FEOM, TnEOUGH OR UNDER WHOM SUCH A PAETY OK INTERESTED PEESON DERIVES HIS INTEEEST, OK TITLE, BY ASSIGNMENT OE OTHERWISE." 1. Development. In the Code of Procedure as originally enacted, this exclusion was to " any assignor of a thing in action, assigned for the purpose of making him a witness." § 352 of 1848 ; § 390 of 1849. 22 Competency and Privilege. Bv the amendment pf 1851 it became simply "an assignor." In 1857 it was expanded to " an assignor of a tiling in action or contract." In 18G2 it became "the assignor of a thing in action ; " and thus remained until 1869, when it assumed sub- stantially the language of the present section. 2. Examples, pro and con. The language of tlie Statute in this particular is so explicit that during the seventeen years since its enactment it has given rise to comparatively few adjudications, some of which may bo cited by way of illus- tration. Thus the grantor of real estate, ■Wheelock v. Cuyler, 4 Hun , 4] 4. Bockes V. Lansing, 13 id. 38. the vendor of chattels, Conway v. Moulton, G Hun, OoO. the indorser of a note or check, Richardson o. Warner, 13 Hun, 13. Hicks V. Wirth, 4 E. D. Smitli, 78. Porter ». Potter, 18 K Y. 53. Anderson v. Busteed, 5 Duer, 485. the assignor of a mortgage, Smith V. Cross, 90 N. T. 549. and the assignor of an equity of redemption, Foote V. Boecher, 78 N. T. 155. have each been held incompetent under the section. On the other hand, a father who has surrendered to a minor child her wages in advance of their being earned, is competent, in a suit brought by the child to recover her wages, against the administrator of the employer, to testify to con- versations with the latter. lie had never been entitled to receive any of the wages Code Civ. Peo., § g29. • 23 sued for, and she tlierefore did not draw her title to tliem from Liin. Shii-ley v. Bennett, C Laiis. 513. 3. Rule. T/ie statute has reference to a transfer of title or interest hy assignment or otherwise. The maker of a note is competent, in an action against the personal representatives of tlie accommodation indorser ; for the holder does not derive his interest from the accommo- dation indorser, within the meaning of section 829. Converse v. Cock, 31 Ilun, 417. 4. Rule. The interest referred to is an interest in the sub- ject matter of tJie action ; and the prohibition is not limited to an examination pertaining to the parts of the action assigned, hut extends to the entire action. Lyon ■B. Snyder, Gl Barb. 173. 5. Rule. The prohibition applies equally although there are transfers mesne the proposed xoitness and the party or interested person. Applied to an indorser of a note where there were subse- qncnt indorsements. Richiirdson v. Wiirner, 13 Ilun, 13. 6. Rule. Where one party gives evidence of admissions by a grantor of the other 2>arty, the testimony of the grantor is admissible to rebut this evidence, even though it relates to transactions with a deceased person through whom the witness claims title. Cole ». Denue, 3 Hun, 610. 24 CoMrETENCY AND PlUVILEGE. D. " A PERSON SHALL NOT BE DEEMED 1NTEEE8TED FOR THE PUEPOSES 0F_ THIS SECTION BY EEASON OF BEING A STOCKH OLDER OR OFFICER OF ANY BANKING CORPORATION WHICH IS A PARTY TO THE ACTION OE PROCEEDING, OR INTERESTED IN THE EVENT THEREOF." Tins was added as an amendment in 1881. TITLE Y. In WHOSE Behalf offered. A. Of Paett. 1. Under Old Code. 3. Rule— Against interest. 3. Rule — For co-party. 4. Rule — Indirectly in interest. B. Of Successor in Interest. A. " Shall not be examined 'as a witness in his own behalf or interest." 1. Under Old Code. Prior to 186G, those wlio prepared tlie various amendments to section 399 kept an eye single to the precise evil aimed at ; and the incompetency of parties and interested persons and their assignors, under the section, was limited to testimony in hehalf of such parties or inter- ested persons. It is not, perhaps, strange that this was lost sight of in the labyrinthine amendment of 1866, and the evi- dence of such persons under the section made incompetent in any event. It is harder to understand why the section was allowed to remain so long in that condition. For eleven Code Civ. Pro., § 829. 25 years sncli evidence was inadmissible whether favorable to or against the interest of tlie witness. In this particular the adjudications covering that period are now valueless. Such decisions are those in Le Clare v. Stewart, 8 Ilun, 127. Alexander v. Dutclier, 70 N. Y. 385. Gifford 1). Sackett, 15 Hun, 79. Genet ». Lawyer, Gl Bavb. 211. Bennett v. Austin, 5 Ilun, 536. and many others. The following principles seem to be established under the present provision. 2. Rule. Such testimony is competent when against the interest of the witness. A residuary legatee under a will may testify to transac- tions with the testator, in behalf of a claimant against the estate. The tendency of the testimony is to lessen the estate, and so possibly to lessen the legacy of the witness. Pursell «. Fit, 19 Hun, 595. Carpenter v. Soulc, 88 N. Y. 251. The widow, devisee of a life estate in the whole of her husband's farm, is competent to testify to an agreement which, if established, would cut down her estate to a dower interest. Brown v. Brown, 39 Hun, 498. One heir at law, in an action brought by another heir at law to set aside a conveyance made by the ancestoi-, on tlio ground of fraud and undue influence, is competent in behalf of the defendant. 26 CoMPETENCr AND PeIVILEGB. His interest is with tlie plaintiff. Smith ®. MeaghaD, 38 Hun, 433. Tlie malvsr of a note, interested to protect the indorser, and so prevent any ultimate claim against himself, is compe- tent to establish the liability of the indorser. Converse v. Cook, 31 Hun, 417. 3. Rule. li is also competent when given wholly in the interest of a co^arty or other interested person. Murray ii. Fox, 89 Hun, 115. A widow whose dower right is admitted in the pleadings is competent to testily in behalf of her husband's brother to conversation had with her deceased husband on a question of advancement to him. Her right of dower will be the same, whatever way the issue between the other parties may be decided. Moore ». Oviatt, 35 Hun, 316. One of two joint niakers of a note is competent in favor of the other joint maker, the co-defendant. Ely V. Clute, 1-9 Hun, 35. Hill V. Alvord, 19 Hun, 77. 4. Rule. But is not competent when the testimony of the luitness in iehalf of another party or person in ifit'Srest must indirectly he also in his own hehalf. In Allis V. Stafford, 11: Hun, 418, on an appeal to the County Court by the accommodation indorser alone, from a judgment of the Justice's Court against both maker and indorser, the maker was held competent to testify in the interest of the indorser ; upon the ground that the liability of Code Ciy. Pko., § 829. 27 the maker for both damages and costs was ah-eady fixed, and could not be enlarged upon the appeal, to wliich it did not appear that he had consented ; and tliat ho was therefore not called to testify in his own interest. Tlie doctrine of Allis v. Stafford was in effect overruled in Church v. Howard, 79 JST. Y. 415 ; in which the maker of a note, who was a defendant but had not answered, was held incompetent to testify in behalf of his surety, upon the ground that he had an interest in avoiding a judgment against the surety. The rule thus established by the Court of Appeals was in turn questioned in Hill v. Hotchkin, 23 Hun, 414, the court inclining to the opinion, as in Allis v. Stafford, that the witness (maker) having withdrawn his defense, the surety could look to him only for indemnity to the amount of the debt and costs up to the time of the maker's witiidrawal, for which he was already liable ; but Church v. Howard was necessarily followed as authority. A subsequent mortgagee, defendant, is incompetent to testify in behalf of the mortgagor, defendant, to conversations with the plaintiff's testatrix, mortgagee. He is interested in the event, and whatever would benefit the mortgagor would also tend to benefit him. Hadsall v. Scott, 36 IIuu, 617. E. " Oe in behalf of the party succeeding to his title OR INTEREST." For authorities illustrating this provision, see Title IV., C, ante. 28 Competency and Peivilege. TITLE VI. Against Whom Offeked. A. Executor, Administbatok, Sukvivoe, Committee. 1. Development. 2. Rule — Surviving partner. 3. Rule — Joint maker, not survivor. 4. Rule — Does not apply where survivor present. 5. Rule — Surviving partner includes one liable to third person as partner. G. Rule — Party concluded by pleading that opponent is partner. 7. Rule — Executor on probate. 8. Rule — Petitioning creditor. B. SuccEssoE IN Interest. 1. Adjudications under Old Code. 3. Adjudications under New Code. 3. Rule — Mesne conveyances. 4. Rule — Contestant of probate. 5. Rule — Creditor. 6. Rule — Executor, &c., in own right. A. " Against the esecutoe, administeatoe, or suevivor OF A DECEASED PERSON, OE THE COMMITTEE OF A LUNATIC." 1. Development. In tlie ameudmeut of 1S66, tlie provis- ion in favor of "tlie survivor of a person or party jointly interested " appears for the first time ; as also the mention of '• lunatics," though not until the radical amendment of 1869 was "the committee of a lunatic" specifically mentioned in tlie favored class. So far as I have discovered, there are no reported cases in wjiicli the testimony was offered against the committee of a lunatic. Code Civ. Piio., § 829. 29 2. Rule. The surviving partner of a firm is covered hy the term " survivor." Kale V. Elliott, 18 Hun, 198. Green v. Edick, 56 N. Y. 613. Pettitj). Geosler, 58 How. Pr. 195. Conway v. Moulton, 6 Hun, 650. j Farley v. Norton, 67 How. Pr. 438. Bristol V. Sears, 10 VV. Dig. 193. 3. Rule. One of the joint makers of a note is not a " swr- vivor^' within the rule. He is liable to a sej)arate action before as well as after the death of the other maker. Sprague ». Swift, 38 Hun, 49. 4. Rule. The rule does not apply in favor of the survioing partner, when he was present at the interview ■ between the wit- ness and the deceased partner. Kale 13. Elliott, 18 Hun, 198. 5. Rule. ^'- Surviving partner'''' includes one who, though not technically a member of the firm, has become liable to third persons as such by reason of his acts. Parley ®. Norton, 67 How. Pr. 438. 6. Rule. And the plaintiff, by pleading that the defendant is, i7i legal effect, a surviving partner, is concluded by his pleading. Id. 7. Rule. The rule applies in favor of the executor pro- pounding a ivill for probate. Sclioonraaker v. Wolford, 20 Hun, 166. This was otherwise prior to the amendment of 18G9. Re Will of Dietericb, 1 Tuck, 139. 30 Competency and Pkivilege. 8. Rule. The rule does not apply in favor of a creditor petitioning to sell a decedent's real estate to pay debts, as against another creditor. Jones V. Le Baron, 3 Dem. 37. B. " Oe a person deriving his title oe interest from, THROUGH, OE UNDEE A DECEASED PERSON OE LUNATIC, BY ASSIGNMENT OE OTHEEWISE." 1. Adjudications under the Code of Procedure.' This phrase is a substitute for the word " assignee " of the old Code ; which was found in practice to be somewhat ambig- uous, though it was construed very liberally by the courts. In Mattoon v. Young, 45 N. Y. 696, it was held that although grantees are not named, they are within the reason of the act, and that the word assignee must be held to include them. And in Van Tuyl v. Yan Tuyl, 57 Barb. 235, the opinion was given " that M'hen adverse rights by possession ai-e involved, one litigant shall not testify to a transaction with a deceased predecessor in title, invalidating or impairing the right or title of the other." In Cornell v. Cornell, 12 Hun, 312, the word " assignee " was held to apply to a " transferee under an executed con- tract," i. e., a gift from a husband in his lifetime to his wife, who as his widow claimed title thereunder. In Theall v. Steitz, 6 Daly, 482, it was held to not include the assignee of a devisee. And in Champlin -y. Secber, 56 How. Pr. 46, that it did not protect a receiver in behalf of a judgment creditor of the deceased. 3. Adjudications under the present section. The provis- ion of section 829 has been applied in tho following cases : Code Civ. Pro., § 829. 31 In Smith v. Cross, 90 N. Y. 519, in favor of plaintiffs who chiiraed as assignees of a mortgage, a prior assignor of which was the deceased person, where the mortgagee was called to testify, in behalf of the defendant, to conversations with the decedent. In Taylor v. Meldrum, 19 W. Dig. 25, in favor of a sher- iff who had levied on goods by virtue of an execution against a deceased person, where the plaintiff, who claimed title through a transfer from the decedent, was offered as a Avitness in his own behalf to testify to transactions with the decedent. In both the above cases the proposed testimony was rejected, as also in Curtiss v. Moore, 52 Super. 532. 3. Rid.e. The ride applies, although the opposite party loas not tlie immediate grantee, cfic, of the deceased, Ijut derived title through one or more mesne conveyances. Pope V. Allen, 90 N. T. ?.98. This was otherwise under the old Code. Trouty v. Eaton, 41 Barb. 409. Ciuy V. Wliile, 59 N. Y. 33G. 4. Eule. The contestant of p>rohate is a person deriving an interest under the deceased within the meaning of the section. flatter of Will of Smith, 95 N. Y. 516. Cadmus ». Oakley, 3 Dem. 334. This in effect overrules the case of Whelpley v. Loder, 1 Dem. 368, where the contrary rule was given. 5. Rule. The rule does not apply in favor of a creditor of a deceased person. 32 Competency and Peivilege. So held in case of a creditor wlio, upon the liearing of an application to sell real estate of a decedent for the payment of his debts, objected to certain claims that had been allowed by the administrator, on the ground that the claims were proven by testimony incompetent under section 829. Matter :of Le Baron, 67 How. Pr. 346. 6. Rule The rule does not apply in favor of an executor, administrator, &c., who is a party, or interested, not as such, hut in his own right. Hall V. Richardson, 23 Hun, 444. Titus B. O'Connor, 18 Hun, 3.73. Stephens v. Cornell, 32 Hun, 414. Barry v. Equitable Life As. Soc, 59 N. Y. 587. Witthaus V. Schack, 24 Hun, 328. Matter of N. Y. C. & H. R. R. R. Co., 90 N. Y. g43. In Titus V. O'Connor, the defendant had entered into an agreement with the plaintiff's liusband to work a farm of the latter on shares. After the death of the husband, devis- ing the farm to his wife, the defendant iftade a new agreement with her, referring to the former agreement for its terms. In an action by the widow to enforce this agreement, held, that the plaintiff, though devisee and executrix, derived her title to the subject-matter from her own contract, and not by succession from her husband, and that the defendant was competent to testify to the terms of the agreement with the husband. In Stephens v. Cornell, the defendant pleaded as a conn- terclaim an indebtedness against the deceased father of the plaintiff, which he alleged the plaintiff had undertaken with the heirs at law to pay, and offered himself to prove trans actions with the plaintiff's father. Held competent. Tlie counterclaim was against the plaintiff individually ; and the Code Civ. Pro., § 820.. 33 plaintifE's liubilitj' was not as au lieir at law, or in any way as Jeriving title or interest from his father, but simply because of the covenant. In Barry v. Equitable Life Assurance Society, a widow, the ])l;iiiitifE in an action to determine conflicting claims of herself and two defendants to insurance on her husband's life, u'as held competent under the section as against a defendant who claimed title by assignment from the plaintifiE herself, and not from her deceased husband. A case somewhat similar was that of Wittliaus v. Scliack, where a widow, the plaintiff in an action to set aside a deed executed by herself and her husband, since deceased, was hold competent under the section, upon the ground that the defendant's title to her dower interest was derived through her directly, and not through any title or interest of her hus- band. In the Matter of the N. Y. C. & II. R. R. R. Co., the witness, claiming title by a deed purporting to have been executed by the ancestor of the opposite party and by his wife, deceased, was held competent to testify in his own behalf to conversations with the deceased wife, because the heirs, opposite parties, did not claim through the decedent. TITLE VII. Natueh of Testimony Excluded. A. Personal tkansactions oe communications. 1. Introductory. 2. Rule — Agent with deceased person. 3. Kule — Agent of depeased person. 4. Rule — Deceased agent. 5. Rule — Fact of transaction. C. Rule — Personal, not private. 3 3i CoMPETENCT AND I'uiVILEGE. 7. Rule — Wliei-e survivor present. 8. Rule — Silence. 9. Transactions not prohibited. 10. Transactions prohibited. 11. Concerning a personal transaction, &c. E. Tkans-ictioks, &c. between decedent and a tiiied PERSON. 1. Rule — "Witness when competent. 2. Rule — Witness when incompetent. 3. Rule — Omitting personal share. C. Negativing personal tkansactions oe coMmrNicATioNs. 1. Rule — Negative testimony. 2. Rule — Contradicting third person. A. ' ' Co:nceening a personal teansachon or comiiuxica- tion between the witness and the deceased person OR lunatic." 1. Introductory. The question as to wliat does and Avliat does not constitute a personal transaction or communication within the meaning of section 829, is perhaps the most per- j)lexing one that arises in connection with this troublesome section of the Code. The variety of cases to which the rule may be applied is the variety of Imman transactions. The most tliat can be done is to examine the adjudicated cases and observe the tendency of the courts in the application of the statute. 2. Rule. The section does not apply to transactions of a'jents with deceased persons. Nofirpass ». Gilraan, 10 Ilun, 131. Code Cir. Peo., § 829. 35 3. Rule. T/ie section does not apply to transactions or communications with agents of deceased persons. Pratt ». Elkins, 80 N. Y. 198. The case cited was an action upon a promissory note, to which the defense was usurj'. The defendant was allowed to testify to the payment of usurious interest to clerks of the plaintifE's testator, at the banking-house of the latter. 4. Rule. The section does not apply to transactions or communications with the deceased agent of the opposite party. Hildebrant v. Crawford, 65 N. T. 107. 5. Rule. The simple fact that a transaction or communi- cation was had is not incompetent, unless that is tlie material fact. Hier v. Grant, 47 N. Y. 278. Maverick v. Marvel, 90 N. Y. 656. 6. Rule. A personal transaction is not neoessdrily a pri- vate transaction. Hatch V. Peugnet, C4 Barb. 189. Howell v. Taylor, 11 Hun, 314. Holcomb V. Holcomb, 95 N. Y. 316. 7. Rule. The death of one of iioo persons jointly interested does not render a party incompetent, as against the survivor, to testify to personal transactions or communications with the decedent, at which the survivor was present. Comstock V. Hier, 73 N. Y. 269. Kale V. Elliott, 18 Hun, 198. In the former case the decedent was the joint maker of a note ; in the latter, a copartner. 2G Competency and Privilege. 8. Eule. The silence of the deceased, provided such silence may he construed to mean asse?it, comes within the prohibition of the section . Fox «. Clark, 01 Caib. 216, n. Oliver ». Preligh, 311 Hun, 033. 9. Transactions h3ld not within tli3 prohibition of the section. a. Birth. A iiiotlier is competent to testify to the birtli of her child. So held in a proceeding brouglit by tlie mother to revoke probate of the will of her deceased child by reason of his non-age. Matter of Paige, 63 Barb. 476. b. Signature. The answer to the question "Is that yonr signaturel" does not necessarily involve a transaction or personal communication with the deceased. Evans t>. Ellis, 23 Hun. 460. Saratoga Co. Bunk «. Leach, 37 Ilun, SCO. An administrator, on the hearing of his own claim npon an accounting, may testify to the signature of the decedent to an instrument given by him to the witness. Estate of WaUlron, 10 W. Dig. 38. c. Driving to house. The defendant is competent to testify that npon a certain occasion he drove his team to the house of the plaintiff's intestate. Crowley v. Davis, 4 W. Dig. 406. d. Entry in hooJc and, htniioritinj. As secondary evi- dence of the contents of a book of accounts, notice to pro- duce which has been given, and which has been proven to be lost, the plaintiff may testify to an entry which he saw in the Code Civ. Pbo., § 829. 37 decedent's book of accounts, in his life-time, and that it was in the handwriting of the deceased. Carroll v. D:ivis, 9 Abb. N. C. 60. G. Transaation at efiecutlon of will. In Heeve v. Crosby, 3 Redfield, 71, it was held, that a legatee under a will, not a subscribing witness, was competent to testify, on an application for probate, to what took place at the time tlie will was made; e. g., to what he saw the testator do, and what he heard him say to the -subscribing witnesses, even when the witness participated to the extent of asking tlio testatrix the usual formal questions. f . Fact that witness had no knowledge of a fact except that derived from decedent and one other person. Matthews o. Smith, 5 W. Dig. 1C7. g. Fact that the name of the decedent was on a paper at a given time. In an action of replevin to recover possession of two town bonds, wliich the defendant claimed as assignee of oiio Fellows, deceased, the plaintiff claimed as transferee from one Redbourne ; that he put the bonds in a safe, from which, in his absence, they were taken by the defendant. The defendant claimed tliat the plaintiff held them as agent of Fellows. The plaintiff was held competent to answer in his own behalf the following questions: " At the time you left those bonds in tlie safe, was the name of Mr. Fellows in either of tliese indorsements? "W, •- the name of Joseph Fellows anywliere in thes.e instruments at that time ?" The court say, in the action above cited (Wadswortii v. lleerinans, 83 K Y. G39) : "We do not think the inquiry involved any personal transaction between Hill and Fellows. 38 CoiIPETENCY AND PRIVILEGE. It respected mere]j the then condition of the bonds. It neither affirmed nor negatived any personal transaction between the two. The insertion of his name in the blank might well have been the separate and independent act of Fellows, and not, in and of itself, a personal transaction between tlie two. That the name was not in the bonds when Hill left them in the safe amounted only to a description of the bonds and indorsement as thus left. . . . We must enforce the rule fairly, but draw the line somewhere. It is not always easy to do so with entire certainty and precision. . . . Tiie spirit and purpose of this provision of the Code is equality, to prevent undue advantage ; and that purpose sliould be kept in view wlien border questions ai'ise and lines of distinction are to be drawn." h. Possession of deed and signature. In Simmons v. Havens, 4 East. Ecp. 278 ; 101 N. Y. 427, held, that- the plaintiff, grantee, was properly allowed to testify that she Imd the deed and that the signature was in the handwriting of the decedent. " The plaintiff might have received the deed from some third person." 10. Transactions witMn the prohibition. The following have been held to be transactions or communications con- cerning which a party or interested person is incompetent to testify under this section of the Code. a. Marriage. In Angevine -y. Angevine, 48 Barb. 417, it was held that on an application to the surrogate for letters of administration by a person claiming to be tlie widow of tlio decedent, the petitioner is incompetent to testify to her mar- riage with the deceased. b. Communications tending to show that the alleged deced- ent is still living. Parlian r. M)ran, 4 Ilua, 717; 71 X. Y. 59C. Code Civ. Peo., § 829. 39 c. Payment or tion-jMymoit. Kerr v. McGuii-e, 28 N. Y. 440. Howell i>. Van Siclen, 6 Hun, llo; 70 N. Y. 595. PettitB. Geesler, 58 How. Pr. 195. Williams c. Davis, 20 "W. Dig. 572. Bougbton ». Bogardus, 35 Hun, 198. Weed -0. Hornby, 35 Hun, 580. Lerclie v. Brasher, 37 Hun, 385. d. Consideration. A party cannot testify to tlie consider- ation of a note. Van Alstyne v. Vm Alstyne, 28 N. Y. 375, Stanley v. Whitney, 47 Barb. 58C. Or of a deed. Ballon V. Ballou, 78 N. Y. 335. Or that a note was without consideration. Benedict v. Driggs, 34 Hun, 94. e. Contract of hirinj. In an action by an execator for conversion, in M-hich the defendant claimed a lien for rent against the testator, he is incompetent to testify to a hiring, by the deceased, of a part of her house at an agreed rental. Hammond v. Schultze, 45 Super. Oil. f. Contract of purchase. The plaintiff is incompetent to answer the question: "Did you ever agree to pay $30 per acre for the land ?"' the alleged agreement being with the defendant's deceased grantor. Chadwick v. Fonner, 69 N. Y. 404. g. Implied agreement. A party or interested person can- not testify to transactions or communications with a deceased person, as tending to show an implied agreement to pay for services. Jacques ti. Elmore, 7 Hun, 075. Burnett o. Noble, 5 Redf. 69. ■iO Competency a.nd Privilege. Nor can he indirectly prove an agreement by testifying to the accuracy of a bill of particulars of services rendered and goods sold to a deceased person. Fisher v. Verplunclc, 17 Ilun, 150. li. Services. In an action by an attorney to recover for legal services alleged to Lave been performed for the decedent in his life-time, the plaintiff cannot testify that he commenced an action for the decedent. Freeman v. Lawrence, 43 Su-per. 388. Or that his services consisted oi counsel and advice ren- dered by him to the deceased in several matters. Somorville v. Crook, 9 Hun, G64. Or to the amount and value of services, after his general employment by the decedent is shown. Lercbe i). Brasher, 07 Ilun, 885. A physician, in an action for services, cannot, as against the executor, testify that he attended tlie testator profession- ally. Clarke v. Smith, 40 Barb. 30. Koss ». Ross, 6 Ilua, 183. QuEere ? Whether a physician can even testify to the cor- rectness of his books, or make any statement in regard to them, as against the personal representatives of a deceased person. Knight V. Cunnington, G Huu, 100. Though in Chirke v. Smith, supra, it was held tliat the entries on his books would bo competent to prove the nnmbet of visits, but for no other pui'pose. Code Civ. Vho., § 829. 41 i. Genuineness of signatut^e. For the purpose of proving an admission of tlie original plaintiff in an action, since dotcased, and in wliosc place her personal representatives have been substituted, the defendant is incompetent to testify that he saw the deceased subscribe the Terification to the original complaint. D(.Dham v. Jiiyne, 3 Hun, 614. la Garvcy v. Owens, 37 Ilun, 498, a witness through whom the plaintiff claimed title was held incompetent to tes- tify to tlie genuineness of the signature of a decedsnt to a deed and agreement to convey. Botli this case and the dissenting opinion in Saratoga County Eank v. Leach, 37 Ilun, 336, follow Ilolcomb v. Holcomb, 95 3^-. Y. 31C. But the prevailing opinion and decision in Saratoga County Bank v. Leach, hold that the maker of a promissory note may deny his signature as against the indorsee of the deceased payee. j. Address iipon package. Stuart V. Patterson, 37 Hun, 113. k. Transfer with intent to delay or defraud creditors. A plaintiff cannot answer the question whether he put any money into the hands of the defendant's intestate, with the intent to hinder, delay or defraud creditors. Tooley v. Bacon, 70 N. Y. 34. 1. Instructions to trustee. In an action brought by alleged beneficiaries to recover a fund placed, by a person since deceased, in the hands of the defendant, in trust for certain purposes, the defendant cannot testify what his instructions from the decedent were. Wilkins t. Baker, 24 Hun, 33. 42 Competency and Pbivilege. ra. Surrender of written instrurnsnt. For the purpose of proving tlio loss of a note, the defendant (holder) cannot tes- tify that he parted with its possession to the maker, since dead, throngli whom the plaintiff claims title to . her cause of action. Van Gelder e. Van Gelder, 81 N. Y. C35. In an action of partition, the defendant, who claimed title under a deed from the plaintiff's intestate, cannot testify that she received a deed from an attorney and handed it back to the deceased. Shufelt V. Watrous, 10 W. Dig. 108. n. Delivery of note to person, jointly interested. A defendant cannot testify to the delivery of notes by plaintiff's intestate to a co-defendant jointly interested with the witness, and in whose behalf the testimony is offered ; said delivery being claimed as a gift by the defendant. "V'i''aver ». Waver, 15 Ilun, 277. o. Transactions at delivery of deed. In an action brought by a surviving child of a decedent, to have a deed to the defendant from the decedent declared to be in trust for the plaintiff, the latter is incompetent to testify to what took place in the sick-room, at the time when the father caused the deed to be delivered, and gave directions for, as well as advanced the money to pay for its recording. Moyer b. Mnyer, 31 Hun, 67. p. Contents of jpaper. hi an action to foreclose a mort- gage, the defense was that it was given as collateral security to a certain agreement in writing executed by the plaintiff's testatrix and himself. The defendant, having testified that he had seen the paper, and having shown its loss, was held Code Civ. Pbo., § 829. 43 incompetent to testify tli.at it Lad been read to liini and to state its contents. Iliidsall V. Scott, 26 Hun, 617. So in Pease v. Barnett, 30 Hun, 525, an action on a bond given to the plaintifl! by defendant's testatrix, a married woman, tiie defense was tliat it was altered after execution, by tbe insertion of a clause binding her separate estate. The plaintitf was held incompetent to testify that he saw the bond before its execution, and that it then contained the clause. q. Change of pajper. In an action for services, in which the defense was payment, the plaintiff wtis held incompetent to testify that a receipt offered in evidence by the defendant liad been changed since it was given by her to the defendant's intestate, so as.to make it a receipt in full instead of one on account. Boughton V. Eogardus, 35 Hun, 198. r. Carrying ink-stand. Upon a question of genuineness of signature, where the defendant deemed it important to prove that two ink-stands were present at an interview between liim- self and the plaintiff's intestate, the defendant was held incompetent to testify whether or not he was, at the time, in the habit of carrying an ink-stand. Dubois 1). Baker, 40 Barb. 556; afiE'd, 30 N. Y. 355. s. Comrmmicatlon hy signs and sounds. In the case of a will of a person who could not speak, his wife, who was executrix and a legatee, and who was familiar with the sounds made by the testator, and the signs or motions by which he communicated ideas or wishes, and who conversed with him on the occasion when the will was made, was not per- a ' Competency and Peivilege. mitted to testify to what lie oonveyed to her by sound or signs, or to her report of what he said to herself or others. " What she learned from him no one else could verify or deny." Lane v. Lane, 95 N. Y. 494. t. Conduct of decedent as evidencing mental condition. In Ilolconib v. Ilolcoinb, 93 N. Y. 316, the Court of Appeals construe the expression, " personal transaction or communication," to be very comprehensive in its application. This was an action to set aside an assignment of a bond upon the ground that the assignee was of unsound mind and was under undue influence. The court say : " Transactions and, communications embrace every variety of affairs which can form the subject of negotiation, interviews or actions between two persons, and include every method by which one person can derive impres- sions or information from the conduct, condition or language of another. The statute is a beneficial one, and ought not to be limited or narrowed by construction." And again : " The policy of the statute excludes the evi- dence of an interested witness concerning, 1st. Any transac- tion betw'een himself and a deceased person, or in which the witness in any manner participated ; 2d. All communications between the person deceased and the witness, including com- munications in the presence or hearing of the witness, if he in any way was a party thereto, or communications to either one of two or more persons, if all were interested. Each of these species of testimony is as much opposed to the spirit and intent of the statute as the other. If the proposed witness has asked a question of the decedent and it is answered, it is a conversation ; if, while the decedent is talking with a third person, the witness by word or sign participates in it, or is Code Civ. Vrq., § 829. 45 referred to, liis evidence of wliat ocunrred cannot be received." Accordingly, the sons of tlie decedent were liold incom- petent to testify to seeing the decedent have spasms or Hts. Also to his appearance on the day the assignment was exe- cuted, the court saying: "Each testified to a mental and bodily condition of the assignor, as indicated by conduct which they observed and by his absolute inattention to them and their remarks, entirely incompatible with the possession of understanding, or the ability to comprehend the nature of the act — that of acljno\vled";inn: the assin;nmont, which he tliat day is said to have performed." One of the sons, having been asked to "state what yon heard your father saying or doing, or what you heard your father say when it was uot addressed to you ? " — answered : '• I have often heard him talking to himself and carry on conversations the same as though he was talking to somebody, and there was nobody in the house, that was in the room he occupied. I listened to hear what he was saying." The question " What was it?" was excluded, the Court sa^dng : " Tlie witness pre- pared himself to hear wliat his father might say. His testi- mony is not made admissible because his father did not solicit the interview and was even ignorant of his presence. The words, when spoken, became a coniniuuicaticjn which he received. It was then a communication to him." The following evider.ce also was held incompetent : " Q. What about his memory in the spring of 1800 ? A. I thought he was very forgetful. Q. What made you think so ? A. He would ask me questions, and maybe ten or fifteen or twenty questions. He would ask me over again. In a little while ho would ask me again the same thing." (Another son.) " I recollect of seeing my father on the 46 Competency and Pkivilege. road just below the Hollow, within two or tliree years of his deatli. 1 was in a wagon and lie on foot, walking. I saw liim ahead ; lie was tottering along feebly. I stopped my horse and spoke to him and he kind of stared at me. Q. What was the expression of his eyes and countenance ? A. I don't think he knew me. Q. "Would you think that his countenance did not indi- cate recognition ? A. Yes, sir. Q. Did he speak to you 1 A. I think not. I got o£E the wagon. Q. What did he do after you took hold of him ? A. He did not move away. I took him in my arms, and set him in my wagon. I went with him up to Lyman Paine's. In former days his weiglit was from 160 to 175 pounds. Q. What was liis weight then ? A. I should think not over 75 poupds — the lightest man I ever lifted. Q. Judging from what you heard him say then and after- ward at Paine's, how would you cliaractcrize his appearance? A. lie appeared almost exhausted, mentally and physi- cal]}^ — imbecile." Holcomb V. Holcomli wiis floscly followed in Camp- bell V. Hiibbiird, 2i) W. Dig. 3, aud Smith v. Meaglian, 40 Hun, 401. 11. "Concerning" a personal transaction, &o. In the amendment of 1860, which was the first attempt of the legislature to make the exclusion upon the present basis, the language was " in respect to transactions had personally between the deceased person and tiie witness." In 1862 it became " in respect to any transaction or com- munication had personally with a deceased person." The expression "in respect to" was retained until the amendment of 1869, when it became " in regard to ; " wliich Code Civ. Tbo., § 829. 47 in turn was clianged in the new Code to its present form, " concerning." It is not probable that any distinction of meaning was intended to be conveyed by these changes ; all may be regarded as equivalent to the original " in respect to ; " although in Markell v. Benson, 55 How. Pr. at page 360, a distinction is made between " as to " and " concerning." In some of the earlier cases the phrase " in respect to," was somewhat discussed and applied ; and in Stanley v. Whit- ney, 47 I3arb. 586, the following was laid down as the test : " Does the testimony tend to prove what the transaction was ?" This rule was cited and repeated in the opinion in Strong V. Dean, 55 Barb. 337 ; and the courts in several recent decis- ions have given considerable importance to the word "con- cerning." In the recent case of Price v. Price, 33 Hun, 69, this doctrine is elaborated. In that case the plaintifE sought to prove that certain United States bonds belonging to her were on a certain morning deliv- ered from her possession into that of the defendants' testator for safe-keeping. To establish this, having first testified, as she was competent to do, that in tlie morning the bonds were in lier room in a tri,ink, the plaintifE then testified that the dece- dent subsequently came to her room, and that he then had the bonds in his possession. The Court say : " Tiiis was proving a matter of substan- tial fact cowcernin^ a personal transaction between the plaintiff and the deceased, because the several facts just stated, taken together, show that her bonds remaining in the trunk on that morning had in some manner been transferred to the posses- sion of the deceased, and were then in his pocket. Her claim, it is to be recollected, is that they were to be delivered to him 48 Competency and Peivilege. for safe-iveeping for lier benefit; and the testimony given most clearly concerns that personal transaction which, accord- ing to the testimony, must have been had between the two, and goes far toward establishing the allegations of the complaint." In "Wilson v. Eeynolds, 31 Ilun, 46, an action to foreclose a mortgage given to plaintiff's testator, the defendant was held incompetent to testify whether or not the plaintiffs' testator took any part in the signing of the mortgage. Also at what time and place the money was paid for which the mortgage was given; as being testimony concerning the per- sonal transaction. In Koehler v. Adler, 91 IS". T. 657, an action to recover a loan alleged by the plaintiff to have been made by him by check to the defendant's intestate, the defend- ant claimed that it was made in the business of the Stone- wall Oil Company, of whicli the decedent was president and the plaintiff was treasurer. Tlie plaintiff was held incom- petent to answer the question whether the check in question liad anything to do with the affairs of the Stonewall Oil Company. The Court say : " Tlie check on its face imported a per- sonal transaction between the plaintiff and the intestate. The point in issue was whether it related to an individual trans- action of Koehler's, or to a transaction by him as treasurer of the Stonewall Oil Company. The giving of the check was consistent witli either theory, and when the witness was asked whether it had anything to do with the affairs of the Stonewall Oil Company, he was called upon by his answer to characterize the transaction either as an individual or a cor- porate one. The answer to the question would necessarily show luJiat the transaction was, and the plain purpose of the inquiry was to negative the possible inference from the cir- cumstance that the check was given by the plaintiff as treas- Code Civ. Peo., § 829. 49 urer of the oil company. It is not the test of the admissibil- ity of tlic evidence that an answer in the affirmative would have been adverse to the interest of tlie plaintiff, but whether proof of the fact to which the inquiry related would involve a disclosure of the nature of the transaction at the time the check was given." In AVood V. Holmes, 19 "W". Dig. 121, an action on a prom- issory note against the personal representatives of the maker, tlie plaintiff was held incompetent to testify w^hy lie bor- rowed money of the deceased subsequently to the date of the note, instead of asking payment on the note. '• The inquiry involved a personal transaction." In Matter of Will of Smith, 95 N. Y. 516, the proponent, who was also the chief beneficiary under the will and the attorney who drew it, was held incompetent, for the purpose of rebutting the charge of undue influence, to testify : 1st. To the contents of a former will drawn by him and executed by the testatrix ; 2d. That a memorandum produced was made by him at tlie house of the testatrix, at the time of an interview which Le liad testified to having, and from it another prior will was drawn by him. " It was evidence concerning a personal transaction or com- ir.unication between the witness and the deceased." In this connection, see also, Maikell v. Benson, 55 How. Pr. 360. Bweet ®. Low, 28 Hun, 433. Holcomb D. Holcomb, 95 N. Y. 316. In Viall V. Leavens, 39 Ilun, 291, an action of partition, the contest was between two defendants, Ezra B. Banker, who claimed title under a deed from the decedent, and Ellen M. Banker, the widow of decedent, whom he had married after 4 oO Competency and Pkivilege. the alleged transfer to Ezra. The facts appeared tliat Ezra received the deed, took it for some purpose to tlie draftsman, by whom it was returned to the decedent, and never reached Ezra again. Ellen M. Banker was held incompetent to tes- tify that she had the custody of the deed before and^fter its acknowledgment and, except three short intervals, down to the time of trial. The Court say : " The object of this testi- mony was to support the conclusion that her custody of the deed was the decedent's custody, and that she received it from him and held it for him. That she had and held the deed was an indirect method of testifying concerning her personal transaction and communication with the deceased, in which he delivered to, her the deed and told her to keep it; and its materiality was to the end that the transaction and commnni- cation might be inferred. She therefore testified, ' concern- ing' both transaction and communication, though she did not directly say she had either." B. Teansactions, &c., between a decedent and a thied PERSON. 1. Rule. A party or interested person who was present at a transaction or conversation between a deceased person and a third person, hut did not participate therein, is competent to testify to tlie transaction or conversation. Simmons v. Sisson, 36 N. Y. 264. Lobdell «. Lobdell, 36 N. Y. 327. Siinfoid v. Sanfoid, 61 Barb. 293. Gary b. White, 59 N. Y. 386. Ilildebrant ii. Crawford, 65 N. Y. 107. Marsh v. Gilbert, 2 Redf. 465. Patterson ». Copeland, 52 How. Pr. 460. Nicliolls V. Van Valltenburgli, 15 Hun, 330. Badger v. Badger, 88 N. Y. 546. Code Civ. Peo., § 829. 51 In Sanford v. Sanford, an action brought by a son, as heir, against the other heirs, for distribution of personal and parti- tion of real estate, one of the defendants was held competent to testify that he overheard a conversation in which the deceased said to a third person : " I have this morning made each of my sons a present of a house and lot, as a New Year's present." In Cary v. White the court went so far as to hold that this would be true even though the third person were the counsel of the witness. And the Court say: "Nor would the fact that the plaintiff participated in the conversation alter the matter, so long as what is proposed to be proved is limited to what was neither personal transaction nor communication be- tween the witness and the deceased." 2. Rule. A party or interested person cannot testify to what transpired at an intervieio between the decedent and a third person, if the witness tooh any part in the intervieio. Farnswortli B. Ebbs, 3 Hun. 438. Kraushaar ®. Meyer, 73 N. Y. 602. Smith V. Ulman, 36 Hun, 386., Milligan ». Robinson, 16 AV. Dig. 96. Bi-ague ». Lord, 67 N. Y. 495. Hood v. Teeter, 10 Hun, 548. Wilson «. Reynolds, 31 Hun, 46. Holcomb ®. Holcomb, 95 N. Y. 316. Price v. Price, 33 Hun, 69. Or if he were silent, bat his silence was equivalent to assent. Smith c. Ulman, supra. In Brague v. Lord, an action to recover for services as an attorney, the plaintiff was held incompetent to testify to an interview between the decedent and a third person, in which 52 COMPETENCT AND PRIVILEGE. the former, turning his head toward the witness, said : " We ciumot tell wliat we will have to pay until we know what our lawyers' charges are." In Hood •;;. Teeter, it was held that the party was incom- petent to testify, even though he did not participate, at all \u the conversation, but the third person was his agent, acting in Lis behalf. In Wilson ns. Reynolds, an action to foreclose a mortgage, the defense being usury, one of the defendants was held in- competent to testify that she was sitting in the oflSce twenty feet away, and saw the deceased pay the other defendant $950, and heard the other defendant say to the deceased : " Here is $950, as we agreed." The Court say : " Where two persons on one side make a bargain with a third, all three being present, and one of the two does all the talking on their side, if the other is not hav- ing a personal transaction with the third, under the section in question, then the evil against which the exception in that section is aimed has not been prevented, and we can best interpret that section by noticing its evident object," la Holcomb v. Ilolcomb, an action brought by the admin- istrator of the assignor to set aside a bond and mortgage because of the mental incapacity of the assignor, one of his next of kin was held incompetent to testify to statements made by the deceased, though not addressed to the witness and made in ignorance of his presence, tending to show his enfee- bled and dependent condition. In Price v. Price, the plaintiff was held incompetent to testify to conversation between the defendant's intestate and a third person, the action being brought to recover the pro- ceeds of bonds alleged to have been placed by her in the hands of the defendant's testator for safe-keeping, and which Lad been subsequently sold by him. CoDii; Civ. Pko., § 829. 53 The tliii'd person was a 5otectivc, and the testimony was as follows : " Q. "What did Price (the defendant's testator) say to Ben- nett (the detective) in your presence ? A. You mean when Bennett said it was no professional thief? Q. Yes. A. Well; he said, 'No, of course; if it had been they would have taken all of themj whereas here is the balance of the $12,000, in my pocket.' Q. Meaning Mr. Price's pocket ? A. Yes, sir ; he took them out of his pocket and exhibited — took them from the envelope they were in. "But," he said, " they won't get any more, because I am going to put them into a bank for her " — meaning me. Q. Was anything said by you in the course of these remarks between Price and Bennett to which you have testi- fied ? A. No, I did not ; Piiee and Bennett came to the prem- ises together ; when they came the bonds were in Mr. Price's pocket. Q. Do you know whether or not Mr. Price was at the place or in that room any time before his return with the bonds after the discovery of the theft. A. He was there before he came with Mr. Bennett and after the theft." The Court say : " The rule of the section itself is, we think, simple and plain. It declares that the surviving pai'tj' in such a case as this shall not give testimony against the representative of a deceased person concerning a personal transaction or communication between him and the deceased person. The object of the rule is equally clear and plain. It is that where death has closed the lips of one party to a per. 54 Competency and Peivilege. Bonal transaction or communication' between him and another, which the deceased could obviously contradict or explain, were he living, the other shall not be a witness to prove such trans- action or communication in an action against the representa- tives of the deceased. The survivor is not to be heard, because the dead person cannot be. A personal communication, witli- in the true meaning of the section, is any one which the sur- viving party claims to have received directly or indirectly from the deceased person, and which the deceased person, if living, could contradict or explain. 'Nor, in our judgment, is the mode of making tlie communication by the deceased to the survivor at all controlling. Spoken words are communi- cated to all who hear and understand them, whether addressed to one or many." 3. Rule. Apart)/ cannot hy leaving out his own personal share of a conversation in which he participated, testify to siich part of the conversation as was had between the deceased and a third jjerson. Ross V. flarden, 43 Super. 437. C. Negativing peesonal teansaction oe cojimunicatfon. 1. iRule. All testimony, whether negative or affirmative, is equally affected hy the statute. Barrett «. Carter, 3 Lans. 68. Haughey v. Wright, 12 Hun, 179. Stanley v. Whitney, 47 Barb. 58C>. Clarke «. Smith, 40 Barb. 30. In Barrett v. Carter, an action to have a lease and bill of sale declared a mortgage, the plaintiff was held incompetent Code Civ. Pko., § 829. 55 to testify that lie did not pay rent to tbe defendant's devisor, the Court saying : " Althougli it was negative testimony, yet it related to the subject matter of the controversy, and to a fact ill regard to the action of the testator, which cannot be considered otherwise than as a transaction between the par- ties." In Haugliey v. Wright, the Court say : " It seems that under that section proof that no personal transaction took place is' equally inadmissible with evidence that one did take place." In Stanley v. "Whitney, the Court say : " Evidence may be' just as effectual and as pertinent to establish the true nature and character of a given transaction when used in a negative as in an affirmative form." 2. Rule. After evidence has heen given iy a third person who claims to have heen present, concerning a personal trans- action or communication hetween a decedent and a party or interested person, the latter, in his own hehalf: (a.) May give evidence the nature and substance of which is, in effect, and nothing more than, a statement that there was no interview hetween the witness and the decedent, at the time and place testified to hy the third person • hut, (b.) May not deny that the transaction or communication tooh place as testified to hy the third person. Dyer d. Dyer, 48 Barb. 190. Pinney v. Orth, 88 N. Y. 447. Lewis v. Merritt, 98 N. Y. 30G. McKenna v. Bolger, 37 Ilr.n, 53G. Carney v. Wadhams, 9 Civ. Pro. Tl. 204. In Gorham v. Price, 25 Ilun, 11, where an executor, plaintiff, had proven by a third person a conversation between 56 Competency and Peivilege. liis testator and tlie defendant, tlie distinction indicated in tlic above rule seems not to luive been observed, and tlie defend- ant was held competent to testify whether or not the conver- sation took place. In Dyer v. Djer, the Court saj : i' It (§ 399) was designed to prevent a party from testifying as to any transaction where the other party had no opportunity to be sworn, and to give his version of the matter. The object would be entirely defeated, if, after proof by a disinterested witness of a trans- action occurring bet\veen two parties, one of whom whs deceased, the party still alive should be permitted to como upon the stand and testify that no such transaction took place." This question was treated at length in Finney v. Ortli, where a witness for the plaintiff, administratrix, testified u^ certain conversations in liis presence, at a certain place, between the plaintiff's intestate and the defendant. It was then held competent for the defendant to testify that the plaintiff's witnesses wei'e never present at the place specified when any conversation or transaction occurred between the witness and the deceased, and that the interviews between them did not occur at (he jilaco named by the wit- ness ; but that it was not competent for him to testify to any- thing; that was or was not said or done between them. The Court say : " T!ie primary intent of this prohibition is very apparent, and is to prevent a surviving pai-ty from pi'oving, by his own testimony, a personal transaction or com- munication between himself and a deceased person, whicli, but for the prohibition, he might do without fear or pofsiliil- itj of contradiction. The language of the prohibition is suf- ficiently broad to prohibit the survivor from testifyir.g that any particular communication or transaction did or did not take place personally between liimseif and the deceased ; but Code Civ. Peo., § 829. 57 there we think the prohibition ends, and that it does not pre- clude the survivor from testifying to extraneous facts or circumstances, which tend to show that a witness who has testified aiBrniativelj to such a transaction or communication has testified falsely, or that it is impossible that his statement can be true, as, for instance, that the survivor was at the time absent from the country where the transaction is stated to have occurred, and that, so long as the testator refrains from testifying as to anything that passed, or did not pass, person- ally between himself and the deceased, it is not a valid objec- tion to his testimony that the facts which he states bear upon the issue whether or not the personal transaction in question took place, or upon the truth of the testimony by which such transaction is sought to be proved against him." And this is followed in Lewis v. Merritt, where the Court say: "It is difficult to lay down any general rule which shall cover all jsossible transactions, but it is safe to say when a party gives material evidence as to extraneous facts, which may or may not involve the negation or afiirmation of the existence of a personal transaction or communication with a deceased person, that the adverse party, although precluded from directly proving the existence of such communication or transaction, may give evidence of extraneous facts tending to controvert his adversary's proof, although those facts may also incidentally involve the negation or affirmation of such personal communications or transactions." Also in McKenna v. Bolger, where the Court say : " It is not the intention of the Code to prevent a party to a suit from testifying to any extrinsic fact that tends to contradict a wit- ness who swears to transactions or communications had between such party and a deceased pprson, even where he cannot directly testify that no such communication or trans- action was ever had. It was not the intention to prevent the 58 Competency and Peivilege. contradiction of a living witness, but to prevent a living party to a transaction or communication from testifying to it him- self when death has closed the mouth of the other party. So when a witness swears to a contract made by a defendant with a deceased party at a specified time and place, there is in our judgment nothing in the Code to prevent the defendant from testifying that at the time named he was in Europe or at some distant place rendering it impossible that the witness speaks the truth." So far in that direction. On the other hand, in Carney V. Wadhams, the action was brought to recover for services alleged to have been performed for the decedent, who was the father of the plaintiff. The defense was that the services were rendered gratuitousl3^ A third person, Mrs. Nicolls, having testified for the defendant, executor, to a conversation in her presence between plaintifE and decedent tending to show that there was no contract, the plaintifE was asked in his own behalf the following question : " Was there a time when Electa K. Is icolls was in the sitting-room and yon were in the bed-room with jouv father, when lie asked you why you didn't go homo, or in substance that, as testified to by Mrs. Nicolls ?" The Court at General Term enunciated the rule substantially as given above, and held that the plaintiff was incompetent to answer the question. CoDis Civ. Tko., § 829. 59 TITLE yill. "VVden such Testimony becomes Competent. A. Executoe, &c., examined in his own behalf. 1. Cases — Evidence competent. 2. Rule — Same transaction. 3. Kule—" Own behalf." 13. Testimony of lunatic ok decedent given. 1. Eule — In behalf of representative. 3. Books of account. 3. Eule — Contradicting decedent. 4. Rule — In same action. A. " Except -wiieee the executoe, administeatoe, suevivoe, committee, oe peeson so deeiving title or interest, is examined in his own behalf .... CONCEKNING THE same TRANSACTION OR COMMUNICATION." 1. Cases — Evidence competent. In the following cases tlie testimony of parties or interested persons was lield compe- tent, by rcKSon of tlie exception above stated. Smith V. Christopher, C Hun, 585. Clark V. Bruce, 13 Hun, 374. Markell v. Benson, 55 Hovf . Pr. 360. Sweet V. Low, 38 Hun, 433. Kelly ». Burroughs, 33 Hun, 349. Shepard v. Patterson, 3 Dem. 183. In Smith v. Christopher, the executor sought to establish his ownership of a $3,000 bond Avhicli had been found in the testator's trunk. The widow testified to her husband's declar- ation of ownership in himself. The executor then offered 60 Competency and Peivileqe. two written declarations, bearing the testator's signature, and tending to sustain tlie executor's title to tlie bond. Held competent; the Court saying : " If a pnrty in interest testifies to declarations of a deceased person, the prohibition contained in that section does not apjjly, and counter-declarations are admissible." In Markell v. Benson, the action was brought by an administrator against a physician for causing the death of the intestate. The plaintifE and his wife and daughter having been examined as witnesses for the plaintiff as to what occurred at the defendant's visit to the deceased, the defendant was held competent to testify to whatever took place at the same inter- view. 2. Rule. The fact that the executor, &c., has testified to one transaction, does not 'render a part'j competent to testify to any other transaction. Goodwin v. Ilirscli, 37 Super. 503. Chadwick ti. Fonner, 69 N. Y. 404. Hammond v. Schullze, 45 Super. 611. Pettit B. Geesler, 58 How. Pr. 195. Ward V. Plato, 23 Hun, 402. Trimmoi- x. Trimmer, 90 N. T. 673. In Goodwin v. Ilirsch, the action was by a surviving part- ner to recover for goods sold by the firm. The plaintiff testi- fied to a negotiation between himself and the defendant, and that the actual sale was consummated with his deceased part- ner. Then the defendant was called to testify to what took place between himself and the decedent, and the testimony was excluded. In Chadwick v. Fonner, the question was whether John- son, a plaintiff, agreed to pay Locke, the decedent through whom tlie defendants claimed, $30 per acre for certain land. Code Civ. Vro., § 829. 61 The defendants gave evidence of tlic declarations of Johnson that he iiad made such agreetncnt. Jolinson v/as then called by the plaintiffs and asked : " Did you ever agree to pay $30 an acre for the land ?" The Court say : " This was not rendered competent by any evidence given by either of tlie defendants. Tliey had simply testified to conversations witli Johnson. . . . But they did not testify to any transaction between Johnson and the deceased personally, and hence their evidence did not render him competent to sjjeak as a witness of any such transac- tion." In Pettit V. Geesler, the plaintiil, a surviving partner, having testified that a bill had not been paid, the defendant was held incompetent to testify that he paid the deceased partner. 3. Rule. ji. ])arty cannot, l/y examining Ms adversary as to a transaction with a deceased person, claim that the evi- dence thus elicited is gicen by the adversary " in his own behalf,'''' and that therefore he may contradict him. Corning v. Vfalker, 28 Hun, 435; 100 N. Y. 547. E. " Or the testimony of tub lunatic on deceased pekson IS given in evidence, concerning the same transac- tion or communication." 1. Rule. The test'iinony must have been off ered in behalf of the party claiming under the deceased person or lunat'ic. A party cannot put in evidence the statement of a deceased person, for the purpose of making himself compe- tent to contradict it. Miller v. Adkin3, 9 Hun, 9. 62 Competency and Fuivilege. Nor can lie, by offering letters written by himself to a deceased person, containing alleged statements of the deceased person to the party, open the door for his own testimony in regard to the subject of the statements. Farrell v. Krum, 17 "W. Dig. 471. Nor can he contradict evidence given by his adversary's witness as to a transaction with a deceased person, which he drew ont on cross-examination (under certain circumstances). Corning v. Wallier, 2 East. Eep. 824. 2. Books of account of decedent. In the case of Benjamin V. Dlmmick, 4 E,edf. 7, it was held that a testator's books of account, introduced in evidence by the executors upon their accounting, are not the testimony of the deceased within this exception, so as to open the door for the legatee to testify. In Marsh v. Brown, 18 Ilun, 319, the court took a directly opposite view. Neither of these cases appears to have been ruled upon or cited. 3. Eule. Where testimony cf the deceased plaintiff given upon a former trial is read i^i he half of his representative at the second trial, the defendant may contradict, coined or svp- jplant tlie same, as to all that tooh place at the interview in qxiestion. IJobbins v. Pultzs, 48 Super. 510. Potts V. Mayer, 86 N. Y. 302. 4. Eule. Tlie testimony of a deceased person in another action hrought upon another cause of action, does not rendur evidence competent within this exception. Wood V. Holmes, 10 "W. Dig. 471. CoDK Civ. Peo., § 829. 63 TITLE IX. Miscellaneous Adjudications. 1. Rule — Death of party after examination before trii.I. 2. Rale — Same, during trial. S. Rule — Whole transaction on cross-examination. 4. Rule — Evidence of deceased witness oa former trial. 5. Rule — Burden of proving incompetency. G. Rule — Oross-examinalion as to transaction. 7. Rule — Proof inferentially. 8. Strictness of construction. 0. Rule — Disregarding error. 1. E,Til3. Both jparties having "been examined Tjef ore trial upon stipulation^ and one having afterward died, the depo- sitian of the other is competent vpon the trial, although it relate to personal transactions xclth the deceased. Rice V. Motley, 24 Ilun, 143. McDonald o. Woodbury, 30 Ilun, 35. 2. Rule. The death of one party during the trial does not necessitate striking out the testimony of the other party previ- ously taTcen as to transactions with the deceased. Tlie disqualification depends entirely on the facts existing ■when tlie testimony is given, not npon any change subse- quently occurring. Comins v. Iletfield, 80 N. Y. 2G1. 3. Rule. Where a party is called as a witness hythe oppo- site party and examined as to transactions with a deceased person, he tnay on cross- examination give the whole transac- tion. Merritt v. Campbell, 70 N. Y. 025. 64 Competency and Fkitilege. 4. Eule. The evidence given hj a deceased witness upon a former trial is inadmissible if he would he incompetent to testify if living. Eaton v.. Alger, 47 N. Y. 345. 5. Rule. The hurden of proving the incompetency of a wUneits rests upon the party ohjeoting, and if the incompe- tency does not appear from the question, nor from the other facts proved upon the trial, the question should he allowed. Steele ii. Ward, 30 Hun, 555. 6. Eule. Tf testimony incompetent under this section is received against the objection of the opposite party, the latter may cross examine as to the transaction. White V. White, 16 W. Dig. 45. 7. Rule. A fact that cannot he proved hy a party or interested person directly, cannot he established inferentially from his testimony. Giey v. Grey, 47 N. Y. 553. jVIcOdtter V. Lawrence, 4 Hun, 107. Jolinson V. Spies, 5 Iliin, 468. Jacques v. Elmore, 7 liun, 675. Burnett V. Noble, 5 Uerlf. 69. Fisher V. Verplunek, 17 tjun, 150. 8. Strictness of Construction. A question lias often arisen as to the strictness with wliich § 829 should be con- strued. In one dass of cases it has been held that if persona whose testimony is offered arc clearly within the reason and Code Civ. Pko., § 829. 65 spirit of tlie law, it is sufficient to exclude tlieir testimony. Such are Dewey v. Qoodenough, 56 Barb. 54. Mattoon ». Young, 45 N. Y. 696. Timon «. ClafiEy, 45 Barb. 438. Van Tuyl v. Vaa Tuyl, 57 Bavb. 235. Howell «. Taylor, 11 Hun, 314. Andrews ». Nat. Bk., 7 Hun, 20. Scboonmaker ». Wolford, 30 Hun, 160. While in another class of cases it is held that it is not enough that a case be within the spirit, it must be within the letter of the statute. Lobdell V. Lobdell, 36 N. Y. 837. Matter of I,e Baron, 67 How. Pr. 848. Severn v. Nat. State Bank, 18 Hun, 238. 9. Rule. An error in receiving evidence incompetent under § 82S, if properly excepted to, can he disregarded only wJien it can he seen that it did no harm. Schoonmaker v. Wolford, 30 Hun, 166. Hobart v. Hobart, 63 N. Y. 80. Foote v. Beecher, 78 N. Y. 155. TITLE X. How THE Objection may be Taken. 1. Rule — General objection before proof. 2. Rule — Renewing objection. 3. Rule — Striking out. 4. General objection. 5. Rule— Form of objection. 66 Competency and Peivilege. 1. Rule. A general objection to the witness, under § 829, taken before any testimony is offered which would be incom- petent under that section, is too general and is invalid. Card V. Card, 39 N. Y. 317. Hoar V. Hoar, 23 Hun, 33. Ham V. Van Orden, 84 N. Y. 257. Sanford ». Ellitliorp, 95 N. Y. 48. Kiggs V. Am. Home Mis. Soc, 35 Hun, 656. 3. Rule. If objection be once properly made to testimony, as incompetent under this section, it is not necessary to renew the objection and exception each time similar testimony is offered by the same witness, or others having the same relation to the deceased. Hobart ». Hobart, 03 K Y. 80. Schoonmaker v. "Wolford, 20 Hun, 160. 3. Rule. If the objection be not made at the time the evi- dence is offered, the incompetent evidence may be afterward striclcerb out in the discretion of the court, if the omission be shown to have been from mistake or inadvertence. Miller v. Montgomery, 78 N. Y. 282. Matter of Burlie, 5 Redf. 369. 4. General objection. la Toolcy v. Bacon, 70 N. Y. 3i, a general objection to tlio reception of testimony was held suf- ficient where it appeared that the testimony was incompetent, npon the ground that where evidence is exehided upon a mere general objection, the ruling will be upheld upon appeal, if any ground in fact existed for the exclusion. And in Mulqueen v. Duffy, 6 Ilun, 290, where it appeared that the evidence was legally improper, and the objection to it could Code Civ. Peo., § 829. 67 not liavo been removed if the attention of tlie party offering it had been culled to tlie particular objection. On the other hand, in Sonierville v. Crook, 9 Hun, 264, a general objection vas held insufficient ; and in Stevens v. Brennan, 79 N. Y. 254, such an objection was held insuffi- cient, the Court saying : " The general objection could only be considered as applying to the competency or materiality of the evidence, and not to the competency of the witness to testify upon the subject." 5. Eule. Ji is sufficient to object to the testimony on the ground that it relates to personal transactions with the deceased iy an interested witness, without referring to the section of the Code. Sanford v. ElUlliorp, 95 N. Y. 48. CHAPTEE III. TESTIMONY OF HUSBAND AND WIFE. TITLE I. Peovisions of the Codss. 1. Generally competent; Code Civ. Pro. § 82S. 2. On question of adultery; id. § 831. 3. Confidential communication ; id. 4. Actions for crim. con. ; id. 5. In criminal actions, Penal Code, § 715. 1. Generally competent. " Except as otherwise specially prescribed in this title, a person shall not be excluded or excused from being a witness . . . because ... he or she is . . . the husband or wife of a party thereto, or of a person in whose behalf an action or special proceeding is brought, prosecuted, opposed or defended." Code Civ. Pro. § 838. 2. Upon question of adultery. " A husband or w'fe is not competent to testify against the other upon the trial of an action, or the hearing upon the merits of a special proceeding founded upon an allegation of adultery, except to prove the Code Civ. Pro., part of § 831. Husband and Wife. 69 3. Confidential communication. " A linsband or wife shall not be compelled, or without the consent of the other, if liv- ing, allowed, to disclose a confidential communication, made by one to the other during the marriage." Code Civ. Pro., part of § 831. 4. In action for crim. con. " In an action for criminal conversation, the plaintiff's wife is not a competent witness for the plaintiff, but she is a competent witness for the defendant, as to any matter in controversy ; except that she cannot, without the plaintiff's consent, disclose any confiden- tial communication had or made between herself and the plaintiff." Code Civ. Pro., part of § 831. 5. In criminal actions. " The husband or wife of a person indicted or accused of a crime is in all cases a competent witness on the examination or trial of such person ; but neither husband nor wife can be compelled to disclose a con- fidential communication made by one to the other during their marriage." Penal Code, § 715. TITLE II. Pkioe to the Present Codes. 1. At common law. 2. Under Code of Procedure. 3. Statutes prior to present Codes. 4. Wife ■when competent against husband. "0 Competency and Privilege. 1. At common law. Under tlio common law, husband and wife could not be witnesses for or against each other. Tlie first branch was based entirely on interest ; the latter on interest and public policy. ' ' If they (husband and wife) swear for each other, they are not believed, because their interests are absolutely the same, and, therefore, they can gain no more credit when they attest for each other, than when a man attests for himself, and it would be veiy hard if a wife should be allowed as evi- dence against her husband, when she cannot attest for him. Such a law would occasion implacable quarrels and divisions, and destroy the very legal policy of marriage." Gilbert on Evidence, 252. Marsh ». Potter, 30 Barb. 506. 2. Under Code of Procedure. The old Code'from the begin- ning provided that no person not a party, offered as a witness, should be excluded by reason of his interest in the event of the action (§§ 398, 399). Also, that a yarty might be exam- ined at the instance of the adverse party (§ 390). Yet, in Erwiu v. Smaller, 2 Sandf. E.3i0,and Pillow and wife V. Bushnell, 4 How. Pr. 9 ; 5 Barb. 156, both subsequent to the enactment of the Code of Procedure, it was held in the one case that a wife not a party, and in the other that the wife a party, while coneededly within the letter of the Code, was still incompetent against the husband on grounds of pub- lic policy. By the amendments of 1857 and 1800, a party was made " competent in his own behalf, or in behalf of any other jDarty, the same as any other witness." As the Court say in Soutliwiek v. Southwick, 49 N. T. 510 : " It was admitted in many of these decisions (those fol- lowing the above amendments of the Code), that the letter of Husband and "Wife. 71 the sections of the Code extended to and clearly embraced married persons when they were parties. But the Courts, venerating the common law rule which prevented mai-ried per- sons being witnesses for or against each other, save in very exceptional cases, deemed it requisite that the legislature should, more explicitly than it had done in those sections, express an intention to abrogate that rule, before the judiciary should declare that it was broken. The decisions were put, not upon the lack of literal force in the statute, but in a reluctance to find in the words the intent to invade a rule so ancient and so thoroughly founded.' In 1860, Mr. Justice James, in the elaborate opinion in Marsh v. Potter, after a careful review of the common law and statutory adjudications both in England and this country, and of the cases decided in this state under the Code, said : " I am therefore of the opinion that under the Code, as it now reads, husband and wife are competent witnesses in their own behalf, when co-plaintiffs or co-defendants; and in like cases also competent witnesses for each other ; that in actions between one of them and a third person, the one is not a com^ petent witness for or against the other ; and that the law is untouched by the Code as to confidential communications or matters between them." The particular point in controversy there was the compe- tency of husband and wife in their own behalf when joined as parties ; and in Birdsall v. Patterson, 51 JST. Y. 43, it was also held that since the amendment of 1860 the husband was competent as a witness pn behalf of his wife where they were co-plaintiff? 3. Statutes prior to present Codes. The three following acts comprise all the legislation directly affecting this subject prior to the present Codes : 72 Competency and Pbitilege. a. Laws of 1867, Chapter 887. Section 1. "la any trial or inquiry in any suit, action or proceeding iu any Court, or before any person having, by law or consent of parties, authority to examine witnesses or hear evidence, the husband or wife of any party thereto, or of any person in whose behalf any such suit, action or proceeding is brought, prosecuted, opposed or defended, shall, except as hereinafter stated, be competent and compellable to give evidence, the same as any other witness, on behalf of any party to such suit, action or proceeding. " § 2. Nothing herein contained shall render any husband or wife competent or compellable to give evidence for or against the other, in any criminal action or proceeding (except to prove the fact of marriage, in case of bigamy), or in any action or proceeding instituted in consequence of adultery, or in any action or proceeding for divorce on account of adul- tery (except to prove the fact of marriage), or in any action or pi'oceeding for or on account of criminal conversation. " § 3. No husband or wife shall be compellable to disclose any confidential communication made by one to the other dur- ing their marriage." b. Laws of 1876, Chapter 426. " In an action for crim- inal conversation, the wife of the plaintiii may be a witness for the defendant, and shall be competent to give evidence the same as any other witness, on behalf of such defendant, except that she shall not be permitted to disclose any confi- dential communication had or made between herself and her husband." c. Laws of 1876, Chapter 182. " In all criminal trials and examinations before trial, a husband or wife may be examined as a witness in behalf of the other, but upon no Husband and Wife. 73 sucli trial or examination shall a husband or wife be com- pelled to testify against the other." Under this act it was held in People v. Houghton, 24 Hun, 501, that a wife, though she desired to, was not compe- tent to testify against her husband upon an indictment for bigamy ; that only the first clause of the act was afiirmative, and that nothing would be implied of an afiBrmative character in the latter clause to give it force in derogation of the com- mon law. And the same doctrine was held in People v. Hovey, 29 Hun, 382. 4. Cases in which wife competent against husband. In cer- tain special cases the testimony of the wife has always beea competent against the husband. Among these are, a. Criminal actions, where the husband is charged with committing or threatening injury to her person. People V. Carpenter, 9 Barb. 580. People V. Northrup, 50 Barb. 147. People V. Fitzpatrick, 5 Park. 26. In People v. Fitzpatrick it was held that the district attorney could not be compelled to call the wife, so that the husband might have the opportunity to cross-examine her ; but in case the prosecution failed to call her the defense might do so. In People v. Carpenter it was held that the wife would not be competent against the husband upon an indictment charging him with subornation of perjury with intent to wrong her. b. As analogous to the above. On habeas corptis by the husband to compel return of wife and child, the wife might 74 Competency and Peivilege. testify to acts of cruelty by the husband, justifying her sepa- ration and refusal to return. t People V. Mercein, 8 Paige, 46. TITLE III. Geneeal Competenct of. Husband and "Wife. 1. Code Civ. Pro. § 838., 8. Under Act of 1867. 3. Penal Code, § 715. 4. Prior to Penal Code. 1. Code Civ. Pro. § 828. "Except as other-wise specially prescribed in this title, a person shall not be excluded or excused from being a witness . . ■. because ... he or she is . . . the husband or wife of a party thereto, or of a person in whose behalf an action or special proceeding is brought, pros- ecuted, opposed or defended." 2. Under Act of 1867. The above provision of the Code of Civil Procedure is in effect identical with § 1 of the Act of 1867 (chap. 887), under which it was held that : a. Where a wife sues her husband to recover moneys alleged to have been received by him as her agent, he may testify in his own behalf. South-wick V. Southwick, 49 N. Y. 510. b. In a suit for limited divorce, husband and wife are, it seems, as competent to give evidence in their own behalf as any other witnesses. Carey v. Carey, 4 Daly, 370. Husband and "Wife. 75 3. Penal Cods, § 715. " The husband or wife of a person in-dieted or accused of a crime, is in all cases a competent wit- ness; but, &c." 4. Prior to Penal Code. The statute of 1867 referred only to civil actions and proceedings ; and until the enactment of chapter 182 of the Laws of 1876 the wife was at least not dornpellahle, and until the Penal Code was not competent, to testify against her husband in a criminal case. Wilke V. The People, 53 N. Y. 535. Foster's Case, 13 Abb. K. S. 373, note. People V. Crandou, 17 Hun, 490. People v. Houghton, 34 Hun, 501. TITLE IV. In Actions fok Adulteey. "1. Code Civ. Pro. § 831. 3. Act of 1867, and cases cited. 3. Supreme Court Rule 73. 4. Chamberlain v. People. 5. Rule — To prove former marriage. 1. Code Civ. Pro. § 831. "A husband or a ^\Ife is not competent to testify against the other upon the trial of an action, or the hearing upon the merits of a special proceeding, founded upon an allegation of adultery, except to prove the mari'iage." 2. Act of 1867, Cases. The same provision was contained in the Act of 1867, under which were decided Roe V. Roe, 40 Super. 1. Hennessey v. Hennessey, 58 How. Pr. 804. 76 Competency and Teivilege. 3. Rule 73. This section must be construed in connection with Supreme Court Eule 73 of 1884, -which provides that " in case of reference (of action for divorce), the plaintiff shall be specifically examined on oath," as to each of the particulars named in said rule. 4. In Chamberlain v. The People, 23 N. Y. 85, decided in 1861, it had been held that a husband was, under the amend- ment of the Code in 1857, competent in his own behalf to prove his wife's guilt of adultery. 5. Rule. The defendant in a divorce case cannot testify to the fact of a former marriage, tending to prove the later one with thejflaintiff void. Finn ». Finn, 13 Hun, 339. Though he would have been competent if tliat marriage had been void. Dennis v. Crittenden, 43 N. Y. 543. TITLE V. Confidential Communications. 1. Code Civ. Pro. § 831. 2. Penal Code, § 715. 3. Rule — Applies after dissolution of marriage. 4. Rule — Not to communication at time of marriage. 1. Code Civ. Pro. § 831. "A husband or wife shall not be compelled, or without consent of the other, if living, allowed, to disclose a confidential communication made by the one to the other during the marriage." Husband and "Wife. 77 2. Penal Code, § 715. " But neither husband nor wife can be compelled to disclose a confidential communication made by one to the other during their marriage." This portion of the common law rule has from motives of public policy been carefully preserved through all the changes wrought by legislation. 3. Rule. These statutes apply even after the dissolution of the ma7'riage contract. Chamberlain v. People, 23 N. Y. 89. Barnes v. Caraack, 1 Barb. 393. 1 Greenl. Ev. §§ 837, 838. RatcliflE V. Wales, 1 Hill, 63. 4. Rule. But do not apply to communications made at the very time of forming the marriage. Van Tuyl v. Van Tuyl, 57 Barb. 239. People «. Bartholf, 24 Hun, 273. TITLE YI. In Actions toe Ceim. Con. 1. Code Civ. Pro. § 831. 2. Prior to Code. 3. Rule — Competency of divorced wife. 1. Code Civ. Pro. § 831. In an action for criminal conver- sation, the plaintiff's wife is not a competent witness for the plaintiff, but she is a competent witness for the defendant, as to any matter in controversy, except, &c. 78 Competency and Privilege. 2. Prior to Code. Tlie latter clause is substantially identi- cal with Laws of lS7o, cliap. 426. The former clause simply enacts the common law rule. 2 Abb. Ct. App. Dec. 363. 3. Rule. The divorced wife of tlie plaintiff , in an action for crim. con., is a comjoetent witness hoth to prove marriage and the offense. Eatcliff V. "Wales, 1 Hill, 63. Wottrich v. Freeman, 71 N. Y. 601. TITLE yiL In Ckiminal Actions. 1. Penal Code, § 715. 2. Adjudications. 1. Penal Code, § 715. " The husband or wife of a person indicted or accused of a crane is in all cases a competent wit- ness on the examination or trial of such pereon ; but neither husband nor wife can bo compelled to disclose a confidential communication made by one to the other during their mar- riage." 2. Adjudications. Under this section lias been decided the case of People v. Petmecky, 2 JST. Y. Crim. R. 450 (affirmed 99 N. Y. 415, where, however, this point was not touched upon), distinguishing People v. Ilovey, 29 Hun, 3S2, as hav- ing arisen before the Penal Code went into effect. CHAPTER. lY. TESTIMONY OF PERS02^S CONVICTED OF CRIME. 1. Code Civ. Pro. § 833. 2. Penal Code, § 714. 3. Purpose of the enactments. 4. Rule under Revised Statutes. 5. Same as to perjurers. 6. Conviction for misdemeanor. 7. Conviction in this State. 8. Conviction and sentence. 9. Nothing short of conviction. 10. Formerly applied to civil actions only. 11. !A.djudicati()us. 1. Code Civ. Pro. § 832. " A person wlio lias been convic- ted of a crime or misdomeauor is, notwithstanding, a compe- tent witness in a civil or criminal action or special proceeding ; but tlie conviction may be proved, for the purpose of affect- ing the weight of his testimony, either by the record, or by his cross-examination, upon which he must answfer any ques- tion relevant to that inquiry ; and the party cross-examining him is not concluded by his answer to such a question." 2. Penal Code, § 714. " A person heretofore or hereafter convicted of any crime is, notwithstanding, a competent wit- ness, in any cause or proceeding, civil or criminal ; but the conviction may be proved for the purpose of affecting the weight of his testimony, either by the record, or by his cross- examination, upon which he must answer any proper question 80 Competency and Fkivilege. relevant to that inquiry ; and tlie party cross-examining is not concluded by the answer to such question." 3. Purpose of the enactments. In his note to § 832, Code Civ. Pro., Mr. Theoop says : " This section abolishes a relic of the old rules disqualifying witnesses, which is contrary to the spirit of modern legislation upon the subject in this state, and has been abolished in England for fully a third of a century. The settled theory in regard to the competency of the wit- nesses now is, that the court or jury should have all possible light thrown upon the facts, and judge for itself what credence to give to the evidence offered. The exclusion of felons as witnesses has been justified by the argument (1) that their testimony is wholly unreliable and unsafe, and (2) that it is a proper punishment for their crimes. Upon neither theory can it be justified." 4. Rule under Revised Statutes. The law which regulated this subject prior to the present Codes was found in 2 K. S. 701, § 23, as follows : " No person sentenced upon a conviction for felony shall be competent to testify, in any cause, matter or proceeding, civil or criminal, unless he be pardoned by the governor or by the legislature, except in the cases specially provided by law ; but no sentence upon a conviction for any offense other than a felony shall disqualify, or render a per- son incompetent to testify in any cause, matter or proceeding, civil or criminal." 5. Rule as to perjurers. Persons convicted of perjury and subornation of perjury could not be received as witnesses until such judgment was reversed. In such cases a pardon was not sufficient to restore competency. 3 R. S. 681, §§ 1, 4. Houglitaling v. Keldeiiiouse, 1 Park. 241. Holridge v. Gillespie, 3 J, Ch. 30. Peesons Convicted of Ceime. 81 6. Misdemeanor. A conviction and sentence for a misde- meanor never disqualified, but only for a felony. Accordingly, a conviction for petit larceny, that not being a felony, did not disqualify. Shay V. People, 23 N. Y. 317. But always, both by common law and under the Kevised Statutes, as well as now, it could be shown for the purpose of affecting the credibility of the witness. Carpenter v. Nixon, 5 Ilill, 300. Shay V. People, supra. Newcomb «. Griswold, 24 N. T. 298. Gardner v. Bartholomew, 40 Barb. 335. People V. Burns, 33 Hun, 296. People V. Schewe, 39 Hun, 133. People V. Hovey, 39 Hun, 383. 7. Conviction must have been in this State. It may also be observed that under the former rule the conviction and sen- tence that disqualified must have been in this State. National Trust Co. v. Roberts, 43 Super. 100. ' Cole V. Cole, 50 How. Pr. 59. Though the conviction that now discredits may have been in the United States Court. People V. Noelke, 94 N. Y. 137. 8. Conviction and sentence. A question has arisen upon the language of the Codes. The Revised Statutes made both conviction and sentence necessary to disqualify, while the Codes provide that a convicted person is competent. It was claimed that under the Codes a person sentenced after convic- tion was still incompetent. The Courts, however, have held 82 Competency and Pkivlege. that the Codes have superseded the Statutes ; that conviction in the Codes includes sentence, and that a person convicted and sentenced is competent. Sacia «. Decker, 1 Civ. Pro. R. 47. People V. McGloin, 91 N. Y. 341. 9. NotMng short of conviction. It should also be observed that nothing short of conviction is competent to be shown within the meaning of either Kevised Statutes or Codes. Thus it has been held incompetent to inquire if a witness has been arrested on a charge of bigamy, People 0. Crapo, 76 N. T. 288. Or how many times he has been arrested, People 0. Brown, 73 N. Y. 571. Or if be bas been indicted. Ryan v. People, 79 N. Y. 593. 10. Formerly civil actions only. Prior to its amendment in 1879, § 832 applied only to civil actions and proceedings, and it was so held in Perry v. People, 86 N. Y. 353. 11. Adjudications. The present statutes have been applied in the following cases, in addition to those already cited. People V. Kelly, 35 Hun, 304. People v. McGloin, 1 N. Y. Crim. R. 105. , CHAPTEE V. TESTIMONY TENDING TO ESTABLISH CIVIL OR CRIMINAL LIABILITY. 1. Code Civ. Pro. § 837. 2. Former enactments. 3. In criminal practice. 4. In examination before trial. 5. Showing civil liability. 6. Tending to criminate. 7. As affecting redibility. 8. Tending to disgrace. 9. Privilege personal to witness. 10. Explanation of facts voluntarily stated. 11. How far witness to judge of effect. 1. Code Civ. Pro. § 837. " A competent witness sliall not be excused from answering a relevant question, on the gound only that the answer may tend to establish the fact that he owes a debt, or is otherwise subject to a civil suit. But this provision does not require a witness to give an answer which Avill tend to accuse himself of a crime or misdemeanor, or to expose him to a penalty or forfeiture ; nor does it vary any other rule respecting the examination of a witness." 2. Former enactments. This is substantially a re-enactment of 2 E. S. 405, § 71, which in turn was equivalent to 46 Geo. III. c. 37. 8i Competency and Peivilege. 3. In criminal practice. Although this rule of evidence ia found in the Code of Civil Procedure only, the Criminal Codes containing no corresponding one, yet it is made applic- able to criminal actions by the general provision of § 392 of the Code of Criminal Procedure, except as limited by the sec- tions of the Penal Code to be considered in the next chapter. 4. In examination before trial. An attempt has sometimes been made to obtain testimony under the provisions of the Code for examination of a party before trial, which would be privileged under the above section ; but it has never been allowed. Phoenix v. Dupuy, 3 Abb. N. C. 146. Buibank v. Reed, 11 W. Dig. 576. Yamato Trading Co. v. Brown, 27 Hun, 248. 5. Showing civil liability. A careful resume of old author- ities to the point that a witness is not excused from giving evidence that tends to establish him a debtor is to be found in the opinion of Chancellor Walwoktii in Matter of Kip, 1 Paige, 601. Other decisions upon this branch are Stewart v. Turner, 3 Edw. Cli. 458. Taylor v. Jennings, 7 Rob. 581. 6. Tending to criminate. It will be observed that it is now, as it always has been, sufficient 'to make the privilege available if the proposed testimony would tend to criminate, &c. Only a few of the many authorities upon this subject need be cited. Cloyes V. Thayer, 3 Hill, 564. Henry v. Bank, 1 N. Y. 83. Byass v. Sullivan, 21 How. Pr. 50. Ex parte Tappan, 9 How. Pr. 394. Civil oe Criminal Liability.. 85 7. As affecting credibility. This rule is not to be construed as militating against the right to cross-examine a witness as to his previous conviction of crime, for the purpose of affecting his credibility. 8. Tending to disgrace. The Codes say nothing of testi- mony tending to disgrace the vritness. As to this, it was held in Taylor v. Jennings, 7 Eob. 581, that if the testimony is material to the issue, a witness can- not refuse to answer on the ground that" his testimony would tend to disgrace him. And in Lohman v. People, 1 !N". Y. 379, that unless the evidence would bear directly upon the issue the witness would be privileged from answering a question when the answer would tend to disgrace him. In later cases, however, it is held to be in the discretion of the court to admit or reject such questions on cross-examin- ation, if immaterial to the issue. Great W. T. Co. e. Loomis, 33 H. Y. 127. People ex rel. Phelps v. Oyer and Terminer, 83. ff. Y. 436. 9. Privilege personal to witness. The objection is personal to the witness. It is not available to the pubjic prosecutor. "Ward V. People, 6 Hill, 144. Or to any other party. People v. Carroll, 3 Park. 73. But where the party himself is the witness his counsel may take the objection for him. People «. Brown, 73 N. Y. 571. 86 Competency and Peitilege. 10. Necessary to understand. It is also establislied in Peo- ple V. Carroll, supra, that no witness is privileged under this rule, if the answer be necessary to a full understanding of the facts already voluntarily stated. In this connection see Youngs V. Youngs, 5 Eedf. 505. in which SurrogateRoLLiNSreviews many English and Ameri- can cases upon this question. 11. How far witness to judge of effect. Another important inquiry was also raised in the case of Youngs v. Youngs, supra, namely, how far the witness is to be his own judge of the efEect of the proposed testimony. After quoting with approval from the opinion of Ch. J. CocKBUEN in Eegina v. Boyes, 1 Best & Smith, 329, the fol- lowing : " Upon a review. of the authorities, we are clearly of the opinion that, to entitle a party called as a witness to the privilege of silence, the Court must see, from the circumstan- ces of the case, and the nature of the evidence which the wit- ness is called to give, that there is reasonable ground to appre- hend danger to the witness from his being compelled to answer," the Surrogate says : " It seems to me that, in this matter, there are two extremes, which ought equally to be avoided : First. That of requiring from a witness, who has honestly claimed the privi- lege, any explanation whatever of his reason for refusing to answer, if the Court can see how such answer may fairly and reasonably tend to criminate him. Second. That of permit- ting a witness to interpose the shield of apprehended peril, as a protection against every question which he is disinclined to answer, although there may be nothing in the circumstances of the case which in the least suggests that such answers would bo frau£;ht witli danp-cv."' CIIAPTEK YI. v' TESTIMONY AGAINST CO-OFFENDERS. 1. Introductory. 3. Illegal sale of tlung iu action, Penal Code, § 143. 3. Duelling, Penal Code, § 241. 4. Gaming, Penal Code, § 343. 5. Crimes against Public Peace, Penal Code, § 469. , 6. Bribery, Penal Code, § 79. 7. Perjury, Penal Code, § 713. 1. Introductory. In criminal and quasi-criminal actions of certain kinds, it has been found necessary to so far limit the rule of privilege set forth in the last chapter, as to compel offenders to give testimony against their accomplices. The following provisions relate to this subject : 2. Illegal sale of thing in action. "K^o person shall be excused from testifying, in any civil action or legal proceeding, to any facts showing that a thing in action has been bought, sold or received contrary to law, upon the ground that his testimony might tend to convict him of a crime. But no evidence derived from the examination of such person shall be received against him upon a criminal prosecution." Penal Code, § 142. 3. Duelling. " A person offending against any provision of this chapter [making duelling a crime] is a competent wit- ness against any other person offending in the same transac- 88 Competency and Peitilege. tion, and must not be excused from testifying or answering any question, upon an investigation or trial for an offense under this chapter, upon the ground that his testimony miglit tend to convict him of a crime. But evidence given by a person so testifying cannot be received against him in any criminal action or proceeding." Penal Code, § 341. 4. Gaming. "No person shall be excused from glvijg testimony upon any investigation or proceeding for a violation of this chapter [against gaming], upon the ground that such testimony would tend to convict him of a crime : but such testimony cannot be received against him upon any criminal investigation or proceeding." Penal Code, § 342. 5> Crimes against Public Peace. " No person shall be excused from giving evidence upon an investigation or prose- cution for any of the offenses specified in this title [' Crimes against the Public Peace'], upon the ground that the evidence might tend to convict him of a crime. But such evidence shall not be received against him upon any criminal proceed- ing." Penal Code, § 469. 6. Bribery. In all the above ■ the witness is protected against the use of his evidence against himself. In one class of cases it has been found necessary to go far- ther, and absolutely protect the witness against punishment for the Crime. " A person offending against any provision of any fore- going sections of this Code relating to bribery is a competent witness against another person so offending, and may be Against Co- Offenders. 89 compelled to attend and testify upon any trial, hearing, pro- ceeding, or investigation, in the same manner as any other person. But tlie testimony so given shall not be used in any prosecution or proceeding, civil or criminal, against the per- son so testifying. A person so testifying to the giving of a bribe which has been accepted, shall not thereafter be liable to indictment, prosecution, or punishment for that bribery, and may plead or prove the giving of testimony accordingly, in bar of such an indictment or prosecution." Penal Code, § 70. 7. Perjury. All the above provisions are subject to the following general exception : " The sections of this Code which declare that evidence obtained upon the examination of a person as a witness shall not be received against him in a criminal proceeding, do not forbid such evidence being proved against such person upon any charge of perjury committed in such examination." Penal Code, § 713. . CHAPTER VII. TESTIMONY OF DEFENDANT IN CRIMINAL ACTIONS. 1. Code Crim. Pro. § 393. 3. Statute of 1869. 3. Criticism by Courts. 4. Rule — Subject to cross-examination. 5. People V. Crapo. 6. Rule — Credibility for jury. 7. Rule — Presumption from failure to rebut. 8. Rule — Error in charge. 1. Code Crim. Pro. § 393. " The defendant in all cases may testify as a witness in his own behalf, but his neglect or refusal to testify does not create any presumption against him." 2. Statute of 1869. Substantially the same rule had been enacted in 1869 (chap. 678), twelve years after the amendment of the Code which made parties to civil actions competent witnesses in their own behalf. 3. Criticism by Court. Much criticism arose concerning not merely the wisdom, but even the constitutionality of this statute ; it being claimed that it was at least indirectly obnox- ious to that clause of the State constitution which provides that, " No person shall be compelled in any criminal case to be a witness against himself." In Euloff V. People, 45 N. Y. at page 221, Judge Allt.?< Defendant in Ceiminal Actions. 91 says : " The act may bo regarded as of doubtful propriety, and many regard it as unwise, and as subjecting a person on trial to a severe if not cruel test." And in Connors v. People, 50 N . Y. at page 242, Chief Judge Chuecii says : " The point was not made that the whole act of 1869 was unconstitutional, and we are not, therefore, called upon to decide it, and we disclaim an intention to inti- mate an opinion in relation to it. The act is not regarded with much favor by the bench, bar, or the people, and whether by its terms it evades the constitutional provision, or in substance and practical effect violates it, is a question which will be considered when it is presented." So lately as 1884 the question arose in the court of appeals, whether this act was in conflict with § 6, art. 1, of the N. Y. State Constitution, which declares that no person shall " be compelled in any criminal case to be a witness against himself ; and the statute was held to be not un-constitutional, as being permissive and not compulsory. People V. Courtney, 94 N. Y; 490. The following principles have been established by the courts. 4. Rule. Where upon a criminal trial the prisoner offers himself as a witness, he is subject to the same rules upon cross-examination as any other witness. Fi-alich V. People, 65 Barb. 48. Brandon v. People, 42 N. Y. 265. People V. Casey, 72 N. Y. 393. In tlie two latter cases the proposed inquiry related to the past life of the witness, and was held proper as affecting credibility. 92 Competency and Pkitilege. 5. People V. Crapo. In a later case, however, it was held error, in cross-examining the defendant in an action for burglary and larceny, to allow him to be asked if he had not been arrested upon a charge of bigamy; upon the ground that it did not legitimately tend to impair the credibility of the witness. The Court there say : " The discretion which courts possess to permit questions of particular acts to be put to witnesses for the purpose of impairing credibility should be exercised with great caution when an accused person is a wit- ness on his own trial. He goes upon the stand under a cloud; he stands charged with a criminal offense, not only, but is under the strongest possible temptation to give evidence favorable to himself. Ilis evidence is therefore looked upon with suspicion and distrust, and if in addition to this he may be subjected to a cross-examination upon every incident of his life, and every charge of vice or crime which may have been made against him, and which have no bearing upon the charge for which he is being tried, he may be so prejudiced in the minds of the jury as frequently to induce them to con- vict upon evidence which otherwise would be deemed insufficient." People V. Crapo, 76 N. T. 288. 6. Rule. WJiere a defendant in a criminal action is examined in his own iehalf, the credit to which he is entitled is for the jury to consider. Newman v. People, 63 Barb. 630. Brandon n. People, 43 N. T. 265. Connors o. People, 50 N. Y. 240. People V. Moett, 23 Hun, 60. 7. Rule. Where a defendant in a criminal action is examined in his own hehalf, hut fails to give evidence in Defendant in Ckiminal Actions. 93 explanaiio7i and rebuttal of a fact which, if innocent, he could have explained, the same presumption arises from the failure, that would arise from a failure to give the explanation hy another witness, if in his power to so give it. Stover V. People, 56 N. Y. 315. 8. Rule. The Court has no right to allude in its charge to the fact that the defendant has not elected to testify in his own hehalf I hut the error is cured hy a subsequent instruc- tion that the jury should draw no inference from the fact. Rulofi ». People, 45 N. Y. 313. 94 COMPETEKCY ANU .PeIVILEGE. CHAPTER VIII. CONFESSIOI^S. 1. Code Crim. Pro. § 395. 2. Rule prior to the Code. 3. Ethical rule. 4. Purpose of the rule. 5. Adjudications under the Code. 6. Adjudications prior to the Code. 1. Code Crim. Pro. § 395. " A confession of a defendant, wliether in the course of judicial proceedings or to a private person, can be given in evidence against him, unless made under the influence of fear produced by threats, or unless made upon a stipulation of the district attorney, that he shall not be prosecuted therefor." The remainder of the section does not come within the scope of this book. 2. Prior to the Code, a rule of evidence was recognized upon tliis subject, which is stated as well as elsewhere, perhaps, in Ilendriekson v. People, 10 IS". Y. 13, at page 21, as follows : "All a party has said, which is relevant to the questions involved in the trial, is admissible in evidence against him. The exceptions to this rule are where the confession lias been drawn from the prisoner by means of a threat or a promise, or where it is not voluntary, because obtained compulsorily or by improper influence." It will be observed that while similar to the Code pro- Confessions. 95 vision, the old rule differs in an important particular ; it lacks, precision. In the words of the opinion in People v. Mondon, 38 Hun, at page 190, "The section (§ 395) was doubtless intended to make a definite and certain rule, where formerly, if the authorities were not conflicting, they were obscure, refined, and difficult to follow or distinguish," It can hardly serve any useful purpose, in view of the present plain and definite 'statutory provision, to discuss the older cases and the difficulties encountered in distinguishing " voluntary " from involuntary confessions and in deciding what constituted " improper influence." 3. Ethical question. No rule of evidence has probably been more sharply criticized upon ethical grounds than this ; not so much as to the admissibility of confessions against persons accused of crime, but rather as regards the methods permitted for obtaining the information. It must be admitted that in the use of this rule the moralist would find man}' instances where the end seems made to justify the means. "Improper influence" was never eagerly sought under the old rule, and has no place among the limitations of the Code. Accordingly it liappens that officers of the law, skilled in eliciting information, and zealous (the critics say) to secure conviction in any event, are permitted to use every form of art and artifice short of the prohibition of the statute. Thus an officer may purposely ply the suspected person with liquor. Jefferds v. People, 5 Park. Cr. 523. He may resort to all manner of deception ; Id. I'eople V. Wentz, 37 N. Y. 303. 96 Competency and Pbivilege. Even to the lengtli adopted in the recent Brooks murder trial at St. Louis, wliere the detective obtained conviction and iuiprisoiiinent of himself for a feigned crime, in order to become a follow-pi'isoner of the accused, for the purpose of winning his confidence. lie may promise collateral benefits. Cox V. People, 80 N. Y. 500. Or, under our Code, unless he be the district attorney, may promise even complete immunity. He may, •when bringing the accused from a distance, use his opportunity and professional skill to extract damaging statements or confession from his enforced companion. Cox V. People, supra. And that too though the arrest be illegal, without proper process or authority. Balbo V. People, 80 N. Y. 484. All these and a thousand other devices may be adopted, and the confession thus obtained be used as evidence against the person confessing. 4. Purpose of the rule. It is not intended to discuss ths question of ethics above alluded to and illustrated. In that connection, however, it may be stated (though the explana- tion can hardly be expected to silence the critics) that this principle of admitting confessions as evidence, wherever it is recognized either by rule or statute, is simply and purely a rule of evidence. Its sole purpose is the eliciting of truth. The limitations are aimed only at avoiding falsehood. Confessions elicited by threats producing fear, and those secured by actual promises of immunity by peraons supposed Confessions. 97 to liave autliority to make suob promises effectual, are univer- sally rejected, because courts and legislatures see that the truth cannot be expected in them. As was said in O'Brien v. People, 48 Barb. 280, " Confessions are excluded only when made under circumstances that tend to produce doubt as to their truth, arising from the operation of hope or fear in the njind of the prisoner." 5. Adjudications under the Code. Among the principal adjudications under § 395 are the following : People V. McGloin, 91 N. Y. 341. People V. Mondon, 38 Hun, 188. People V. McCallam, 3 N. Y. Cr. R. 189. People V. Chacon, 3 N. Y. Cr. R. 418. In People v. Mondon, it was held that the confession referred to in the section is not to be restricted to admissions of guilt alone, but is intended to include statements as to the conduct and declarations of the prisoner at and about the time of the commission of the crime. In People v. McCallam, it was held that an explanation of suspicious circumstances in connection with a crime, made in the interest of the accused, is not a confession ; also that the statement by an officer to the accused person, that " they had found enough to convict her; she might as well own up," was not a threat; citing as a precedent People v. Wcntz, 37 N. Y. 303, where the language was that the prisoner " was in a bad fix and had got cauglit at last." 6. Adjudications prior to the Code. The following prin- ciples would probably still be recognized and followed : a. The fact may be proven that a person was silent at a time when declarations of his guilt were made in his presence and when it would have been proper for him to speak. Kelley v. People, 55 N. Y. 505. 7 98 Competency and Peitilege. b. The officer may testify ^o the fact of a statement or confession, even if improperly obtained, without giving the statement, and then testify to what he did in consequence of it. Duffy V. People, 36 JST. Y. 588. c. In the absence of evidence of threats or promises making the confession incompetent, it is proper to leave the question of their existence to the jury, and charge them to exchide the evidence if they believe there were threats or inducements. "Woodford v. People, 63 N. Y. 117. CHAPTEE IX. PRIVILEGED PROFESSIONAL COMMUNICATIONS. TITLE I. Feovisions of the Code. 1. Clergyman, Code Civ. Pro. § 833. 2. Physician, Code Civ. Pro. § 884. 3. Attorney, Code Civ. Pro. § 835. 4. Application, Code Civ. Pro. § 886. 1. Clergyman. "A clergyman, or oilier minister of any religion, shall not be allowed to disclose a confession made to Lim, in his professional character, in the course of discipline enjoined by the rules or practice of the religious body to which he belongs." Code Civ. Pro. § 833. 2. Physician. "A person duly authorized to practice physic or surgery shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity." Code Civ. Pro. § 834. 3. Attorney. " An attorney or counsellor at law shall not be allowed to disclose a communication made by his client to 100 Competency and Peitilege Lim, or his advice given tliereon, in the course of his profes- sional employment." Code Civ. Pro. § 835. 4. Application. " The last three sections apply to every examination of a person as a witness, unless the provisions thereof are expressly waived by the person confessing, the patient or the client." Code Civ. Pro. § 836. TITLE II. Priest and Penitent. 1. At Common Law. 3. Provision of R. S. 3. Subsequent cases. 1. At Common Law. It has been said that the Roman Catholic Church, in forbidding its clergy to disclose the secrets of the confessional, affords them an avenue of escape by reasoning that " the confession is made not so much to the priest as to the Deit}', whom he represents ; and that therefore the priest, when appearing as a witness in lis pri- vate character, may lawfully swear that he knows nothing of the subject." Some such loop-hole, it would seem, was necessary within the jurisdiction of the common law, which recognized no distinction between clergy and laity ; but decreed that all confessions and other matters not confided to legal counsel must be disclosed when required for the purposes of justice. Prior to the revision of the Statutes, it had been decided in People v. Phillips, 1 Southwestern Law Journal, 90, that a Koman Catholic priest was not compellable to testify as a Pkofessional Oohmunications. 101 witness to matters wliicli had been confided to liim under the seal of confession. And on tlie contrary, in Smith's Case, 2 C. H. Kec. 77, that a confession made to a Protestant clergyman, simply as a spiritual adviser, was not privileged. 2. 2 R. S. 406, § 72; " No minister of the gospel, or priest of any denomination whatsoever, shall be allowed to disclose any confessions made to him in his professional character, in the course of discipline enjoined by the rules or practice of such denomination." 3. Late adjudication. The only decision under the statute or under the equivalent provision of the Code, so far as I have found, is that of People v. Gates, 13 "Wend. 311, where a clergyman, to whom the accused had made an admission, and who testified that it was not made to him as a clergyman, was held competent to testify to the admission. TITLE III. Physician and Patient. A. Development. 1. At Common Law. 2. By Revised Statutes. 3. In criminal actions. 4. Revisers' note. 5. Early decisions. 6. Cases classified. B. Infoemation. 1. People V. Stout — Rule. 3. Edington v. Mut. Life Ins. Co. 3. Annie A. Grattan Case, 102 Competency and Pbivilege. 0. Peofessional Capacity. 1. Introductory. 2. Rule — Employment or payment. 3. Rule — Piesciiption not necessary. 4. Rule — Interview not private. 5. Hewitt V. Prime. 6. Edington v. ^tna Life Ing. Co. D. Hecessaky, &C. 1. Hewitt ». Prime. 2. Sloan v. N. Y. C. R. R. Co. 3. Peter Grattan v. Mut. Life Ins. Co. E. Wno MAY OBJECT. 1. General rule. 2. Rule — Witness cannot. 3. People 1]. Murpliy. A. Development. 1. At Common Law, the information derived bj physi- cians in their professional relations with patients was not privileged from disclosure. The only privileged communica- tions in this respect were between attorney and cli People V. Stout, 3 Park. Cr. 670. Allen v. Pub. Admr., 1 Bradf. 221. In Wilson v. Kastall, 4 Term E. 756, Mr. Justice Butler said there were cases in which it was much to be lamented that the law of privilege was not extended to those in which medical persons were obliged to disclose the information which they acquired by attending in a professional character. 2. By Revised Statutes. Upon the revision of the Statutes of this State, in 1828, this omission in the common law was noticed and the following section introduced : "No person duly authorized to practice physic and Professional Communioations. 103 Burgery shall be allowed to disclose any information wliich he may liave acquired in attending any patient in a professional cliaractcr, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any f.ct for him as a surgeon." .2 R. S. 406, § 73. Under this was decided, Babcock v. People, 15 Hun, 317. 3. In Criminal Actions. It was never doubted nndor the above statute, and has been expressly held under the Code of Civil Procedure, in connection with Criminal Code, § 392, that the rule applies as well to criminal as civil actions. People V. Stout, 3 Park. 670. People V. Murphy, 101 N. Y. 126. 4. Revisors' Note. The revisers say in their note : " The ground on which communications to counsel are privileged is the supposed necessity of a full knowledge of the facts to advise correctly, and to prepare for the proper defense or prosecution of a suit ; but surely the necessity of consulting a medical adviser, when life itself may be in jeopardy, is still stronger, and unless such consultations are privileged, men will be incidentally punished by being obliged to suffer the consequences of injuries without relief from the medical art, and without, conviction of any offense. Besides, in sucli cases, during the struggle between legal duty on the one hand and professional honor on the other, the latter, aided by a strong sense of the injustice and inhumanity of the rule, will in most cases furnish a temptation to the perversion or con- cealment of truth too strong for human resistance. In every view that can be taken of the policy, justice or humanity of the rule as it exists, its relaxation seems highly expedient. It is 104 Competency and Peivilege. believed that the proposition in the section is so guarded that it cannot be abused by applying it to cases not intended to be privileged." It is interesting to notice in this connection that from the Eevision of the Statutes, in 1828, until the earliest reported decision in the "Life-Insurance cases," in 1875, there were very few adjudications upon this subject ; much fewer than in the ten years that have elapsed since. 5. Early decisions. It was held error to compel a physician to testify to the disease of his patient. Johnson v, Johnson, 4 Paige, 459. Sloan V. N. Y. C. E. R. Co., 45 K Y. 135. Hunn V. Hunn, 1 T. & C. 499. It was held that a physician was not privileged from testifying that a man consulted him as to the means of pro- curing abortion ; not, however, upon the ground that it was for the purpose of committing a crime, but because " It is very doubtful whether the communication made to him by the defendant can be considered as consulting him professionally, within the meaning of the statute ; and it is certain that the inforniation given was not essential to enable him to prescribe for the patient, if the daughter of the plaintifE should be con- sidered a patient in respect to the transaction." Hewitt V. Prime, 31 Wend. 79. There were also two or three decisions upon the question of waiver, which will be considered hereafter. 6. Cases classified. The adjudications that are now regarded anthoritative have aimed to settle questions concerning : (1) Information, (2) Professional Capacity, (3) ISTecessary, &c., (4) Eight to object, (5) Waiver. (The last class is con- sidered in title Y.) Pkofessional Communications. 105 B. Infoemation. 1. People V. Stout. Rule. In People v. Stout, 3 Park. Cr. 670, decided in 1858, tlie court, after stating the history of the rule and alluding to tlie fact that no direct adjudication had theretofore been made upon the question there raised, but following the analogy of kindred decisions respecting attorney and client, laid down the general rule which is still recognized. Bule. The information mentioned in the statute is not confined to communications made Tyy the patient, hut extends to all facts which necessarily corns to the hnowledge of a phy- sician ill a given professional case. 2. Edington v. Mutual Life Ins. Co., and later cases. Tliis rule is elaborated in Edington v. Mutual Life Ins. Co. of JS". Y., 5 Ilun, 1 ; 67 K Y. 185, as follows : The privilege "includes not only information from statements of the patient, but such knowledge as the pliysician may acquire from the patient, from statements of others present at the time, or from his owni observations of the patient's symptoms and appearance." And this was followed in the later cases, including Dilleber ». Home Life Ins. Co., 69 N. Y. 256. Cahen v. Continental Life Ins. Co., 41 Super. 29C ; 69 K Y. 300. Peter Qrattaa o. National Life Ins. Co., 15 Hun, 74. Peter Grattans. Metropolitan Life Ins. Co., 80 N. Y. 381. Ferguson e. Mass. Mat. Life Ins. Co., 33 Hun, 806. Annie A. Grattan «. Metropolitan Life Ins. Co., 24 Hun, 43. Annie A. Grattan «. Metropolitan Life Ins. Co., 38 Hun, 430; 93 N. Y. 274. Westover v. iEtna Life Ins. Co., 99 N. Y. 56. Kenilian v. Dennin, 38 Hun, 370. 106 Competency and Pkivilege. 3. Annie A. Grattan Case. In the last appeal of Annie A. Grattan v. The Metropolitan Life Insurance Comijany, it was held that within the above rule a physician cauuot answer the question, " What opinion did you form, based on the general sight of the man before you made an examination, or before you had any conversation with him?" C. Professional Capacitt. 1. Introductory. Several questions have been raised depend- ing upon the interpretation to be put upon the phrase " pro- fessional capacity," as used in the statute. Some of them are now well settled ; as to others it is somewhat difficult to reconcile the adjudications. Tiie following principles are settled. 2. Eule. It malics no difference liy wlcovi the physician is employed or paid. People V. Stout, 3 Park. Cr. 670. Annie A. Grattsn Case, 24 IIuu, 43. People «. Murpliy, 101 N. Y. 136. 3. Rule. It is not necessary that a prescription le given. Slime cases. 4. Eule. The examination need not ie private to make the rule ajplicdble. Peter Grattan u. Met. Life Ins. Co., 80 N. Y. SCI. 5. Hewitt V. Prime. In Hewitt v. Prime, 21 "Wend. 79, a civil action for seduction, a physician called by the plaintiff was held incompetent to testify that he had been consulted by Peofessional Cokmdnications. 107 the defendant as to the means of produeing abortion, the court feeling " doubtful if it was a professional communica- tion." 6. Edington v. JEtna Life Ins. Co. In this case, 77 N. T. 564, one Diefendorf, who died in 1867, had been attended in 1862 by a physician who was asked : (1) Was he cured when he left your hands ? "Was he better or worse after you ceased treating him ? (2) "Was he, in 1867, in good health, and of sound body, and one who usually enjoyed good health ? These questions were rejected by the trial court. The decision was approved by the general term, as to the latter question, upon the ground that the opinion of the witness must necessarily be based, in part at least, upon the informa- tion acquired by him in his professional attendance. This although upon the trial the witness had been asked a further question : (3) Excluding any knowledge or information that you obtained while treating Diefendorf, and judging from his appearance from that time until 1867, what is your opinion as to whether he was a man in good health, of sound body, and a man who usually enjoyed good health ? It appeared that the witness was acquainted with the patient, and had seen him many times before' he attended him in 1862, and saw him after he ceased to attend him and between that time and 1867. As the same court say, in dis- tinguishing this case in 92 N. Y. page 287 : " He had a pos- sible knowledge derived from observation when no profes- sional relation existed." The key-note of the decision is found in the following quotation from the opinion : " It is not incumbent on the party who seeks information 108 Competency and Peivilegb. from a pliysician who has been in attendance npon a patient, to show that the information was not acquired as specified in the statute ; but tlie party objecting must, in some way make it appear, if it does not otherwise appear, tliat the information is within the statutory exclusion." D. Necessaet to enable htm to act. 1. Hewitt T. Prime. In this case (21 Wend. 79) the Court, while doubtful whether in a seduction case tlie fact that the defendant had consulted a physician as to the means of procuring abortion constituted a professional communication within the rule, were certain " that the information given was not essential to enable him to prescribe for the patient, if the daughter of the plaintiff should be considered a patient in respect to the transaction," and so admitted the evidence. 2. Sloan v. N. Y. C. R. R. Co. Jn this case (45 N. Y. 125), the Coul't, after holding that a pliysician could not testify to the nature of the patient's disease while under his care as a physician, say : "The presumption is, from the question, that he learned it as a physician for the purpose of prescribing. The question itself implies it. To require the plaintiff to make the prelim- inary inquiry whether he learned the fact for the purpose of prescribing, would, in effect, if the fact existed, have deprived the plaintiff of tlie protection of the statute. It would have proved the fact indirectly, which might be as injurious as if proved legitimately." 3. Peter Grattaa v. Metropolitan Life Ins. Co. (80 N. Y. 281). Here the Court say : " Nor was it necessary for the plaintiff to show in the first Peofessional Communications. 109 instance, by formal proof, that tlio information was necessary to enable the witness to prescribe. Such, under the circum- stances of the case, is the inevitable inference." E. TTho may object. 1. Rule. Tlie privilege of objecting to testimony under these sections is net limited to the patient or his personal representative, or affected hy his decease. It may he exercised hy an assignor or a third party. Edington v. Mut. Life Iqs. Co., G7 N. Y. 185. The above general rule is well settled by the Life Insur- ance cases. 2. Rule. A witness may not talce the objection. Johnson v. Johnson, 14 "Wend. 637. 3. Rule. A defendant indicted for a crime cannot avail himself of the privilege of another person, with respect to com- munications of a privileged character by a physician. People 11. Murpliy, 101 N. Y. 126. It is proper to add here tlie decision in Conn. Mut. Life Ins. Co. V. Union Trnst Co., 112 U. S. 250, where it is held that § 834 is controlling in thelJ. S. circuit courts in the State of New York. 110 CoMPETENCr AND PbIVILEGE. TITLE IV. Attorney and Client. 1. Introductory. 2. lUile — Extent of exclusion. 3. Rule — Charge unnecessary. 4. Kule — Clerk of attorney. 5. Rule — Must be client. C. Rule — Relation must exist at time of communica- tion. 7. Rule — Exception to above. 8. Rule — Adverse party present — not privileged. 9. Rule — Common attorney when not privileged. 10. Rule — Common attorney when privileged. 11. Rule— Collateral fact. 13. Rule — Witness of execution. 13. Rule — Conduit. 14. Rule — Papers when privileged. 15. Rule — Contra. 16. Rule — Basis for secondary evidence. 17. Rule — Papers not privileged. 18. Advice to commit crime. 19. Rule — Terms of compromise. 20. Rule — Question for Court. 2 1. Rule — Third person competent. 23. Miscellaneous. 1. Introductory. Unlike tlie roLitions of priest and peni- tent and physician and patient, that of attorney and client was by the common law regarded as one in which communi- cations made therein should be privileged. As stated in the opinion in Whiting v. Barney, 30 N. T. 330. " Its origin seems to have been this : In ancient times parties litigant were in the habit of coming into court and prosecuting or defending their suits in person. Subsequently, however, as law-suits multiplied and the modes of judicial Pjkofessional Commcnications. Ill proceeding became more complex and formal, it became necessary to bave these suits conducted by persons skilled in the laws and in the practice of the courts. This necessity gave rise, at an early daj', to the class of attorneys. To facilitate the business of the courts, it was impoi'tant that these men should be employed. Eut as parties were not then obliged to testify in their own cases, and could not be com- pelled to disclose facts known only to themselves, they would hesitate to employ professional men and make the necessary disclosures to them, if the facts thus communicated were thus brought within the reach of their opponents. To encourage the employment of attorneys, therefore, it became indispen- sable to extend to them the immunity enjoyed by the party." It was formerly held that the exclusion should only extend to such communications as have relation to some suit or other judicial proceeding, either existing or anticipated. This rule is now, however, sujserseded by the following : 2. Rule. Where an attorney is jjrofessionall>j employed, any cominunication made to him hy his client, with reference to the object or the subject of such employment, is under the seal of professional confidence, and is entitled to protection as a privileged communication. Bank of Utica u. Mersercau, 3 Barb. Ch. 528, 595. Clark V. Richards, 3 E. D. Smith, 89. Wliiting !). Barney, 30 N. T. 330. Britton v. Lorcnz, 45 N. Y. 51. Graham v. People, G3 Barb. 4C8. Rogers v. Lyon, 64 Barb. 373. Brands. Brand, 39 How. Pr. 193. Bacon v. Frisbie, 15 Hun, 20; 80 N. Y. 394. Carnes v. Piatt, 3G Super. 3G1. Pearsall v. Elmer, 5 Redf. 181. Root V. Wright, 84 N. Y. 73. Crosby v. Berger, 11 Paige, 377. 113 Competency and Peivilege. 3 Rule. It malces no difference that the client offered no compensation, and the attorney made or expected to make no charge for his services. March v. Ludlum, 3 Saud. Ch. 35. 4. Rule. The cleric of an attorney or counsel is forbidden to d%sclose a confidential communication made in his presence. nnmd V. Brnnri. 39 IIow, Pr. 193. Jiickson V. French. 3 Wtnd. :137. Sibley v, VVufflc, IG N. Y. 180. 5. Rule. The rule covers only information obtained solely from a person coming to tlie witness in the character of client. Bogert V. Bogert, 3 Edw. Ch. 399. Marsh v. Hnwe, 36 Barb. 049. Rochester City Bank v. Suydam, 5 How. Pr. 254. Althouse V. "Wells, 40 Hun, 336. 6. Rule. A communication made after the relation of attorney and client has ceased is not privileged. Mandeville v. Guernsey, 38 Barb. 235. 7. Rule. Communications between a person and his ■former attorney, in respect to matters in which lie has so acted, and arising therefrom, are privileged. Myers v. Dorman, 34 Hun, 115. 8. Rule. If the communication be made in the presence of the adverse party it is not privileged. Brand ». Brand, 39 How. Pr. 193. Whiting 11. Biirney, 30 N. Y. 330. Woodrua ». Hurson, 33 Barb. 557. Prouty ». Eaton, 41 Barb. 409. Hebbard ». Haughian, 70 N. Y. 54. Peofessional Communications. 113 9. Rule. An attorney who acted for hoth parties may testify, in a subsequent litigation ietween the representatives of the parties, to what took place between them. Sherman v. Scott, 27 Hun, 331. Eosenberg v. Rosenberg, 40 Hun, 91. 10. Rule. £ut where parties having hostile claims employ a common attorney, what transpires is privileged in the action Ietween them and a third party. Root v. Wright, 84 N. T. 73. 11. Rule. An attorney may testify to a collateral fact which he might know without being entrusted with it ly his client. (Handwriting.) Johnson v. Daverne, 19 Johns. 134. 12. Rule. An attorney loho witnesses the execution of cm instrument must testify to it the same as any other witness. Bank v. Mersereau, 3 Barb. Ch. at p. 597. Shufelt V. Watrous, 16 W. Dig. 198. Foster v. Wilkinson, 37 Hun, 243. 13. Rule. The attorney who acts as the conduit, through ohom a conveyance is made, must testify to the ch'cumstan- ces attending its execution, Foster v. Wilkinson, 37 Hun, 343. 14. Rule. An attorney is not obliged, ^lpon a trial, to produce papers entrusted to him by his client, nor can he be compelled as a witness to state their contents. Jackson v. Denison, 4 Wend. 558. Jackson v, Burtis, 14 Johns. 391. 8 114 Competency and Ppjvilege. Coveney v. Tannaliill, 1 Hill, 33. Kellogg V. Kellogg, 6 Barb. 110. Mallory ». Benjamin, 9 How. Pr. 419. Estate of Hoyt, 7 Civ. Pro. 374. Hoyt V. Jaokson, 3 Dem. 888. In the last case, however, it was held that the paper should be produced pursuant to the subpoena, and the ques- tion of competency submitted to the court. 15. Eule. The rule is otherwise where client and coun- sel comhine to prevent the production of papers. People 10. Sheriff, 39 Barb. 632. 16. Eule. Wherever the client may'be called on to produce papers, the attorney, if they are in his possession, rruiy lie reqxdred to produce them. Mitchell's Case, 13 A.bb. Pr. 349. 17. Rule. An attorney may he compelled to prove the existence of a paper, and that it is in his possession, so that the other party may ^ive secondary evidence of its contents. Brandt v. Klein, 17 Johns. 335. Jackson v. McVey, 18 Johns. 330. 18. Advice for commissioa of crime. It has been held that the seal of professional confidence does not cover communica- tions made to an attorney for the purpose of obtaining profes- sional advice or assistance as to the commission of crime. Bank of Utica v. Mersereaii, 3 Barb. Ch. at p. 598. Coveney «. Tannaliill, 1 Hill, 33. People V. Blakelcy, 4 Park. Cr. 176. PROFESSIONAL COMMUNICATIONS. ,115. 19. Eule. Terms of compromise offered hy an attorney to the creditors of his client are not confidential and not protected. McTavisli v. Denning, Anth. 155. 20. Rule. It is for the court to determine from the facts whether the attorney was acting in a professional capacity, even though he disclaims it. Mitchell's Case, 13 Abb. Pr. 249. Bacon v. Frisbie, 80 N. Y. 394. 21. Rule. A third person may testify to what passes between attorney and client. Gary v. White, 59 N. Y. 336. 22. Miscellaneous. On a trial for seduction, the complain- ant's counsel in a former action for breach of promise cannot be asked if he obtained the facts of that complaint from her. Armstrong v. People, 70 JT. Y. 38. Declarations and statements in consultation cannot be divulged by an attorney. Smith ». Smith, 1 T. & C. 63. An attorney must testify that in collecting a claim which his client had assigned he acted in behalf of such client, and that the latter forbade him to pay over the proceeds to the Mulford s. MuUer, 8 Abb. Dec. 330. 116 . Competency and Peivilege. TITLE V. "Waivee. 1. Rule— By wliom waived— penitent, palient or client. 2. After assignment. 3. Waiver by otliers— Cases. 4. Contra. Westover v. JEtna L. Ins. Co. 5. Rule — One joint client cannot waive. 6. Rule — No waiver from prior trial. 7. Rule — Calling one physician no waiver as to anotlier. 1. Rule. The privilege of objecting to testimony as incom- petent within §§ 833, 834 and 835 Tnay ie waived hy the penitent, patient or client, and ly him only. Code Civ. Pro. § 836. Edington ». ^tna L. Ins. Co., 13 Hun, 543. Dilleber b. Home Life Ins. Co., 69 N. Y. 256. Cahen v. Contl. L. Ins. Co., 41 Super. 296. S. C, 69 N. T. 300. Pearsall ». Elmer, 5 Redf. 181. Bank v. Mersereau, 3 Barb. Ch. 596. Bacon v. Frisbie, 80 N. Y. 394. Westover v. JStna Life Ins. Co., 99 N. Y. 56. 2. After assignment. This privilege has been held to remain to tlie penitent, patient or client after his interest Las passed to an assignee. Benjamin v. Coventry, 19 Wend. 353. 3. Waiver by others. In spite of both statute and adjudi- cation, it has been repeatedly decided that the privilege may nevertheless be waived by others, c. g. : Peofessional Communications. 117 a. By personal representatives. Allen V. Pub. Adm'r, 1 Bradf. 221. Staunton v. Parker, 19 Hun, 55. Pearss^ll v. Elmer, 5 Redf. 181. Whelpley v. Loder, 1 Dem. 868. The above were probate cases and will be considered under the next title. b. By the People. Pierson v. People, 18 Hun, 239; 79 N. T. 434. Here the patient had died, and the defendant was charged with poisoning her. The People desired the testimony of the attending physician. The defendant objected. The evidence was clearly incompetent within the language of the Code. The Court of Appeals held it admissible, citing with approval from the opinion at General Term, as follows : " The purpose for which the aid of the statute is invoked, in this case, is so utterly foreign to the purposes and objects of the act, and so diametrically opposed to any intention which the Legislature can be supposed to have had in the enactment, so contrary to and inconsistent with its spirit, which most clearly intended to protect the patient and not to shield one who is charged with his murder, that in such a case the statute is not to be so construed as to be used as a weapon of defense to the party so charged, instead of a pro- tection to his victim." 4. Contra. It would seem, however, from its latest decision, that the Court of Appeals has determined to hold strongly to the statute, without regard to intent, usage, or public policy ; and that, until further legislation, all information thus obtained is privileged, and there can be no waiver whatever by repre- 118 Competency and Pbitilege. sentatives. "The seal of the law ouce fixed upon them remains forever, unless removed by the party himself in whose favor it was there placed. It is not removed without the client's consent, even though the interests of criminal justice may seem to require the production of the evidence. An executor or administrator does not represent the deceased for the purpose of making such a waiver." "Westover v. Mtna. Life Ins. Co., 99 N. T. 56. 5. Rule. Where the privilege ielongs to several clients, any number of them less than all cannot, contrary to the expressed will of the others, waive the privilege. Bank v. Mersereau, 3 Barb. Ch. at p. 596. Even though the parties not assenting are not parties to the suit upon trial. Id. Bacon v. Frisbie, 80 N. Y. 394. 6. Eule. A patient, by drawing certain evidence from his physician upon one trial, does not waive the right to olject to a similar question upon a su'bsequent trial. Annie A. Grattan v. Met. L. Ins. Co., 93 N. Y. 374. 7. Eule. A patient, ly examining one of his attending pjiysioians, does not toaive the right to olject to the testimony of other physicians who attended him. Hope V. T. & L. n. R. Co., 40 Hun, 438. Peofessional Communications. 119 TITLE 71. Peobate Cases. 1. Introductory. 2. Mental condition. 3. Preparation and contents of will. 1. Introductory. Upon questions relating to wills, the courts have been zealous to admit the evidence of attor- neys and attending physicians. The grounds upon which such evidence has been allowed have sometimes seemed more ingenious than sound. 2. Upon question of mental condition, in Allen v. Public Administrator, 1 Bradf. 221, the surrogate offers a choice of three grounds, as follows : " 1 do not, in the first place, think that testamentary cases are within the reason or the intention of the statute in question ; and secondly, if covered by its letter, then the decease of the party puts it beyond possibil- ity to assert the privilege ; and if still, from motives of pub- lic policy, the court should feel bound to extend and keep alive the privilege, that will not be done any further than is consistent with justice and good morals." The surrogate, to meet the proposition that after probate or administration the personal representatives might claim the benefit as against third persons, held that until probate or administration no one could claim the privilege. This was affirmed in Selden's Notes, page 93. In Pearsail v. Elmer, 5 Eedf. 181, the surrogate, speak- ing in approval of the above decision, says: "That his 120 Competency and Pbivilege. holding is against the letter of tlic statute cannot be doubted, but in its interpretation it seems to me that it is the duty of the court to take into consideration the object of the statute, and the mischief which would result from its literal con- struction." In Staunton v. Parker, 19 Hun, 55, the court held the evidence of an attending physician competent on the question of mental capacity, upon the ground that " it did not appear that the information sought was information of any facts which were necessary to enable him to act in the capacity of the physician of the testator. It was not the dis- closure of any confidential information acquired in his pro- fessional capacity, but of facts which were open to the observation of any person who had seen and conversed with the testator." Also that the heirs at law, as representatives of the deceased, by offering evidence, waived the privilege. ' In Whelpley v. Loder, 1 Dem. 368, the evidence was admitted ^rst, upon the ground of waiver, and second, upon the broader ground cited from Wharton on Evidence, § 591, and approved in Staunton v. Parker, supra, that " The privilege is meant to protect the living in their busi- ness relations, and cannot be invoked when the question arises as to the intention of a deceased person, in respect to the disposition of his estate." In Steele v. Ward, 30 Hun, 555, Mr. Justice Smith in his dissenting opinion holds the evidence admissible because " It was such information as a layman would have acquired in the same interview." In Delafield v. Parish, 25 N. Y. 9, as also in several of those above cited, stress was put upon the fact that such evidence had been habitually received. In Eenihan v. Dcnnin, 38 Hun, 270, the court holds strictly in accordance with the Code, that a consulting or Professional Communications. 121 attending physician is incompetent to testify to the mental condition of his patient, even upon probate ; and cites in sup- port thereof the case of Westover v. Mtaa, Life Insurance Company {sierra), 99 N. Y. 56. 3. Preparation and contents of will. In Sheridan v. Houg'.i- ton, 16 Hun, 628, the attorney who drew the will was retained by the heirs to oppose probate. He was held competent in behalf of the proponents to testify in relation to the preparation and contents of the will. In Matter of Chapman, 27 Hun, "573, it was held that where probate of a will is contested on the ground of fraud, perjury or mistake, instructions for the making of the will are not privileged. « INDEX. A. ACTIOIT, executor, &c., incompetent on trial of, § 829 13 section 839 applied on trial of 11 ADDRESS oa package, not transaction, § 829 : 41 ADMINISTRATOE, in own right, not successor, § 829 33 party, incompetent, § 829 14 person in interest, incompetent, § 829 16 testimony against, incompetent, § 829 28 ADULTERY, actions founded on, competency of husband or •wife 68, 75, 70 husband or wife incompetent. Code Civ. Pro. §831 ■. 68, 75 incompetent. Laws of 1867, ch. 887 75 incompetent to prove marriage void— Rule 76 competent under Code Pro. §399, 1857 76 Supreme Court Rule 73 of 1884, to be constr'hed with § 831 76 ADVERSARY, conversations of attorney with client in presence of, not privileged — Rule 113 AGENT, deceased, transaction with, § 839 —Rule 85 [133] 124: Index. Page AGENT, not person ia interest, § 839 18 of decedent, transaction with, § 839 — Rule 85 •with decedent, transaction of, § 839— Rule 34 AGREEMENT, proof of implied, transaction, § 839 39 ANALYSIS of § 839 5 ARREST cannot be proven 83 ASSIGNMENT, after, privilege to penitent, patient, client 116 ASSIGNOR of equity of redemption, predecessor, § 839 23 of mortgage, predecessor, § 839 "-' ATTORNEY, confidential communications to 99, 110-115 adverse party present, no privilege— Rule 113 after relation ceased, new communication not privileged — Rule 113 prior communication privi- leged— Rule 113 clerk of attorney cannot disclose communication — Rule 113 collateral fact, knowledge not confidential — Rule. 113 common attorney, action between parties — Rule. . 113 against both — Rule 113 compensation unnecessary — Rule 113 compromise, terms of not privileged — Rule 115 conduit for conveyance — Rule 113 crime, advice for commission of 114 fact of relation for court to determine — Rule 115 general rule Ill miscellaneous cases 115 origin of privilege 110 papers of client, attorney need not produce — Rule 113 must if combination with client — Rule 114 must if client compellable — Rule 114 must prove existence, &c. — Rule 114 relation must exist — Rule 113 third person present, may testify — Rule 115 witmess of instrument —Rule 113 Index. 125 B. Page BEHALF, in whose testimony incompetent, § 839 24-37 of witness ■ 24 of successor in interest 27 BENEFICIARIES in will incompetent, § 839 15 BIRTH, not personal transaction, § 839 30 BONDS in trunk, "concerning " transaction, § 839 47 BOOKS OF ACCOUNT, entry in, not transaction, § 839 36 not testimony of decedent, § 839 63 of pliysician, § 839 40 BORROWING MONEY, stating reason for, "concerning" traus- action, § 839 49 BRIBERY, co-offenders not privileged 88 BURDEN OF PROOF, § 839— Rule 64 C. CHANGE of paper is transaction, § 839 43 CHECK, nature of, tending to show, "concerning" transaction, §839 48 CIVIL or criminal liability, tending to establish. Code Civ. Pro. § 837 83-80 civil liability, old decisions 84 credibility, as affecting 85 criminal practice 8i criminate, tending to 84 disgrace, tending to 85 effect, witness how far to judge of 86 examination before trial 84 explanation of voluntary statement 85 privilege personal 85 statute before Code 83 CJjERGYMAN, communications to privileged. Code Civ. Pro. § 833 99, 100-101 common law, not privileged at 100 126 ' Index. CLERaYMAN, &c. professional capacity, communication must be in —Rule 101 Revised Statutes, privileged by 101 CLERK of attorney cannot divulge confidential communication — Rule 112 CLIENT may ^aive privilege, attorney and client — Rule 116 CODE OF CIVIL PROCEDURE, § 828 (See Party; General Com- petency) 1, 68, 74 § 829 (See Section 829) 5-67 §830 4 § 831 (See Husband and Wife) 68-69, 75-77 § 883 (See Convicted persons).. 79-82 § 883 (See Professional communi- cations ; Clergyman). 99, 100-101 § 834 (See Professional communi- cations ; Physician). 99, 101-109 § 885 (See Professional communi- cations; Attorney).. 99, 110-116 § 836 (See Professional communi- cations; Waiver) 100, 117 § 837 (See Civil or criminal lia- bility) 83-86 CODE OP CRIMINAL PROCEDURE, § 392 1, 84 § 393 (See Defendants in criminal actions) .... 90-93 §395(SeeCon/€ssw7!s) 9^98 CODE, PENAL (See Penal Code). CODE OF PROCEDURE, § 8 11 §390 3 §396 3 §398 3, 7, 70 §399 7-11, 70 1849 31 1851 7, 22 1857 8, 11, 23, 76 Index. 12Y Pago CODE OP PROCEDURE, § 399, &c. 1860 8, 11, 46 1863 8, 23, 46 1863 8 1865 8 1866 3, 9, 24 1867 9 1869 10, 22, 46 COLLATERAL FACT, attorney may testify to— Rule 113 COMMON ATTORNEY, communications to la actions between parties — Rule 113 communications to in actions against both parties— Rule 113 COMMUNICATIONS (See Personal transactions or communications) by signs and sounds, transaction, § 829. ... 43 COMPENSATION unnecessary, attorney— Rule 112 COMPETENCY (See Confessions; Convicted persons ; Defendants in criminal actions; Hushand and wife ; Oeneral competency; Parties; Persons in interest). of parties, &c., restored, § 829 59-62 (See Executor ; Decedent). COMPROMISE, terms of not privileged, attorney — Rule 115 " CONCERNING " transaction 46-50 adjudications. 47-50 bonds in trunk 47 contents of will and memorandum 48 custody of deed 49 nature of check 49 reason for borrowing 49 corresponding provision of old Code 49 CONDUIT, attorney as, not privileged— Rule 113 CONFESSIONS, Code Crim. Pro. § 395 94-97 decisions under Code 97 conduct and declarations 97 explaining circumstances 98 decisions prior to Code 97-98 fact of statement, and consequence 98 128 Index. Page CONFESSIONS, &c, question for jury 98 silence 97 ethical question 95 prior to Code 94 purpose of rule , 96 CONFIDENTIAL COMMUNICATIONS (See Husband and wife; Professional communications) CONSIDERATION of note, transaction, § 829 39 CONSTITUTIONAL question, Code Crim. Pro. § 393 90 CONSULTATION, declaration to attorney upon privileged— Rule . 115 CONTENTS of paper, transaction, § 829 42 CONTESTANT of probate, successor, § 829— Rule ' 31 CONTINGENT interest does not disqualify, § 839— Rule 15 CONTRACT, transaction, § 829 39 CONVICTED person, competency of 79-S3 civil actions only, rule formerly applied to 82 Code Crim. Pro. §832 79 less than conviction incompetent 82 arrest 82 indictment 82 misdemeanor, conviction for 81 Penal Code, § 714 79 perjurers, rule as to 80 purpose of rule 80 Revised Statutes, rule under 80 sentence, conviction includes 82 state, conviction within 81 CO-OFFENDERS, testimony against not privileged 87-89 bribery. Penal Code, § 79 88 crimes against public peace. Penal Code, § 469 88 duelling. Penal Code, § 241 87 gaming, Penal Code, § 342 88 illegal sale of chose in action. Penal Code, §142 87 perjury. Penal Code, § 713 89 Ixijiix. 129 Page CREDIBILITY, Codii Civ. Pro. § 837 does not affiect 85 coQviction of misdemeanor as oiEEocling, compe- tent 85 CREDITOR not successor, § 829— Rule 31 not survivor, § 839 — Rule 30 CRIME, advice for commission of, not privileged 114 against public peace; oo offenders not privileged 88 CRIMINAL ACTIONS, civil or criminal liability 84 husband and wife 69, 78 parties, before Code ;; physician, privilege of 10 ', testimony of accused 90-6;s (See Defendants in criminal adtions.'^ ■wife competent against husband 73 CRIMINAL CONVERSATION, husband and wife in action for.. 77-78 Code Civ. Pro. § 831 77 divorced wife— Rule 78 prior to Code ..,.., 78 CROSS-EXAMINATION as to transaction, § 839— Rule 04 of accused person — Rule ■ 91 ■whole transaction on, § 829 — Rule G3 D. DEATH of party after examination before trial, § 839— Rule 63 during trial, § 839— Rule 03 DECEASED witness on former trial, testimony of, § 820— Rule. . . 64 DECEDENT, competency restored by offering testimony of, § 829 61-63 books of account 61 former trial— Rule 63 same action — Rule 62 successor, in behalf of— Rule .' 61 DEED, attorney who witnesses, not privileged- Rule 113 attorney as conduit for, not privileged- Rule 113 custody of, " concerning " transaction, § 829 49 delivery of, transaction at, § 829 43 9 130 Index. page DEFENDANTS in criminal actions, testimony of 90-1)3 Code Crim. Pro. § 393. 90 constitutional question 90 credibility, question of for jury — Rule 92 cross-examination, subject to ordinary rules — Rule 91 abuse of 91 error iu charge — Rule 93 failure to rebut, presumption from^Rule 92 Laws of 1869, chap. 678 90 DELIVERY of deed, transaction at, § 829 42 note is transaction, § 829 42 DISCOVERY of assets, § 829, applied 12 DISCRETIONARY condition, person in interest, § 829 15 DOWERESS, contingent interest, § 829 21 person in interest, § 829 10 not person in interest, § 829 19 DRIVING to house not transaction, § 829 30 DUELLING, co-ofEenders not privileged 87 E. ERROR, disregarding, § 829— Rule 6.5 ET HICAL question, confessions 95 EXAMINATION before trial, death of party after, § 829— Rule. . . C3 privilege extends to, civil or criminal liability 84 EXECUTION of paper, attorney as conduit for, not privileged — Rule 113 ■witness for, not privileged — Rule 113 ■will, not transaction, § 829 37 trial of issues concerning, § 829 12 EXECUTOR, ADMINISTRATOR, &c., competency of ■witness against restored, § 829.59-61 cases, evidence competent 59 Index. 131 Page EXECUTOR, ADMINISTRATOR, &c. examiniug adversary — Rule 01 same transaction — Rule GO in own right not successor, § 839 — Rule. 32 on probate, competent, § 829 — Rule 14 testimony against incompetent, § 839. 28-30 EXECUTRIX and legatee incompetent, § 839 14 F. PACT of professional relations for court — Rule 115 transaction, competency of, § 829 — Rule 35 FATHER of minor child, not person in interest, § 829 10 predecessor, § 829 22 FORMER ATTORNEY, communications privileged— Rule 112 contra— Rule 112 G. GAMING, co-ofEenders not privileged 88 GENERAL COMPETENCY of parties and persons in interest 1-5 Code Civ. Pro. § 828 1 Code Crim. Pro. § 393 1 common law rule and practice. . . 2 legislation prior to present Codes.. 3 husband and wife 68, 74, 75 in civil actions 74 criminal actions. , 75 GENERAL OBJECTION, §829 CO GRANTOR, predecessor in interest, § 829 23 H. HABEAS CORPUS, wife competent against husband 73 HANDWRITING, not transaction, § 829 36 HEIR (§ 839), competent against interest 25 132 Index. Page HEIR, &c. interest ia question merely, competent 20 person in interest 10 HISTORY and development of § 839 C-11 common law rule Code of Procedure, under 7-10 (See Code of Procedure, § 399) New Code, important modification in 10 problem stated 8 HUSBAND AND ATIFE, testimony of 68-78 adultery, in actions based on 75-76 act of 1867, cases 75 Code Civ. Pro. § 831 75 Code Pro. § 399, 1857 76 former marriage, incompetent to prove — Rule 76 Supreme Court rule 73 76 confidential communications 70-77 Code Civ. Pro. § 831 76 divorce, after, statutes apply — Rule . 77 Penal- Code, § 715 77 time of marriage, transaction at — Rule 77 criminal actions 73 adjudications 78 Penal Code, § 715 78 criminal conversation, actions for. . .77-78 Code Civ. Pro. § 831 77 Code, prior to 78 divorced wife competent — Rule ... 78 general competency 08, 74-75 act of 1867 74 Code Civ. Pro. § 838 74 Penal Code, § 715 75 prior to Penal Code 75 prior to present Codes 69-74 common law, nt 70 Index. 133 rage HUSBAND AND WIFE, &c. Codu of Procedure 70 statutes 71 wife competent agaiust husband, cases 73 provisions of Codes 68-69 adultery, incompetent on question of. Code Civ. Pro. § 831 68 competent, generally. Code Civ. Pro. § 838 at confidential communications, Code Civ. Pro. § 831 60 criminal actions, in, Penal Code, §715 6! crim. con., in actions for. Code Civ. Pro. § 831 00 ILLEGAL SALE of chose in action, co-offondor not privileged ... 87 INDEMNIFIER of officer, person in interest, § 839 17 INDICTMENT, cannot be proven 83 INDORSER (§ 839), not person in interest 30 predecessor in interest 33 INFERENTIAL PROOF, § 839— Rule 04 INK-STAND, carrying, transaction, § 839 , 43 INSTRUCTION to trustee, transaction, § 830 41 J. JOINT-MAKER OF NOTE (§ 829), not survivor— Rule 39 interest in question 30 JUDGMENT CREDITOR, contingent interest, § 829 21 JUDICIAL SETTLEMENT, § 839 applied ' 13 134 Imdex. L. Page LAWS of 1847, chap. 462 3 1867, chap. 887 72 1869, chap. 678 4, 90 1876, chap. 182 73, 75 436.....' 72 LEGATEE (§ 829), not person in interest 18 residuary, competent against interest 23 LIABILITY, civil or criminal, testimony tending to establish .... 83-86 (See Civil or criminal liability.) M. MAKER OP NOTE (§ 839), against interest, competent 26 for joint-maker, incompetent 26 surety, incompetent 27 person in interest 17 contra 19 MAERIAGE, former, in divorce case — Rule 70 transaction, § 829 38 MENTAL CONDITION, conduct showing transaction, § 829 44 on probate, attorney or physician not privileged 120 contra 121 >IESNE TRANSFERS (§ 829), predecessor in interest— Rule 23 successor — Rule 31 MISCELLANEOUS adjudications, § 829 63-65 MISDEMEANOR, conviction of, competency never affected 81 credibility affected 81 MORTGAGE, fact of signing, &c., § 829 48 MORTGAGEE, person in interest, § 839 18 Index. 135 N. Page NAME on paper, fact of, not transaction, § 829 37 NATURE of testimony excluded, § 839 33-59 (See Personal transaction, &c. ; Negativing transaction ; Tliird person.) NEGATIVING TRANSACTION (§ 839), afifected same as affirm- ing — Rule 54 contradicting by extraneous facts — Rule 55 NEW TRIAL, no waiver of privilege upon, professional communi- cations 1 119 NEXT OF KIN, persona in interest, § 829 16 O. OBJECTION, liowmade, § 829 65-67 form of 67 general before proof — Rule 65 cases pro and con 66 motion to strike out — Rule 66 renewing, unnecessary — Rule 66 personal to witness, civil or criminal liability 85 counsel may take °^ other person cannot °^ public prosecutor cannot 8^ P, PAPER OF CLIENT, proving existence by attorney— Rule 114 what attorney must produce— Rule 114 may not produce — Rule.... 113 PARTICULAR ISSUE, interest in, § S29-Rule 21 loG Indkx. Pa^e PARTNER (§ 829), apparent, survivor includes -Rule 29 person in interest 17 surviving, survivor includes — Rule 3« estoppel by pleading — Rule 20 PARTY, against interest competent, § 829— Rule 2.'5 heir 2.5 legatee, residuary 23 maker of note 20 widow 2") for co-party, competent, § 829 — Rule 2*; maker for joint-maker 26 ■widow for claimant 26 generally competent (See General competency) 1 in own behalf incompetent, § 829 24-27 indirectly in own behalf incompetent, § 829 — Eule 2t) maker for surety 26 subsequent mortgagee for mortgagor 27 representative incompetent, § 829 — Rule .- 1:3 competent on probate It PATIENT may waive privilege of § 834— Rule 117 no waiver on subsequent trial — Rule 119 PAYEE competent. Interest in question, § 829 liO PAYMENT, transaction, § 829 20 PENAL CODE, § 79 (See Co-offenders) 89 §142(" " ) 87 §241(" " ) ys §342(" " ) 88 §469(" " ) 88 §'712(" " ) 89 § 714 (See Convicted penonn) 79 § 715 (See Uuahand and wife) 69, 75, 77. 78 TENITENT may waive privilege of § 833— Rule - 116 PEOPLE, waiver of privilege 113 PERJURY, cnnvietion of renders incompetent 80 proof nn charge of gg PERSON IN INTEREST, § 829. competent as not being, iustances 18-21 liNUEX. 137 Page PERSON IN INTEREST, § 829, &c. agent, for principal 18, 34 attorney, lien for costs IS doweress, riglita admitted 1'.) father, for minor, wages surrendered 19 indorscr, for payee 19 legatee, specific 18 maker, for indorscr or surety 19 incompetent as being, instances 13-18 administrator, for estate 10 attorney, contingent fees 17 beneficiary, to sustain probate 15 deputy, for slieriff 18 doweress 10 heir, to oppose probate . . , 10 indemuifier of officer IT maker, for surety 17 mortgagee, subsequent 18 next of kin, to increase estate 10 partner, to charge person as co- partner 17 stockholder, for corporation 16 tort-feasor, contingent 17 particular issues — Rule 21 question, interest in — Rule 20 stockholder or officer of bank not 34 test of interest — Rule , 15 time of examination, interestat — Rule.. 21 uncertain, remote or contingent interest —Rule 15, 20 discretionary condition 15 PERSONAL REPRESENTATIVES, waiver of privilege 118 PERSONAL TRANSACTION'S or communications, § 828 33-58 held to be, instances 38-44 address on package 41 change of paper 43 consideration of note or deed. 39 138 Index, Page PERSONAL TRANSACTIONS, &c. contents of paper 43 contract 39 decedent living, fact going to show 38 dulivery of note 43 delivery of deed, what took place at 43 implied agreement 39 inkstand, carrying 43 instruction- to trustee 41 marriage 38 mental condition, conduct showing 44 payment 39 services 40 •signature 41 signs and sounds, communi- cation by 43 surrender of writing 43 transfer with intent to defraud 41 held not to be, instances 3G-38 birth 36 custody and signature 38 driving to liouse 30 execution of will 3" fact of no other knowledge, &c 37 handwriting 36 signature 36 "concerning," (See Concerning transaction) 46-50 decedent with third person (See Tliird person) 50-54 fact of — Rule 35 negativing (See Negatimng transaction) 54-55 Index. 1.39 Page PERSONAL TRANSACTIONS, &c. of or with agents (See Agent).Zir-Z5 personal not private — Rule ... 35 silence meaning assent — Rule. 36 with two jointly interested, one surviving — Rule 35 PIIYSICIAN, confidential communications to 101-109 development of rule 103-104 at common law 102 by revised statutes 102 early decisions 104 information, how obtained 105-106 all necessary facts — Rule .... 106 decisions 105-106 necessary information, decisions 108 objection, who may take 109 assignor or third person — Rule 100 indicted person cannot, on privilege of another —Rule 109 witness cannot — Rule 109 professional capacity 106-108 burden of proof on party objecting — Rule.. 107-108 employment or payment unnecessary— Rule. . . 106 prescription unnecessary— Rule 106 private examination unnecessary 106 services, cannot testify to, § 829.. 40 POSSESSION of deed not transaction, § 829 .' . 38 POSSIBLE DOWERESS, contingent interest of, § 829 21 PREDECESSOR in interest, § 839 21-23. competent as not being father of minor, wages surrendered 23 incompetent as being . assignor of equity of redemption 22 ', assignor of mortgage 22 grantor 22 indorser 23 vendor 23 14:0 Index. Pago PREDECESSOR, &c. assignment, transfer by— Rule 33 development of rule 21 mesne transfers— Rule 23 rebuttal by grantor — Rule 33 subject-matter, interest in —Rule 23 PRIVATE, personaLti'aiisaction not necessarily— Rule 85 PRIVILEGE (See^ivil or criminal liability ; Co-offenders; Eus- ^ /I J^^ a hand and wife ; Professional communications)', i'^i'tr*'^ PROBATE CASES, professional communications in 119-123 executor in, competent, § 829 14 section 829 applied in 12 PROCEEDINGS in vrhich § 829 applied 12 development of rule 11 instances 12 decedent's estates, applications for sliare in. . 12 proceedings relative to . . , 12 sale of rejii estate 12 discovery of assets 12 execution of will, special issues concerning. . 12 judicial settlement 12 probate 12 limited to trials and hearings 13 proofs of loss, not 12 verification, not 12 PROFESSIONAL COMMUNICATIONS (See Attm-ney, Clergyman, Physician, Probate, Waiver) 99-122 PROFESSIONAL RELATION, fact of, question for court— Rule.. 115 PROOFS OF LOSS not trial or hearing, § 829 12 PUBLIC PEACE, crimes against, co-olfcnders not privileged 88 Q. QUESTION, interest in does not disqualify, § 829 20 heir for co-heir 20 maker for joint-maker 20 Index. 141 Pago QUESTION, &c. payee against joint maker 2d of competency under § 839, how raised 65-07 (See Objection). R. REBUTTAL, predecessor in interest competent on, § 839 23 REMOTE INTEREST does not disqualify, § 839— Rule 15 RENEWING OBJECTION, § 839— Rule '.... GO REPRESENTATIVE CAPACITY, party in incompetent, § 839— Rule 13 RULE, Supreme Court, 78 of 1884 6 S. SECTION 839, Code of Civil Procedure 5-67 against whom testimony incompetent 38-33 executor, administrator, survivor, committee . . . , 38-30 (See Executor, &c., Survivor). successor in interest (See Successor) 30-33 analysis 5-6 application, in vrhat proceedings (See Proceedings) 11-13 application, to wliose testimony 13-34 party (which see) 13-14 person in interest (which see) 14-34 predecessor in interest (which see) 31-21 behalf, in whose offered 24-37 party or person in interest (witness) (See Parti/; Person in interest) 24-37 successor in interest 37 competency, how restored 59-63 decedent, testimony of given' (See Decedent) 61-63 executor, &c., examined (See Executor) 59-61 history and development (which see) ... 6-H 142 Index. Pago SECTION 829, &c. miscellanebus adjudications 63-65 burden of proving iucompetency — Rule 64 construction, stiictuess of — Rule 64 cross-examination, whole ti'ansaction — Rule 64 as to transaction^— Rule 64 error, wlien may be disregarded — Rule 65 examination before trial, death of party after — Rule 63 same during trial — Rule 63 former trial, evidence of deceased witness on — Rule 64 proving inferentially — Rule 64 nature of testimony excluded 33-59 negativing transaction (which see) 54-59 personal transaction or communication (which see) 33-50 transaction between decedent and third person. . 50-54 (See 2'hird person.) objection how taken (which see) 65-67 SENTENCE included in conviction, Code Civ. Pro. § 832 83 SERVICES, transaction, § 829 40 SHARE IN ESTATE, application for, § 829 applied. 13 SIGNATURE, transaction, § 829 41 not transaction, § 829 36, 38 SIGNS AND SOUNDS, communication by, transaction, § 829 43 SILENCE may be transaction, § 829— Rule , 36 SON, contingent interest, § 829 21 SPECIAL PROCEEDING, hearing of, § 829 applied. . . .*. 11 STATUTES before present Codes, husband and wife 73 STOCKHOLDER person in interest, § 829 16 STOCKHOLDER or officer of banking corporation not person in interest, § 829 24 STRICTNESS of construction, § 829 64 STRIKING out testimony, § 829 , 66 SUBJECT MATTER and entire action ; predecessor in interest, § 839— Rule 23 SUBSEQUENT mortgagee for mortgagor ; indirectly for himself, § 829— Rule 26 Index. 143 Page SUCCESSOR in interest, of decedent, against, testimony incompe- tent, § 829 30-33 adjudications, old Code 30 new Code 30 contestant of probate is — Rule 31 creditor not — Rule 31 executor, &c., in own right not— Rule 32 mesne conveyances — Rule... 31 of witness 37 SURRENDER of writing is transaction, § 839 43 SURVIVOR, § 839, apparent partner is— Rule . 29 creditor not— Rule 30 joint maker not — Rule , ... 29 surviving partner is — Rule 39 testimony against 38 TENDING to criminate, testimony privileged 84 disgrace, not affected by Code 84 TEST of interest, § 839— Rule 15,30 THIRD PERSON, transactions between decedent and, § 829. . . 50-54 witness participating — Rule 51 third person agent of witness 53 ignorant of presence of witness. . . 53 turning head toward witness 53 witness silent meaning assent 51 simply hearing • 53 twenty feet away 53 • witness present but not participating — Rule.. 50 third person counsel of wit- ness 51 witness omitting personal share — Rule 54 m Index. Page THIRD PERSOIT, &c. may testify to communication between attorney and client — Rule 115 TIME of eximination, interest at, § 829, Rule 21 TORT-FEA.SOR, conditionally liable as, person in interest, § 839. 17 TRANSACTION (See Personal transaction or communication) 33-58 TRANSFER by assignment, predecessor, § 839— Rule 41 mesne (See Mesne transfers') ■with intent to defraud, transaction, § 839 41 TRIAL of action, § 839 applies to 11 § 399 Code Pro. at first limited to 11 or hearing, proofs of loss not 13 § 839 limited to 13 veiification not 13 U. UNCERTAIN interest does not disqualify, § 839— Rule 13, 20 doweress 31 judgment creditor 21 son , 21 V. VENDOR, predecessor in interest, § 839 23 VERIFICATION, not trial or hearing, § 839 13 W. WAIVER of privilege, professional communications 1 10-118 limited to penitent, patieut or client — Rule 116 others held able to waive — cases 116-117 people 117 personal representatives , 117 contra 117 Index. 145 Page WAIVER, &c. one of several clieuts cannot waive — Rule 118 new trial, waiver does not extend to — Rule 118 other physician, waiver does not extend to 118 WIDOW, for co-party competent, § 829. . ."r 26 against interest, competent, § 839 25 WIFE, competent against husband 73 criminal actions 73 habeas corpus 73 WILL, contents and memoranda, " concerning " transaction, § 829 49 contest for fraud, &c., draftsman may prove instructions. . 122. I Ij execution of, not transaction 37 10