■ MMBOAW**- (Snrufll Ham i>rl|nnl IGibraty 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/cu31924060048273 A TREATISE ON THE COMPETEICY m RIGHTS OP WITNESSES AND PAETIES IN INTEEEST IN ALL ACTIONS OR PROCEEDINGS BEFORE COURTS OR MAGISTRATES AMEEICAN AND ENGLISH DECISIONS BY RUSSEL HEADLEY Of the Newm^h Bar AXTTHOB OF " ASSIGNMENTS FOR THE BENEFIT OP CREDITORS " ALBANY, N. Y. MATTHEW BENDER 1897 Copyright, 1897, MATTHEW BENDER. TABLE OF CONTENTS. CHAPTER I. GENERAL PROVISIONS AS TO THE COMPETENCY AND EIGHTS OF WITNESSES. Preliminary Sec. 1 Oath of 2 Mode of taking 3 Competency of '. 4 Incompetency in general , 5 Idiots and lunatics 6 Infancy 7 Question of competency for the court 8 Defect of religious belief 9 Unbelief how proved 10 Physical incapacity 11 Convict or infamous person r: 12 CHAPTER II. DISPARAGING AND CRIMINATING QUESTIONS. Exemption from answering disparaging questions Sec. 13 Tending to disgrace * 14 Illegal sale of thing in action 15 Bribery 16 Duelling 17 Gaming 18 Crimes against the public peace 19 Perjury 30 CHAPTER III. DEFENDANT AND ACCOMPLICES. The defendant as a witness Sec. 31 Cross-examination of 33 Power of court over , 33 iii iv TABLE OF CONTENTS. Accomplices as witnesses Sec. 24 Cross-examination of 25 Must be corroborated 26 Extent of corroboration 27 An accomplice defined 28 Decoys, detectives and spies Sft CHAPTER IV. UNDER SECTIONS 829 AND 830 CODE CIVIL PROCEDURE. Prelimary Sec. 30 Application of 31 Interest that disqualifies 32 What interest does not disqualify 33 Mortgagees and mortgagors 34 Promissory notes 35 Partnerships 3& Personal transactions 37 Claims against an estate 38 Books of account 39 Conversations that are incompetent 40 Conversations that are competent 41 Conversation between deceased and third persons 42 The rule in other cases 43 Testimony in own behalf 44 In behalf of co-plaintiflE or co-defendant 45 Administration 46 Deriving title or interest 47 Declarations of deceased 48 Negative and affirmative 49 Indirect evidence 50 Proceedings under the will 51 Objections to witness 52' Competency restored 53 Under section 830 54 CHAPTER V. PRIVILEGED COMMUNICATIONS. Preliminary Sec. 55 Communications to an attorney 56 What relations must exist 57 TABLE OP CONTENTS. V Cessation of relations Sec. 58 Objections to testimony , 59 Who decides as to relationship and privilege 60 What communications are privileged 61 What communications are not privileged 62 On probate of will 63 Waiver 64 Communications to physician 65 What are privileged 66 What are not privileged 67 Probate proceedings 68 Objections to testimony 69 Waiver 70 Communications to clergymen 71 CHAPTER VI. HUSBAND AND WIFE. Preliminary Sec. 72 What are confidential communications 73 What are not confidential communications 74 Husband and wife as witnesses for, or against, the other 75 In actions for divorce 76 In actions for criminal conversation 77 In criminal cases 78 Crimes committed against each other 79 CHAPTER VII. CONFESSIONS. Statute regulating Sec. 80 Preliminary *. 81 Knowledge of the language requisite 82 Weight of 83 Its weight for the jury 84 Identity of declarant must be proved 85 Confession must be voluntary 86 Induced by threats or compulsion 87 Illustrations 88 Threat or promise made indirectly 89 Vi TABLE OP CONTENTS. Confessions induced hy promise of reward or favor or given under a stipulation Sec. 90 Confessions of guilt other than the crime charged, made under inducements as to the latter 91 Inducements by one in authority 93 Statements made under duress 93 Induced by artifice or fraud. 94 To officer or other person, whUe under arrest. 95 Statement made before coroner 96 Judicial confessions 97 Statement, how taken 98 Statement unavailable for the defense 99 When the court holds a preliminary examination to determine competency of confession ..., 100 TABLE OF CASES. A. PAGE Adams v. Morrison 94 Albany Co. Sav. Bank v. Mc- Carthy 83, 148 Alberti v. N. Y., etc., E. E. Co. 194 Aldermen v. People 168, 181 Alexander v.Dutcher.. 88, 129, 143 Alexander v. Alexander 139 Allen V. Public Admr 180 Allen V. State 51, 53, 319 Allison V. Barrow 303 Allison V. State 48, 61 Allis w. SpaflEord 89 Althouse V. Wells 168, 176 Amos V. State 249 Anderson v. State 30 Andre v. Brodman 6 Andrews v. Maberry 20, 24 Andrews v. Nat. Bank 74 Andrews v. Trye 35 Angevine v. Angevine. .67, 74, 130 Arms, etc., Admrs.,i;. Middle- ton 117 Armstrong v. Noble 306 Armstrong v. People 171, 172 Atherton's Case 50 Atwood V. Milton 24 Auburn Sav. Bank v. Brinker- hofif 143 Austin V. People 233 Austin, Matter of 179 Avery v. Mattice 177 Aveson v. Kinnans 203 B. Babcock,iJe 131 Bacon v. Frisbie..l66, 170, 179, 183 PAGE Bacon v. State 53 Badger v. Badger 130 Bailey v. Bailey 205, 307 Bailey v. State. 237, 240 Baird, Be 186 Baker v. State 238 Balbo V. People 235 Baldwin v. Smidt 93 Ballour?. Ballou 184 Bank of Utica v. Mesereau . 165, 179, 183 Barker v. Kuhn 181, 300 Barnes v. Camack 203 Barnes v. Harris 167 Barnes v. State 249, 252 Barry v. Coville 171 Barry v. Eq. Life Assoc 74, 136 Barrett v. Carter 138 Bartlett v. Burns 176 Barthelemy v. People 24 Barton v. Scramling 68, 70 Barum v. Fonts 167 BatestJ. U. S 59, 64 Baxter v. Baxter 120 Beach Est., Be 92 Beatty u. Clark 116 Beaver v. Taylor 117 Bedgood v. State 50 Beery i;.U.S 318 Bell V. Bumsted 153 Bellows, Be 159 Benedict v. Driggs 88, 139 Benedict v. Phelps 124 Benedict v. State 167 Benjamin v. Coventry 180 Benjamin v. Demmick 78, 118 Bennet v. Austin 139 vii Till TABLE OF CASES. PAGE Bernsee, Re 77, 135, 149 Berrien, Re 151 Berry v. Com 313, 314 Berry v. People 56, 60 Bigler v. Rehrer 181 Birdsall v. Patterson 305, 306 Blackburn v. Com 58 Blackus V. Burness 31 Blaokwell v. State 15 Blaesi v. Blaesi 147 Blair v. Lease 30 Blankman v. McQueen 103 Blass V. Morrison 100 Bobs V. Bryson 181 Bob?;. State 351 Bookes V. Lansing 134 Bogert V. Bogert 168 Bostwick V. Gray 104 Boston V. Soramling 156 Boughton V. Bogardus 103, 146, 153 Bowers v. Smith 113 Bowley v. State 45 Bowling V. Com 53 Bowry, Re 191 Boyd V. State 326 Boyle V. Wiseman 35 Bradley v. Merrick 163 Bradner v. Howard 89 Braghan v. Gott 77 Brague v. Lord 110, 133, 135 Brand v. Brand 166, 175 Brandon v. People 48 Brandt v. Klein 178 Brashear v. State 43 Brayman v. Stephens 139 Brennan v. Hale 133, 169, 175 Brennan v. State 15 Brigham v. Gott 78, 184 Brink v. Mulligan 30 Britton v. Lorenz 166, 173, 175 Brown v. Brown 35, 130 Brown v. Burgett 141 Brown's Case 47 Brown v. Com 317 Brown v. Klook 79 Brown v. Matthews 163 Brown v. Met. L. Ins. Co 197 PAGE Brown v. People 318 Brown, Re 148 Brown v. E. W., etc., E. E. Co. 189 Brown v. State 15, 30, 250 Brown v. Third Ave. R. E. Co. 189 Buchanan v. Miller 80 Buck V. Stanton 77 Budlong, Re 107, 163 Bull V. Loveland 34 Burke, Be 148, 155 Burley v. Barnhard 81, 189 Burnett v. Noble 68, 109 Burnett v. Phalon 86 Burrows v. Butler 14 Butler V. B. R. E. Co 188 Butts V. Swartwood 30 Byass v. Sullivan 36 Byrdu State 218 C. Cadmus v. Oakley 183 Cahoon v. Com 173 Cairn v. State 331 Callahan v. Clement 116 Callister, Re 87, 138, 133 Campbell v. Com 60, 336 Campbell v. Hubbard. .68, 105, 110, 155 Campbell v. McGuire 119 Campbell v. State 10, 11, 13 Cannon v. N. W. M. L. I. Assn.. 106 Capper t).U. S 331 Card V. Card 146, 158 Carey v. White 127 Carlson v. Winterson 6 Carnes v. Piatt 166, 181 Carney v. Wadhams 141 Carroll v. Davis 100 Carroll v. Com 53 Can-oil V. State 49 Carter v. State 14, 15, 350 Casey v. Casey 210 Cent. M. E. E. Co. v. Eocka- fellow 30 Chadwick v. Fonner. .128, 139, 158 Challis V. Goddard 102 Chamberlin v. People 303 Chamberlin v. Wilson 83, 35 TABLE OF CASES. IX PAGE Chapman, Be 179 Chase, iJe 93, 179 CheUis V. Chapman 177 Chew V. Farm Bank 166 Children's Aid Soo. v. Lover- idge 121 Childs V. State 53 Church V. Howard 73, 89, 130 Churohv. Kidd 73 Clark, Be 71, 149 Clark V. Bruce 157 Clark V. MoNeal 85, 131 Clark 4J. State 44, 47 Clarke v. Smith 138, 130, 143 Clift V. Moses. , 145 Close iJ. Olney 37, 58 Clough V. State 241, 347 Cloyes V. Thayer 34 Coburn V. Odell 33, 35 Cofleee V. State 235, 343 Coffinu Jones 303 Coleman,i2e. .171, 179,181,191, 193 Coleman v. Com 9, 16 Collins V. Mock 203 Collins V. People 53 Collins V. Robinson 177 Colt V. MoConnell 175 Colwell V. Col well 207 Com. V. Bachelor 24 Com. v. Carey 15, 18 Com. V. Clark 347 Com. V. Coffee .224, 250 Com. V. Cohen 60 Com. V. Cooper 27 Com. V. Culver 333, 250 Com. V. Downing 58 Com. V. Drake 58 Com.'U.Giff 203 Com. V. Graham 30 Com. V. Hanlon 235 Com. V. Harriman 246, 348 Com.T. HiU 15, 25 Com. V. Holmes 53 Com. V. Holt 337 Com. V. Hutchinson 14, 15, 18 Com. V. Kaufman 33 Com. V. Knapp 228, 331, 238 Com. V. Lannon 44 PAOE Com. V. Morgan 45 Com. V. MuUins 19, 44, 45 Com. u Nott 318, 334 Com. V. Piper 250 Com. V. Pratt 34 Com V. Price 34, 35, 50, 51, 54 Com. V. Sapp 209 Com. V. Smith 24 Com. V. Snow 52 Com. V. Taylor 231 Com. V. Webster 44 Com. V. Willard 60 Com. V. Wood 60, 336 Com. V. Whitman 333 Comins v. Hetfield. . . .107, 113, 163 Compton V. State 48 Comrs. of Excise v. Backus. . . 64 Comstock V. Hier 93 Conklin v. Conklin 101 Conklin v. Snyder 71, 133 Connelly v. O'Connor 68, 83 Connelly v. Connor 73 Connors, Be 191 Connors v. People 43 Converse u. Cook 88, 90 Conway v. Moulton 94, 134 Cooke V. Grange 302 Coon V. People 15, 18 Coon V. Swan 167 Cooper V. Monroe 81 Copp V. Upham 34 Cornell v. Cornell 93, 101, 119 Cornell v. Venatsdalen 203 Cornelius v. Hamburg 208 Corning v. Walker 95, 160 Costello V. Costello 200 Cotton V. State 43, 67 Coveney v. Tannahill 165 Cowley V. People 44 Cox V, Hill 34 Cox V. People 318, 227 Craft u. State 53, 56 Crane v. Crane 100 Crawford v. Haines 108 Crawford v. McKissock 166 Crawford v. State 348 Crimmins v. Crimmins 203 Cross V. Eutledge 300, 303 TABLE OP CASES. PAGE Cross V. Smith 5, 153, 154 Crowe V. Brady 155 Crowly V. Davis 148 Crutohfield ?>. State 49 Curtiss V. Knox 36 Curtiss V. Stern 21 Curtiss V. Strong 34 D. Dakin as Excr., etc., w.Walton . 117 Darragh, Be 184 Davidson v. State 15 Davis, Re 128 Davis V. Gallagher 109, 133 Davis V. Marvine 75 Davis V. Seaman ; , 117 De Baun, iJe 58 Denham v. Jayne 107 Denise v. Denise 69, 144, 145 Dennis v. Crittenden 205 De Meli v. De Meli 306 De Verry v. Schuyler 93 Devinney v. Corey 67, 74 Devlin v. Greenwich Sav. Bank 126 Dewey v. Goodenough 79 De Wolfe v. Strades 167 Dexter v. Booth 302 Dickerman v. Graves 106 Dickinson v. Dickinson 207 Dickinson v. Duston 30 Dickinson v. State 347 DiUiber v. Home L. Ins. Co. 188, 187 Dinley v. McCullagh 115 Disque V. State 45 Ditmars v. Sacket 128 Dixon. V. Vale 85 Dodge V Brittain 61 Dodson V. State 237, 239 Doe V. Watkins 183 Donnelly u State 23 Donohue v. People 30 Dooley v. Moan 116 Doolittle V. Stone 145 Dougherty v. Met. L. Ins. Co.. 194 Doughty V. Doughty 150 PAGE Dowd V. Donnelly 30 Draper v. Draper 14, 15 Dubois V. Baker 145 Dunham v. Jayne 145 Dunham, WiU of 125, 126, 148 Dunn V. People 29 Dyer v. Dyer 139, 142 E. Eberhart v. State 249 Eokert v. Eokert 120 Edington v. Mtna, L. Ins. Co. 183, 184, 190 Edington v. Mut. L. Ins. Co. 184, 193 Ehrman V. Scheuman 68, 73 Eighmie v. Eighmie 134 Eighmie v. Taylor 126, 127 Eisenlord v. Clum 71 Elizabeth v. State 220 Ellis V. Filon 74 Ellis V. State 250, 251 Eskbridge v. State 214 Elmore v. Jaques 118 Elston, He 179 Ely V. Clute 88 Emory's Case 33 Erwin v. Erwin 69, 126 Eysaman, Re 78, 105, 119, 125 Fairchild v. Bascomb 13, 36 Fanning v. Fanning 307 Farace v. Farace 300 Farley v. Norton 94 Earns worth v. Ebbs 71, 130 Farrell v. Krum 107 Fay V. Gugnon 303 Feeny v. L. I., etc., E. R. Co. . 188 Fellows V. Wilson 36 Fenton v. Eggleston 99 Finn v. Finn 205 Fire Assoc, v. Flemming 167 Fisher v. Fisher 183 Fisher ■«. Reynolds 38 Fisher v. Verplanck Ill Fitzgerald v. State 84 TABLE OF CASES. XI PAOE Flannagan v. State 14, 15, 18 Flemming v. State 36 Floyd V. Miller 303 Floyd D. State 33 Fogal V. Paige 71 Foley V. Eoyal Arcanum 197 Foote V. Beecher 133, 187, 152 Foster v. Hall 166 Foster v. Pierce 85 Foster v. People 48, 50 Foster v. Wilkinson 176 Fowler v. Fowler 304 Fox V. Black 143 Fox V.Clark 90, 93 Foxv. Terr 37 Fraleigh v. Cadman 114 Fraliok v. People 43 Frank v. Dillon 206 Franklin v. Pinkey 98 Fratini v. Caslini 308 Frazer, Be 67, 75, 106 Frederick v. State 68 Freeman, Re 195 Freeman v. Lawrence 110 Fries v. Bergen 38 Furrow v. Chapin 306 a. Gadshen v. Woodward 36 Gagan's WiU, Be 181 Gage V. Gage 166, 168 GaUager, Be 113 Gannon v. People 203 Gardner v. Hirsch 158 Garvey v. Owens 134 Geisenheimer v. Dodge 36 Genet v. Ketcham 173 Genet v. Lawyer 90, 130 Gentry v. State 222 German Sav. Bank v. Slade..88, 93 Gibert v. Sanders 146 Gillies V. Kreuder 133 Gillooley v. State 198 Ginochio v. Porcella 137 Givens iJ. Com 18 Godine v. Kidd 82 Goddard v. Gardner 167 PAGK Gogan.iJe 80 Gomerich v. Ulrich 73 Goodwin v. Hirsch 96, 157, 158 Gordon v. Barney 85 Gotts V. People 220 Gourlay v. Hamilton 70 Grattan v. Met. L. I. Co.. .183, 184, 185, 186 Grattan v. Nat. L. I. Co 183 Graves v. King ,101, 136 Gray U.Coles 303 Gray v. Gray 201 Great W. T. Co. u. Loomis . . 37, 47 Gregory v. Fichtner Ill, 145 Green v. Com 30 Green u. Edicks 94, 95 Green v. State 68 Greer i>. Greer 99, 174 Greer v. State 820 Griffin v. Smith 200, 203 Griggs V. Day 118 Gross V. Wilwood 71, 136 Gross V. State 318 Grosse v. State 333 Grossman v. Sup. Lodge 184 H. Hacford v. Palmer 37 Hadsall v. Scott 85, 130 Hall, Be 115 Hall V. Richardson. . .102, 131, 136 Hall V. Roberts 75 Halsey, Be 193 Ham V. Van Orden 152, 153 Hamilton v. People 51 Hammond v. Schultz. ,74, 129, 158, 159 Hampton v. Roylan 176 Hanely, iJe. 68,70, 79 Hannah, Be 191 Hard v. Ashley. . . .78, 103, 140, 159 Harding v. State 237 Harrisburg, etc., Manufg. Co. V. Sloan 177 Hartegan v. Nagle 133 Hartman, Be 127 Hartnung v. People 237 xu TABLE OP CASES. PAGE Hatch V. Peugnet 68, 98 Haughey v. Wright 138 Hay V. Muller 145 Head v. Feeter 134 Heath v. Broadway, etc., E. E. Co 183, 185 HebbarduHaughian..l71, 174, 175 Hector v. State 318, 320, 349 Heldt t). State 43 Hemmingway v. Smith 181 Hendrickson ■«. People 341, 343 Henry v. Bank 36 Henry v. N. Y., etc., E. E. Co. 183 Herrington v. Winn. . .99, 105, 183, 193 Hewitt, Re 105 Hewitt V. Prime 188 Heyne v. Doeffler 69, 97, 118 Hicks V. Alexander 113 Higden v. Head 37 Hier v. Grant 147 Hildebrant v. Crawford 84, 137 Hill u Hotchkin 130 Hill V. Woolsey 73 Hill v. State 15 Hill V. Heermans 138, 144 Hoar V. Hoar 158, 154 Hobart v. Hobart 6, 68, 80, 81, 153, 154 Holcomb V. Campbell 86 Holcomb V. Holcomb. . . .9, 10, 11, 13, 13, 79, 105, 119, 125, 137 Holden v. Met. L. Ins. Co 190 Hollands v. WiUett 70 HoUenbeck v. MoGibbons 177 Hoist I). State 17 Honneycutt v. State 319, 225 Hoober v. State 224, 334 Hope V. T. & L. E. E. Co 195 Hopkins, Re 149 Hopkins v. Clarke 83, 112, 136 Hopt V. Utah 238, 249 Hortenaie v. Kaufman 35 Hosenbok v. State 250 Houlthausen v. Pondir 178 Howe V. Schweinberg 160 Howell V. Main waring 86 Howell V. Taylor 93, 98, 119 PAGE Howser v. Com 6 Hoyt, Estate of. .169, 178, 180, 186 Hoyt V. Hoyt. .5, 154, 183, 191, 193 Hoyt V. Jackson 165 Hoyt V. Odell 12 Hull V. Lyon 178 Humfreville, Re 143 Humphrey v. Sweeting 81 Hunn V. Hunn 187 Hunscombe v. Hunscombe..22, 33 Hunt u. P. & S. C. Co 103 Hunter v. Herrick 92, 94 Hunter v. Watson 173 Huntley v. Huntley 307 Hurlburt v. Hurlburt 106, 175 I. Irish V. Horn 117 Irsch V, Irsch 35, 67 Irwin V. State 53 Isler V. Dewey 26 J. Jackson v. Com 230 Jackson v. French 167 Jackson v. Gridley 15, 24 Jackson v. MoClure 84 Jackson v. McVey 178 Jackson v. State 338 Jacobs V. Hester 303 Jacques v. Elmore 143 Jauvin v. Scammond 37 Jefferds v. People 385 Jeffrey v. Com 49 Jenkinson v. State 166 Jennie v. Marble 300 Johnson v. Cochrane 130 Johnson v. Daveme 172 Johnson v. Johnson 183, 193 Johnson v. Spies 100, 137 Johnson v. State 15, 80, 68, 309 Jones V. Brooklyn, etc., Co.. 16, 188, 196 Jones V. Harris 31 Jones V. People 15, 19 Jones V. State 51, 178 Jordan v. State 221 TABLE OP CASES. XIU PAGE Kaleu. EUiott 94, 95 Keator v. Demmick 300, 303 Kerry v. Dimon 149 Kellenberger v. People 321 Keller v. West., etc., Mfg. Co.. 77 Kelley i;. Levy 189 Kellogg, iJe 106 Kelly V. BuiToughs 91, 157 Kelsey v. Cooly 83 KendaU u. Gray 186 KendaUu May 11, 13 Kendall v. State 314 Keone v. People 44 Kerr v. MoGuire 156 Ketcham v. Holden 84, 99 Ketchy t;. State 36 King V. Barrett 180 King «. State 337 Kip, Matter of 34 Kirby t>. State 345 Kitchen v. Taylor 110 Klock V. Brennan 78 Knight V. Cunningham 117 Kohler v. Adler 106 Kolasky v. Miohels 107 Kommisky v. Kommisky 108 Kraushaar v. Meyer 136 L. Lambert v. State 218 Landy, Re 149 Lane v. Lane. .75, 77, 135, 137, 150 La Rose v. Com 318 Lasak, Re 74 Lashear v. Croissant 81 Lathrop v. Hopkins 81 Lawson v. Jones 163 Lawton v. Sayles. 96 Le Baron, Re 67, 75 Le Beau v. People 47 Lee V. Henderson 37 Lee t). Dill 149 Lee V. State 48, 49 Lerche v. Brasher 110 Levin v. Russee 5, 153, 154 Lewis, Be 81 PAGE Lewis V. Lewis > 149 Lewis V. Merritt 94, 141, 159 Lindsay v. People 49 Lines v. State 300, 303 Livingston v. Harris 36 Livingston v. Kiersted..lO, 13, 36 Lobdell V. Lobdell 67, 137, 138 Lockwood V. House 170 Loder v. Whelpley . . . .151, 161, 191 Logston V. State 17 Lohman v. People 37 Lopez V. State 331 Loveridge v. Hill 170 Lowenstein's Will, Re 183 Lucre v. State 49 Luetchford v. Lord 85 Lumpkins v. State 53 Lyon V. Rioker 159 Lyon V. Snyder 136 Lyon V. Whittaker 133 M. Macdonald v. Woodbury 163 Maclay v. Robinson 114 Mackay, Re 149 Makesy v. People 58 MandeviQe v. Guernsey 169 Manning v. Schmidt 95 March v. Ludlum 166 Markell v. Benson 157, 158 Marler v. State 50 Marsh v. Brown 68, 118, 157 Marsh v. Howe 168 Marsh v. Ne-ha-sa-ne Park 133, 137 Marx V. Man. R. R. Co 196 Mason v. Mason 95 Mason v. Prendergast 103, 135 Mason v. Williams 165, 191 Massey v. State 338 Masterton, Re 68 Masterton v. Bryce 180 Matteson v. N. Y. C, etc., R. R. Co 306 Matthews v. Com 195 Maverick v. Marvel 104, 140 Maynard v. Vinton 301 XIV TABLE OP CASES. PAGE MayoiJ. Mayo 34, 35 McArthar's Will, Be 105 McCabe v. Com 337 McCarthy, Re 178, 179 McCarthy v. McCarthy 208 McClure v. Goodenough 170 McCormick v. N. & A. Assoc. . 190 McCreery v. Ghormley 33 McCutoheon v. Fique 27 McDonald v. Woodbury 129 McElroy v. Sav. Bank 114 McElroy v. State 225 McGuire v. People 15 Mclntire v. Costello 171 McKenna, Be 109 McKenna v. Bolger 142 McKensie v. State 48 McKinney v. Grand St., etc., E. E. Co 194 McLaughlan, Be 131 McLellan v. Longfellow 166 McMillan ■«. Stern 90 McMurray v. McMurray 85 MoMurray v. Innis 144 McNail V. Leigler 206 McNeaney, Be 89 McQueen's Estate 189 McTavish v. Denning 177 Meloy V. State 221 Merchants, Estate of. Be 112 Merrill v. Brunner 96 Merritt v. Campbell 160 Metzer v. State 2, 181, 251 Meyers v. Dorman 169 Meyers v. State 48 Milan v. State 166 Miller v. Adkins 160 Miller v. Davis 92, 181, 189 Miller v. McGucken 162 Miller v. Montgomery.. 70, 155, 156 Miller v. People 221 Miller v. State 220 Mills V. Kernochan 156 Mills V. Mills 102, 140 Milman v. Tusker 35 Minier v. Minier 205 Mitchell's Case 170 Mitchel, Estate of 173, 174 PAGE Moden v. Cattenoch 23 Molter, Estate of 132, 138 Montgomery, Matter of 67 Montgomery v. Pickering 200 Moore u. Oviatt 68, 71 Moore v. Patterson 202 Moore v. Tracey 58 Moore v. Wingate 200 Morehouse v. Morehouse 163 Morgan v. Hyatt 206 Morris v. Cain 169 Morris v. N. Y., etc., E. E. Co. 195 Mortimer t). Chambers 90 Mosner v. EawUn 107, 108 Mosner v. State 17 Mott V. Cons. Ice Co 189 Moyer v. Moyer 123 Mulford V. MuUer 175, 176 MuUins V. Chickering 101 Mulqueen v. DuflEy 189 Murphy, Be 193 Murphy v. N. C, etc., E. E. Co. 163 Murphy v. People 223, 237, 239 Murphy v. State 226 Murray v. Fox 77 Murray v. Milney 201 Murray v. State 250, 353 Musgrove, Mg,tter of 67 Mut. L. Ins. Co. V. Casey 174 Myer v. Dorman 169 Myer v. Hunt 139 Nat. Bank v. Jones 88 Nat. Trust Co. v. Gleason 30 Nay V. Curley 96 Neal V. Cunningham 35 Nearpass v. Gilman 84, 91 Neely v. State 331 Newman v. People 43 Newman v. State 228 Newton v. Ladd 20 Nelson v. State 225 N. Y. C, etc., R. E. Co., Be. 135, 186 N. Y. Smelt., etc., Co. v. Lieb. 83 Nicholson v. State 218, 248 TABLE OF CASES. XV PAGE Nomack v. State 338 Norfolk V. Gaylord , 35 Numrich v. Sup. Lodge 190 O. O'Brien et al. v. Weiler. . . .127, 151, 161 O'Brien v. People 237 O'Connor v. Majorbanks 303 Odell V. Kapper 24 Odell V. Solomon 163 Olcott V. Kohlsaat 135 Oliver v. Freleigh 97, 106 O'Neil, Re 149, 151, 178, 191 Orchmund v. Barker 4 O'Eourke, iJe 73 Owen V. State 318 P. Paige, iJe 70, 98 Palmer, Re 104 Palmateer, Re 150 Parker v. Carter 166, 167 Parks V. Andrews 143 Parkhurst v. Berdell 301 Parhan v. Moran 120, 131 Parsons v. State 48 Patten v. N. L., etc., Assoc... . 186 Patten v. U. L., etc., Assoc. . 187 Patterson v. Copeland 134 Patterson v. N. Y., etc., R. R. Co 205 Patton V. Moore 172 Patton V. Wilson 202 Payne v. Kerr 132 Pearsall v. Elmer 169, 178, 180 Pease v. Barnett 143 People u. Ah Ki 220 People V. Barrie 59, 333 People V. Barker 167, 188, 350 People V. Bartholp 305 People V. Bennett 316 People V. Blakelee 165 People V. Bliven 59 People V. Brower 188 People V. Brown 81, 34, 47 PAGE People 633 re?.«. Burgman.. 163, 163 People V. Buchanan 177 People V. Bulanger 61 People V. Carpenter 309 People V. Casey 80, 43, 45, 47 People V. Chacon 237 People V. Chaplain 31, 313 People V. Christian 56 People V. Chapleau 244 People V. Clark 47 People V. Cleveland 58 People V. Clough 53 People V. Conroy 43, 44 People V. Cook 5 People V. Costello 48 People V. Courtney. .43, 43, 53, 56, 57 People V. Cox 337, 240 People V. Crapo 31, 47, 48 People V. Davis 53 People V. Deacons 237, 240 People V. De Soto 249 People V. Druse. .318, 235, 236, 337 People V. EUiott 56, 57 People V. Emerson 60 People ■;;. Evans 53 People V. Everhardt 58 People V. Everson 55 People iJ. Farrell 59, 60 People V. Fitzpatrick 209 People ex rel. Taylor v. Forbes. 38 People V. Fox 231, 249, 250 People V. Fresham 35 People V. Gallager 178 People V. Garnett 48 People V. Gastro 239 People V. Gates 198 People V. Gillabert 313 People V. Gilon 165 People V. Gindici 43 People V. Harris 190 People V. Hendrickson 245 People V. Hess 169 People V. Hoch 185 People V. Hoogkerk 56 People V. Houselman 61 People V. Hovey 44 People V. Hoy Ten 220 XVI TABLE OF CASES. PAGE People V. Irving 30, 46 People V. Jaehne 237 People V. James 45, 46 People V. Johnson 222 People V. Kelly.. . ; 245, 247 People V. Kerr 56 People V. Kurtz. .217, 219, 229, 249, 250 People V. Langtree 50 People V. Linsey 16 People V. Macelemay 241 People V. Mahoney 53 People V. Mananson 85 People V. Martinez 243 People V. Master 44 People V. McCallam. . . .56, 212, 222 People u. McGee 9, 26 People V. McGloin 29, 223, 244 People V. MoMahon. . .218, 237, 242, 243, 245, 246, 247 People V. McNair 14 People V. Mercein 209 People V. Minisci 214 People V. Moett , 43 People V. Mondon 212, 218, 241-246 People V. Murphy 185, 193, 241 People V. Noelke 46, 47, 60 People V. Northrup 209 People V. O'Brien 53 People V. Ogle 54, 59 People ex rel. Phelps v. Oyer and Terminer 37, 44 People V. O'Neil 29, 49, 56, 228, 231 People V. Palmer 245 People ex rel. v. Pascal 30 People V. PenhoUow 215, 245 People V. Perrotti 37 People V. Petmecky 208 People V. Phillips 218 People V. Plath 55 People V. Porton 218 People V. Rioker 56 People V. Ring 56 People ex rel. Brugman v. Ris- ley .-.. 245 People V. Rogers 287, 238 PAQi; People V. Ross 12 People V. Ryland 56 People V. Satterlee 30 People V. Schuyler. . . .182, 186, 190, 196 People u. Sharp 39, 56 People V. Sheriff 174 People V. Sherman 56 People V. Singer 219 People V. Sliney 186 People V. Smith 17, 59, 60, 221 People V. Stewart 168 People V. Sweeny 44 People V. Spencer 40 People «J. Stott 246 People V. Stout 184 People V. Teachout 241, 247 People V. Thayer 241 People V. Thompson 53, 56 People V. Thomas 214, 223 People V. Thoms 219 People V. Wayman 56 People V. Wentworth. 208 People V. Wentz. .218, 223, 226, 230, 288, 241 People V. Whipple 48 People V. Wiley 58 People V. Wolcott. . . .226, 227, 228, 233 People V. Wood 209 People V. Vedder 59 People V. Yeaton 237 Peck V. Williams 174 Perkins v. State 230 Perry v. People 31 Perry's Case 22 Peters v. Peters 107 Peterson v. State 15, 19, 20 Petmecky v. People 200 Petrie v. Petrie 125 Pettit V. Geesler 94, 97, 158 Pfohe, lie 113 Phelin v. Kenderdine 33, 36 Piokstay v. Starr 115 Pierson v. People 190 Pierson v. Steortz 166 Pike's Case 18 Pillow V. Thomas 200, 203 TABLE OP CASES. XVll PAGE Pinney V. Orth. . .130, 140, 141, 159 Pinkard v. State 35 Plane Mfg. Co. •u.Trawley.. 168, 169 Platner v. Platner 84, 314 Pleasant v. State 37 Pollock V. Pollock 54 Pool «. Perrott 33 Pope V. Allen 133 Porter v. Dunn 113, 136 Porter v. State 338, 330 Potter, Be 148 Potts V. Mayor 90, 160 Poucher v. Scott 75, 119 Powell V. Miirphy 119 Pratt V. Delavan 203 Pratt «;. Elkins 84 Price V. Brown 147 Price V. Price 124 Price V. State 218, 335, 236 Prouty V. Eaton 175 Purdy, JRe, v. Stewart 67 Pursell V. Fry 112 Q. Queen v. People 42 Queen's Case 38 Queen's Estate 99, 110 Quinby v. Strauss 153 E. R V. Luffe 301 R V. Beading 301 Eamscar, Re 245 Rand v. Grote 72 RatclifE V. Wales 302, 308 Raubitschek v. Blank 103 Real V. People 314, 215 Record v. Saratoga 193 Rector v. Com 318 Redfield «. Redfield 74 Redfield v. Stitt 91, 143 Redmond v. Ind., etc., Assoc. 187 Reeve v. Crosby 131 Reever v. Herr 300 Reg V. Guthridge 26 RegtJ. Megson 26 2 Reg U.Owen 347 Reg V. Pearce 309 Reg V. Taylor 309 Reg V. Whalen 349 Renihan v. Dennin. . . .168, 188, 185 Resignee v. Mason 107 Eeynell v. Sprye 182 Rex V. Azire 309 Rex V. Brazier 15, 18 Rex V. Burley 331, 336 Rex V. Carrington 386 Rex V. Castlehaven 209 Rex V. Cleeves 230 Rex V. Davis 243 Rex V. Garbett 35 Rex V. Gilham 197 Rex V. GriiBn 198 Rex u. Harding 335 Rex V. Hearn 332 Rexi;. HiU 11, 13 Rexu. Lewis 243, 347 Rex V. Moore 331 Rex V. Mullins 60 Rex V. Nookes 54 Rex V. Perkins 19 Rex V. Powell 15 Rex V. Spark 197 Rex V. Rudd 331 Rex V. Taylor 23 Rex V. Webb 346 Rex U.White 19, 33 Rex V. Whitehead 6 Rhodes v. Selin 173 Rice V. Mottley 139, 163 Richardson v. Warner 92 Richmond v. State 33, 37 Riggs V. Am. H. M. Soc 79 Rixu. Hunt 101, 109,114, 141 Rizzolo V. Com 237 Robbins v. Pultz 160 Robinson v. Chad wick 200 Robinson v. Kemp 178 Robb's Appeal 202 Rochester City Bank v. Suy- dam 168 Rockwell V. Peck 83 Rodlnan v. Hoop 117 Rogers, lie 114 XVIU TABLE OF CASKS. Rogers v. Dave 172 Rogers v. Decker 36 Rogers v. MoGuire 158 Rogers v. Rogers 157, 158 Roland v. Pinckney 138 Root V. Wright 166, 172 Rose V. Wakeman 35 Rosenberg v. Rosenberg 173 Ross V. Harden 109, 133, 124 Ross V. Ross 92, 110 Ross V. State 337 Rousseau v. Bleau 168, 170, 174 Rufer V. State 249 RuloflE t;. People 42 Rushton's Case 26 Rutherford v. Com 220 Ryan v. People 31, 47 S. Sacia v. Decker 39, 155 Sage V. Dorr Ill Salander v. People 48 Sallade v. Gerlach 91 Sandberger v. Gorham 167 Sandford v. Frost 173 Sands v. Sparling 82 Sanford v. Emthorp..69, 100, 153, 153 Sanford v. Sanford 160 Sarah v. State 220 Saratoga Co. Bank v. Leach. . . 88 Satterlee v. Bliss 166 Saunders v. People 68 Saunders u. State 44, 45 Savercool v. Wilsey 82, 155 Say V. State 223 Scanlon v. Doherty 173 Scherrer, Estate of 151 Schoonmaker v. Walford. . . .6, 79, 148, 151, 152, 154 Schufeldt V. Watrous 73, 174 Scott V. Hooper 31 Scott i;. Scott 105 Selden v. State 173 Semple v. Frost 167 Severn v, Nat. Bank 67,- 103 Sharon v. Sharon 168 Sheldon v. Sheldon 96, 174 Sheridan v. Houghton 179 Sherlock v. Whitney 21 Sherman v. Kaufman 68 Sherman v. Pickens 80 Sherman v. Scott. .68, 123, 173, 175 Shirley v. Bennett 83, 98 Short V. State 37 ShurtcliflE v. Willard 6 Sibley v. Waffle 166, 173 Sigelu. Sigel 207 Simmons v. Havens 127, 134 Simmons v. Healster 33 Simmons v. State 249 Simon v. Cloffy 149 Simon's Case 203 Simons v. State 30, 228, 230 Simpson, Re Ill Sims V. Sims 30 Sloan V. N. Y., etc., R. R. Co.. 187 Smith, Re 75, 77, 138, 149, 150 Smith V. Christopher 157 Smith V. Coffin 31, 34 Smith V. Crego 175, 180 Smith V. Cross 85, 188 Smith t;. Hathorn 87 Smith V. Hazard 85 Smith V. Meaghan 80, 84 Smith V. O'Brien 308 Smith V. Sergeant 90 Smith V. Smith 165, 175 Smith V. State 221, 326 Smith V. Ulman 119, 123 Smith, Will of 133 Snyder v. Natims 26 Snyder v. Sherman 67, 77, 151 Somerville v. Crook 110, 153 Sommer v. Oppenheim 171 Southard v. Rexford 34 Southwicku. Southwick..205, 206 Spears v. Ohio 331 Speers v. Snell 15 Speiden v. State 62 Spicer v. Spioer 147 Spicer v. State 283 Spiegel V. Hays 43 SjDies V. People 44, 45 Spradling v. Conway 303 TABLE OP CASES. XIX Sprague v. Swift 87 Stallings v. Georgia 250 Stanley v. Van Alystyne 140 Stanleys Whitney. ..138, 139, 142 State V. Anderson. . . .320, 223, 349 State V. Avery 214 State «. Bayne 53 State V. Betsall 53 Statew. Blake 83, 35 State V. Bostwick 318, 331 State V. Boughton 246 State V. Brockman 318 State V. Brooks 335, 236 State V. Brown 215, 252 State V. Buffington 203, 204 State V. Carlisle 237 State V. Carrick 218, 227 State r. Carter 203 State V. Christopher 237 State V. Chyo Chiack 52 State V. Cooper 21 State V. Corson 46 State V. Cousins 44 State V. Cowan 330 State V. Crowley 48 State V. Crowson 234 State V. Dammeray 6 State V. Davidson 310 State V. Davis 209, 349 State V. Dawson 166, 170 State V. Day 318, 331, 236, 338 State V. Demareste 237, 239 State V. Denis 15 State V. De Wolfe 15, 25 State D.Dietz 48 State V. Dougherty 14, 15 State V. Drake 252 State V. Dyer 209 State V. Edwards 15, 19 State V. Fisher 35 State V. Foster '. 317 State V. Freeman 318 State V. Garvey 343, 246, 348 State V. George 288 State V. Gigher 49 State V. Guild 218, 331, 353 State V. Gossett 218 Stateu Grant 320 PAGE State V. Guy 220, 288 State V. Harper 24 State V. Hazelton 166 State V. Hogan. . .219, 220, 226, 286 State r. Holland 53 State V. Hopkins.. 218, 220, 236, 235 State V. Hoyer 53 State V. Hoyt 203 States. Huff 44, 45 State V. Huson 214 State V. Isaacs 248 State V. Jackson 15 State V. Jansen 61 State V. Johnson 228, 229 State V. Jones 319, 330, 336, 236 State tJ.K 85 States. Kelly 13 State V. Kinder 249, 250 State V. Kirby 233 State V. La Blanc 18 State V. Lamb 245 State V. Lattin 19 State v. Litchfield 68 State V. Lowhome 226, 388 State V. Marshall 83, 37 State V. McCord 200 State t;. MoKean 59, 60 State V. McLaughlin 237 State V. McLean 236 State V. Merchant 176 State V. Meyers 249 State V. Monnan 250 State V. Mora 18 State V. Moran 231 State V. Moren 15 State V. Mock 215 State V. Moon 58 State V. Motley 220 State V. Murphy 209 State u. Nelson 221 State V. Nichols 35 State V. Ober 44 State V. O'Brien 49 State V. Olin 33 State V. Patterson 223, 237 State V. Pattie * 49 State V. Fattier 53 State V. Petty 21 XX TABLE OF OASES. PAGE State V. Phelps. . .326, 238, 235, 338 State V. Potter 318 State V. Pratt 214 State V. Revels 231, 235, 334 State V. Bidgley 30 State V. Rlgsby 218 State V. Ritchie 14, 15, 20 State V. Roberts 48 State V. Roric 245 State V. Rosier 44 State V. Rush. . . .235, 237, 240, 251 State V. Sanders 224 State V. Scanlon 15, 19 State V. Schlegel 53 State V. Simons 218, 220, 336 State V. Sopher 318, 239 State V. Squires 318 State V. Staley 335 State V. Stanley 53 State V. Stebbins 53 State V. Stinson 23 State V. Suggs 237 State V. Symonds 333 State ?;. Talbot 33 State V. Taylor 341 State V. Townsend 24 State V. Underwood 333 State V. "Walker 43, 331 State V. Washington 251 State V. Watson 30 State V. Weddington 42 State v. WeUes 56 State V. Wentworth 45 State Z). White 181 State V. Whittier 15, 19 State V. Williamson 54 States. WilUs 52 State w. Wilson 318 State V. Wintzgerode 333 State W.York 233 Stanbro v. Hopkins 23 Stanley v. Whitney. . .138, 139, 143 Staunton v. Parker. . .179, 180, 191 Steele v. Ward . . .69, 150, 151, 192 Steflfens v. Steflfens 307 Stein V. Bowman 303 Stephens v. Cornell. . . .67, 106, 136 Stephens v. State 321 PAGE Stevens v. Brennan 153 Stevens v. Stevens 306 Stewart v. Johnson 201 Stewart v. Patterson 145 Stewart v. Turner 34 Stewart, WiU of 149 Stinson v. State 19 Stocking V. State 53 Stover V. People 53 Stowell V. Am. Relief Assoc. . 182, 191 Strong v. Dean 68, 91 Strough V. Wilder 100, 134 Stuart V. Patterson 145 Summers v. State 197 Sutton V. Johnson 232 Swan V. Morgan 73, 131, 138 Sweet V. Low 157 T. Taylor v. Com 214 Taylor v. Jennings 34 Taylor v. Meldrum 104 Taylor v. Walsh Ill Taylors. Wood 34 Teachout v. People 243 Territory v. Neligh 53 Theallv. Steitz 128 Thompson's Case 249 Thompson v. Com 319 Tilton V. Ormsbee 68, 100 Timon v. Claffey 183 Tipton V. State 248 Titus V. O'Connor 129, 136 Todd V. Dibble 68 Todd V. Vaughn 157 Tomlinson v. Seifert 146 Tooley v. Bacon. .105, 140, 143, 145, 153 Torrington, Re 161 Totteni;.U.S 198 Tucker v. State 209 TuUis i;. State 50 Tunson v. Salisbury 147 Turner v. State 209 Tuttle V. Gvidley 24 Tusch V. German Bank. . . . 115, 116 TABLE OP CASES. XXI PAGE Train V. State 30 Treanor v. Man. R. Co 196 Trimmer v. Trimmer 158 Trustees, etc., v. Moore 59 Trustees, etc., v. O'Malley. .60, 61 IT. Underbill v. Nichols 110, 137 XJpton V. State 53 U. S. V. Barlow 348 U. S. V. Cottingham 59, 64 U. S. «. Felton 209 XJ. S. ■«. Hanway 49 U. S. V. Hinz 50, 54 U. S. V. Humphreys 320 U. S. «. Hunter 49 U. S. V. Jones 200 U. S. v. Kennedy 21 TJ. S. t). Kirkwood 230 U.S. v. Moore 59, 64 U. S. «. Moses 37 U. S.v. Prior 248 U. S. V. Richards 230 U. S. V. Slenker 64 U. S. V. Smallwood 209 U.S.iJ. Stone 250 U. S. i;. Troax 52 U. S. V. "Warden 353 U. S. V. Whittier 59, 63, 64 U. S. V. Wilson 348 Vail'y. Craig 162 Valensin v. Valensin 197 Vandeveer v. Vandeveer 101 Van Allen v. Gordon 196 Van Alystyne v. Smith 174 Van Deusen v. Sweet 13 Van Gilder v. Van Gilder 93 Van Orman v. Van Orman 191 Van Tuyl v. Van Tuyl 205 Van Veohten v. Van Vechten. 104, 144 Vamum v. Hart 162 Vaughan v. Com 233 Veitus V. Hagge 6 ViaU V. Iieavens 147 Vinant v. State 15, 17 Volkavitoh v. Com 250 Voorhis, Be 77, 132 W. Waohter,iJe 114, 115 Wade V. State 15 Wadsworth v. Heermans 144 Wakefield u Ross 31 Waldron, Estate of 134 Walker v. Sanborn 200, 203 Walker v. State 331, 246 Wallace v. Strauss 68, 70 Walsh V. McArdle 139 Ward V. HoUnes 87 Ward V. Plato 158 Ward V. Sharp 34 WarwickshaU's Case 216 Warner v. Lucas 33 Warner v. Pres. P. Co 201, 202 Warner v. State 15, 18 Warrenu State 220 Washburn v. People 15, 18 Washington v. Bedford 201 Water house v. Gilman 86 Waver v. Waver 104 Wehrkamp v. WUlett 205 Westover v. ^tna h. I. Co. 179, 187 Wheelan v. Yoston 115 Wheeler v. Hunt 96 Wheelock v. Cuyler 134 Whelpley v. Loder 121, 180 Whepp V. State 209, 210 Whiter. State 176 White V. White 131, 135, 156 Whitehead v. Smith 86 Whiting V. Barney 175 Whiting's Case 243 Whitman v. Foley 84 Wilcox V. Corwin 87 Wilcox V. Bodge 155 Wilkins v. Baker 72, 89 Wilkins v. English 119 Wilkinson v. Baldwin 203 Willett V. People 338, 330, 249 Williams v, Davis 109, 140 xxu TABLE OP CASES. PAGE WiUiams v. Fitch 171 Williams v. Johnson 188 Williams v. Sergeant 153 Williams v. State 59, 348 Wilson, Be 113, 150 Wilson V. Clancey 173 Wilson V. Lowe 91 Wilson V. Mimeoz 83 Wilson V. Rastell 304 Wilson V. Eeynolds 86 Wilson V. State. . 173, 333, 345, 348 WUtsie u. Wiltsie 80 Wing V. Bliss 104. Wise V. Cowles 186 Witlock, JRe 173, 174 Witthaus V. Shaack 69, 136 Woburn v. Henshaw 180 Wolfe V. Com 337 Wolfe V. Goulard 38 Wolfe t;. Lynch 83 Womaok v. State . 331 Wood V. Chetwood 303, 304 Wood, Est. of 178 Wood V. Holmes 160 Wood D. State 343 PAGB Woodford v. People 337 Woodrick v. Woodrick 304 Woodruff V. Hurson 175 Woods V. GledhiU 308 Wooster v. Booth 134 Worthington v. Scribner 34 Wottrich V. Freeman 208 Wright V. Holgate 201 Wright y. State 61 T. Yates V. Olmsted 166 Yates V. Root 113 Yates V. State 318 Youke -y. State 44, 46 Young V. Com 233 Young V. Oilman 200 Young V. Luce 117 Yoimgs u Youngs 85, 37 Z. Zinke, iJe 83, 99 Zinke v. Zinke 143, 146 THE COMPETENCY AND EIGHTS OP WITNESSES. CHAPTEE I. GENERAL PROVISIONS AS TO THE RIGHTS AND COMPETENCY OP WITNESSES. Sec. 1. Preliminary. 2. Oath of. 3. Mode of taking. 4. Competency of. 5. Incompetency in general. 6. Idiots and lunatics. 7. Infancy. 8. Questions of competency for the court. 9. Defect of religious belief. 10. Unbelief, how proved. 11. Physical incapacity. 13. Convict or infamous person. § 1. rreliminary. The mode of compelling the at- tendance of a witness at a trial or proceeding, together with the means employed to secure upon such investi- gation the presence of all papers or documents which may be required, and which are at the time in the pos- session or custody of parties other than the person desiring them, are all now regulated by statute, and are too well known and familiar to every practitioner to render a dis- cussion upon that topic necessary in this work. Neither is it within our present scope to treat upon the power of the court to punish witnesses for contempt, what conduct constitutes a contempt of court in regard to the disobedi- ■2 THE COMPETENCY AND EIGHTS OP WITNESSES. •ence of its mandates, nor the fees which witnesses are ■entitled to, since they all properly come within well- known statutory provisions. The object of this work is to treat of the duties, liabilities and privileges of a wit- ness after he has finally appeared in court, in obedience to a properly authorized mandate of a court of competent jurisdiction, — both in regard to his competency, charac- ter, testimony, and the manner and mode of extracting it, after he has been deemed properly qualified to testify, and also to discuss those rules which govern him and the court, and relate to and regulate his testimony and the manner of examination. The mode of perpetuating testimony, or of using upon a subsequent trial the evidence which was given upon the prior trial, by a witness since deceased, or whose attendance cannot be obtained, will be hereafter studied, but our first object is only the living witness, the witness actually present and ready to go upon the stand. It is the witness in open court, and his relations to and stand- ing with regard to the court, jury and parties, that first demands our attention. § 2. The oath. The first pre-requisite exacted from every person who goes upon the stand in a legal investi- gation for the purpose of giving his testimony in that case in which he is called, is that he must first be sworn, •as no evidence will be allowed to go to the court or jury unless it comes to them under the sanctity of an oath. The rule is universal, is of great antiquity and should be subject to no exceptions. In New York State an infant under twelve is permitted to give evidence without tak- ing an oath, but other evidence must be forthcoming to ■ensure a conviction. Laws 1892 (N. Y.), chap. 279, § 1. The definition of an oath has been variously given by GENERAL PROVISIONS. 6 different jurists, one author holding that " an oath is an application of the religious sanction, calling the Deity to witness in aid of a declaration of man." Best on Ev. § 57. This definition hardly applies in its entirety at the present day, since the religious character has been so largely withdrawn from it ; now witnesses are permitted to reject the Bible and refuse to take their oath upon it, and merely affirm. It has also been stated to be "a solemn invocation of the vengeance of the Deity upon the witness if he does not declare the whole truth so far as he knows it. " 1 Starkie, Ev. 22. This last definition seems to express too strongly the meaning attached to the taking of an oath, and carries its significance to a much greater intent than the act admits of. The best definition, and one most in harmony with the pxactice generally prevalent to-day in our courts, is that "an oath is an outward pledge or acknowledgment given by the person taking it, that his attestation or promise is made under an immediate sense of his responsibility to Grod." Bouv. p. 249. This seems to embrace all the material and usually received ideas of the meaning at present attaching to this ceremony, and covers equally with its terms the oath which is taken upon the gospels, or where an affirmation is used. § 3. The mode of taking the oath. Formerly the manner in which the oath was administered was deter- mined by no fixed rule, but depended entirely upon the character of the individuals who were offered as wit- nesses, and was varied according to their respective nationalities, beliefs or tenets. The object being to im- pose upon the witness an obligation which would be felt by him to be binding, the manner in which he should take that oath was therefore made to conform to that 4 THE COMPETENCY AND EIGHTS OP WITNESSES. mode deemed most sacred by the religious sect to which the witness belonged. Thus, a Jew was sworn on the Pentateuch or Old Testament, with his head covered. Strange (Eng.), 821, 1113 ; a Mahommedan on the Koran ; 1 Leach, Or. Oas. (Eng.), 54 ; a Gentoo, by touch- ing the foot of a Brahmin or priest of his religion ; Ormichund v. BarJcer, Wills, Oircum. Ev. (Eng.) 549; a Brahmin by taking the hand of a fellow Brahmin ; 1 Car. & M. (Eng.) 248 ; a Ohinaman by breaking a china saucer ; Whart. Or. Ev. § 854 ; a Scotch covenanter or member of the kirk by holding up the hand without kiss- ing the book. In this country these peculiar modes are usually unpractised, and the ceremony is customarily performed by swearing upon the gospels, resting upon them the fingers, while the clerk of the court or some duly authorized person reads the form of the oath, at the conclusion of which the witness promises and kisses the book. Oode Civ. Pro. §§ 845, 846, 847. The statutes of the various states regulate the way in which the witness shall be sworn, and in many of them it is left optional with the witness either to swear upon the gospels or to aflfirra. The courts, however, seem to possess the power, when they are satisfied that the witness deems some other mode of swearing more binding than laying his hands upon the gospels and kissing them, of requiring the wit- ness to be sworn in that different manner. N. Y. Oode Civ. Pro. § 848. Also, the court is permitted, when it occurs that the witness is a person who does not believe in the Christian religion, but in some other, to have him sworn according to the peculiar ceremonies, by which, according to his religion, he is under a solemn obligation to tell the truth, or in which the oath is usually admin- istered. Oode Civ. Pro. § 849. Also the court can ask a GENERAL PROVISION'S. 5 witness what peculiar ceremonies in taking an oath he deems the most binding or obligatory upon him. Code Civ. Pro. § 850. It has been held, that where an oath was irregularly administered upon a book other than the holy evangelists, but the person taking it supposed it to be the Bible, it was a valid oath. People v. Cook, 8 N. Y. 67 ; aff. 14 Barb. 259. § 4. Who are competent. This section does not deal with the competency of witnesses as affected by section 829 of the Code of Civil Procedure, that branch of the subject being elsewhere discussed in the chapter devoted to a consideration of that section of the Code. The presumption that a witness who has been sworn as such is fully and in every way competent to testify, always exists in his favor until overthrown by proof that the contrary is the fact. The law declares it to be the duty of the party who is aware of such incompetency to make his knowledge known at once, and not lie quietly by, being willing to allow such witness to testify, and take advantage of all testimony which tends to the in- jury of the adverse party or which is favorable to his own cause, and only raise his objections when it appears that the testimony is beginning to benefit his adversary. The party who pursues this course is not allowed to reap such advantages as might have accrued, had he made known the disqualifications of the witness at the proper time. Hoyt v. Soyt, 112 N. Y. 493 ; Levin v. Bussel, 42 N. Y. 251 ; Cross v. Smith, 85 Hun, 49 ; 32 Supp. 621. This rule does not of course apply in those cases where the disqualifications were not known, or the party was unaware of the real nature of the incompetency until after the examination had progressed, and had imme- diately upon becoming fully cognizant of the true state of 6 THE COMPETENCY AND RIGHTS OF "WITNESSES. the case made his objections known. State v. Damme- ray, 48 Me. 327 ; Veiths v. Sagge, 8 Iowa, 163 ; Shurtleff x.Willard, 19 Pick. (Mass.) 202 ; Andre v. Brodman, 13 Md. 241 ; Howser v. Commonwealth, 51 Penn. St. 332 ; Bex V. Whitehead (Eng.), 10 Cox, 234. It has been held, however, that where the objection has been once properly made, it need not be repeated as a ground of objection to subsequent testimony by the same witness. Carlson v. Winterson, 147 N. Y. 652 ; 71 St. Eep. 263 ; aff. 10 Misc. 388 ; 31 Supp. 430 ; 64 St. Eep. 113 ; ITobart v. Jlobart, 62 N. Y. 80 ; Schoonmaker V. Wolford, 20 Hun, 166. There is a great difference between competency and credibility, and those defects which affect one have no bearing upon the other. Thus, while the testimony of a witness depends for credibility not only upon the char- acter of the medium through which it comes, but upon the other, and generally more common, grounds of his complete understanding or knowledge of the subject upon which he testifies, the time and opportunity afforded to him of observing the facts concerning which he gives his evidence, the amount of attention he paid to the occurrences at the time, and the degree of remembrance of the facts which remains with him at the time he is testifying. On the other hand, these matters have no bearing upon the question of the competency of the wit- ness, since that point does not depend upon such facts at all. As long as it appears that the witness is clothed in his right mind and the full possession of his developed mental faculties, and gives evidence of those things which he saw, he is competent to testify upon those points unless he is rendered incompetent by reason of some disqualifications of a personal nature. Upon the GENERAL PKOVISIONS. T question of competency, it is proper to observe that the legal rule which always requires the production of the best evidence the case is capable of affording must not be taken in a too literal sense. That is to say, the rule does not apply to the extent that the better of two men who are acquainted with the facts should be produced. That is because of two men who witnessed an occur- rence, one is able to give much more information in regard thereto than the other, that fact does not prevent the witness who remembers or knows the least thereof from being perfectly competent, notwithstanding, in a strictly literal sense, his is not the best evidence. In the same way one who has heard admissions which a party has made is a competent witness in that respect, although both the person who made them and he to whom they were made are the best witnesses thereof and are not called. § 5. Incompetency. The determination of the ques- tion whether or not the witness is competent is a matter to be determined by the court alone, since it comes ex- clusively within its province. The incompetency which might affect a witness may be divided or distinguished as, first, an apparent incom- petency ; as in those cases where the person taking the stand is seen to be of too tender years, or is visibly in a condition of inebriety or is evidently mentally incapac- itated to give testimony ; second, a latent incompetency. The latter form of incompetency refers to all cases, where the defect can only be proved by evidence of some nature, and the question only arises in legal proceedings, upon some objection to the witness being interposed, which is based upon this ground. This is also to be de- termined by the trial court, after a preliminary examina- 8 THE COMPETENCY AND EIGHTS OP WITNESSES. tion by it of the person excepted to, which is called an examination on his voir dire, and upon which the court must make careful inquiry into the grounds of the ob- jections which are raised. There are at present, as a rule, but two recognized causes which render a witness incompetent at all times and under all circumstances, and these are, first, the mental unsoundness of the witness at the time he is called upon to give his testimony, and the other is the lack of a suflBcient degree of requisite understanding by reason of extreme youth. There are other grounds of incompetency, which are treated of hereafter, but they are not per se such defects as exclude absolutely, but only exert such force under certain circumstances, while, by reason of a different condition of facts, the same per- sons may be perfectly competent. The incompetency relating to the former class may be termed personal, while that applied to the latter might be called con- ditional. § 6. Idiots and lunatics. In regard to that unfortu- nate class of persons who were born with weak or totally deranged mental faculties, as well as those whose minds, once strong and healthy, have become disordered to a dis- qualifying degree, all evidence by them while the cloud rests upon them is excluded, and they are declared to be incompetent as witnesses while in that condition. There is, however, a distinction to be observed in regard to the mental state of an idiot and that of a lunatic : the former is supposed to seldom, if ever, have a lucid interval, but the brain being originally unsound is presumed to always continue so, and therefore the rule seems to be, that an idiot is never competent as a witness, since the mind is considered to be too feeble to safely allow the testimony GENERAL PROVISIONS. 9 of such persons to go to the jury. Coleman v. Com., 25 Gratt. (Va.) 865. Care must be taken, however, not to exclude every one ■who may possess but a weak understanding. That the intellect is weak is not alone a ground for the rejection of the evidence, since, unless the degree of feebleness be of such an extent as to rob the mind of all intelligence, it does not ordinarily totally incapacitate. Thus when an inmate of a poorhouse, a woman of weak intellect, was ravished, and it was desired to have her testimony upon the trial, the court permitted it to be given, through the interpretation of the keeper, upon his showing that she had always been able to com- municate to him, by means of signs, her desires ; that she by such signs could carry on an intelligent conversation with him and could observe and understand occurrences about her. People v. Mc Gee, 1 Den. 19. Insane persons, on the other hand, may not be at all times deprived of the power of reasoning, for it is not an uncommon occurrence for them to have lucid intervals, during which time the mania withdraws from them for a season and leaves the mind in such a condition of free- dom from disease that the witness may be competent to testify concerning such events as fell within his obser- vation and which occurred while he enjoyed such lucid state. It has been held, however, that before such testi- mony can be received it must be made to satisfactorily appear to the court that the mental condition of the wit- ness is, for the time being, in such a state, that he may be termed temporarily sane, otherwise the presumption exists against such competency. Holcomb v. Holcomh, 28 Conn. 177. The fact, however, being that he had been insane^ 10 THE COMPETENCY AKD EIGHTS OP WITNESSES. and from the peculiar nature of the disease it being well known that the liability of again relapsing into his former state is ever present, and does, in the majority of instances, eventually result, must neces- sarily operate to some degree upon the question of the trustworthy character of the testimony he may give. In other words, while the fact that he is subject to fits of mental derangement does not render him incompetent {Campbell v. State, 23 Ala. M), the cir- cumstance that his mind has been disordered, and in all probability will again become so, proves that such a peculiar condition of his intellect exists as to gener- ally operate to impair, to some extent, his credibility. This consideration must be of more moment in some cases than others, and indeed there are cases where it can be said to almost wholly cease to be potent. In all cases, however, the amount of credibility which the testimony of such a witness is entitled to is a question entirely for the jury to determine. Living- ston V. Kiersted, 10 Johns. 362 ; Holcomb v. Holcomb, 28 Conn. 111. There is a species of insanity termed monomania, and the class of persons who are afflicted by this form of derangement are designated as monomaniacs, or persons whose intellects are disordered upon one par- ticular point, or concerning some single subject. The question has arisen, whether such persons are compe- tent to testify upon a trial, where the matters at issue are not in any manner connected with that particular subject upon which it may be said that they are in- sane. Of course upon any proceedings relating in the remotest degree to that which is the object of their mania, there could be no doubt concerning their inca- GENERAL PROVISIONS. 11 pacity, but in regard to the former, it has been argued for admission, and in some cases such testimony has been admitted, upon the ground that their minds be- ing clear upon all other points, they are competent, since the mere fact of incompetency in regard to a matter which is in no wise under discussion should not affect their eligibility as witnesses. This view of the case seems to be generally accepted, and the evi- dence of witnesses of this description permitted to go to the jury. Com. v. Reynolds, cited in 10 Allen (Mass.), 64 ; Kendall v. May, 10 Id. 59 ; Holcomh v. Holcomb, 28 Conn. 181 ; Campbell v. State, 23 Ala. 44 ; Coleman v. Com., 25 Gratt. (Va.) 865 ; Bex v. Hill (Eng.), 5 Cox, C. C. 259. "While, therefore, the courts do not deem it just to reject the testimony of a monomaniac, yet his evidence should be most carefully considered, for the fact can- not be ignored, that the very moment the witness is engaged in giving his testimony his mind is in reality unhinged, is not sound, and he cannot in truth be deemed a sane man. Now, it does not seem to make any material difference upon the subject, whether the mind is diseased upon only one point or upon several ; the true test of credibility is, is the mind deranged at all, or is it in a healthy condition ? If the faculties of the brain are disordered at the time, whether it be upon one subject or upon many, -the testimony cannot be said to come from a man possessing a sound intellect, or to be the expressions of a well-balanced mind. Upon this point it has been well stated by the court before whom such testimony had been adduced that : "The inlets to the understanding may be perfect so far as any human eye can discern ; the moral qualities may 12 THE COMPBTENCT AND EIGHTS OF "WITNESSES. be all healthy and active ; the conscience may be sensi- tive and vigilant, and the memory may be able to per- form its office faithfully, and yet, under the influence of morbid delusions, reason becomes dethroned, false impressions from surrounding objects are received, and the mind becomes an unsafe depository of facts. The force of all human testimony depends as much upon the ability of the witness to observe the facts cor- rectly, as upon his disposition to describe them honestly ; and if the mind of the witness is in such a condition that it cannot accurately observe passing events, and if er- roneous impressions are thereby made upon the tablet of the memory, his story will make but a feeble impres- sion upon the hearer, though it be told with the greatest apparent sincerity." Holcomb v. Holcomb, 28 Conn. 181. Upon a trial, it was sought to use a person as a wit- ness who had at one time been confined in an insane asylum, and who at the time x»f the trial was shown to be a monomaniac, believing that he was possessed of twenty million spirits. The testimony given by the medical witnesses went to establish the fact that, notwithstanding this delusion, he was perfectly capable of giving an accurate account of such transactions as occurred in his presence and under his observation. It also appeared that he under- stood the nature of an oath, and believed in a future state, where a man was rewarded or punished for the acts done by him in this life. The trial court allowed the witness to give his evidence, and that ruling was sus- tained by the higher court. Bex v. Hill (Eng.), 5 Cox, C. C. 259. Where such witnesses are permitted to testify, how- ever, the adverse party has always the right to show GENERAL PROVISIONS. 13 that the witness has been insane, or is subject to insane delusions, for the purpose of impeaching his credibility. Livingston v. Kiersted, 10 Johns. 362 ; State v. Kelly, 57 N. H. 549; Campbell v. State, 23 Ala. M. The fact that an inquisition of lunacy formerly pro- nounced the witness to be insane is a material fact upon the question of competency, and creates prima facie a presumption against him, which must be overthrown by some evidence showing his present capacity, or the court will reject him. Hoyt v. Adee, 3 Lans. 173 ; Van Deusen v. Sweet, 51 N. Y. 378. Yet if it be made to ap- pear that at the time of testifying he is sufficiently sane to understand the nature of the oath he takes, and is conversant with those facts of which he is about to speak, he will be held competent. Kendall v. May, 10 Allen, 63. It is also permitted, where at the time of trial the witness appears to be enjoying a lucid period, and to be rational in his mind, to produce evidence to the effect that at the particular time at issue the witness had exhibited signs denoting mental distress, in order to affect his credibiUty. State v. Kelly, 57 N. H. 549 ; FaircMld v. Bascomb, 35 Vt. 398 ; Holcomb v. Holcomb, 28 Conn. 177. § 7. Infancy. The other absolutely essential requisite which the witness must possess in order to be allowed to testify is that he should have sufficient intellect, or re- ligious training, to understand the nature and meaning of an oath. It is too plain to require argument, that, although a witness may possess every qualification \)f competency, yet if he does not comprehend the nature of the act of taking an oath, and the obligations and respon- sibilities which it carries with it, such lack of knowledge must necessarily put the stamp of incompetency upon 14 THE COMPETENCY AND EIGHTS OF "WITNESSES. him. The most frequent instance in which this question arises, and those in which a just determination of the matter is surrounded oftentimes with the greatest dif- ficulty, is in the case ol children called as witnesses, where the objection to their testifying is based upon the ground that they are too young to understand the trans- actions about which they are called to give their evi- dence, and also, on account of their extreme youth, are unable to appreciate the obligations they take upon them- selves with the oath, or the penalties which swearing falsely entails. It is not possible to lay down any rule as to the age at which an infant can or cannot be presumed to be compe- tent. Generally speaking, an infant over fourteen is sup- posed to possess the necessary degree of competency, but the vast difference which exists in the mental develop- ment among children of the same age, or of different ages, renders the adoption of a rule in this respect im- possible. State V. Ritchie, 28 La. Ann. 327 ; Brown v. State, 2 Tex. App. 115 ; Draper v. Draper, 68 111. 17 ; Flannagan v. State, 25 Ark. 92 ; 1 Barb. Cr. Law, p. 891 ; 1 Greenleaf, § 367 ; Eoscoe, Cr. Ev. 8th Ed. § 175 ; State V. Dougherty, 2 Tenn. 80 ; Commonwealth v. Hutchinson, 19 Mass. 225. Under the age of fourteen years, however, the inference is the other way, and the competency of the child should first be shown upon examination by the court before it should be allowed to assume the functions of a witness. People V. McNair, 21 Wend. 608 ; Carter y. State, 63 Ala. 62 ; State v. Dougherty, 2 Tenn. 80 ; Com. v. Hutchinson, 19 Mass. 225. Where the court is called upon to decide this question, it finds itself confronted by two problems at the outset. GENERAL PROVISIONS. 15 First, not to allow an injustice, by permitting one too immature to be safely depended upon to give accurate testimony, and second, not to permit a cause to fail by a too hasty or technical decision as to its incapacity. The true test by which the competency of a child is determined is as follows : The child must be shown to possess, not only sufficient mental ability to understand the nature of an oath, but it must also appear that it has had such an amount of a religious and other instruction upon that point, that it does so understand the act it per- forms, and in addition that the witness is able to relate accurately all those occurrences which it saw and which are the matters it proposes to give its testimony concern- ing. Jackson v. Gridley, 18 Johns. (N. Y.) 98 ; Common- wealth V. Hill, 14 Mass. 207 ; State v. De Wolfe, 8 Conn. 98 ; State v. Whittier, 21 Me. 341 ; Commonwealth v. Hutchinson, 10 Mass. 225 ; Draper v. Draper, 68 111. 17 ; Commonwealth v. Carey, 2 Brewst. (Pa.) 404 ; McGuire V. People, 44 Mich. 286 ; Washburnv. People, 10 Id. 372 ; State V. Levy, 23 Minn. 104 ; Blachwell v. State, 11 Ind. 196 ; State v. Jackson, 9 Oregon, 457 ; Johnson v. State, 60 Ga. 35 ; Carter v. State, 63 Ala. 52 ; Peterson v. State, 47 Ga. 524 ; Speers v. Snell, 74 N. C. 210 ; State v. Ed- wards, 79 Id. 648 ; State v. Moren, 2 Ala. 275 ; Wadex. State, 60 Id. 164 ; State v. Denis, 19 La. Ann. 119 ; State V. Richie, 28 Id. 327 ; Vincent v. State, 3 Heisk. (Tenn.) 414 ; State v. Scanlon, 58 Mo. 204 ; State v. Doherty, 2 Tenn. 80 ; Brennon v. State, Id. 191 ; Hill v. State, 5 Lea (Tenn.), 725 ; Coony. People, 99111. 368 ; Flannagan V. State, 25 Ark. 92 ; Warner v. State, Id. 447 ; David- son V. State, 39 Tex. 129 ; Brown v. State, 6 Tex. App. 287 ; Reccy. Po2vell(Eng.), 1 Leach, 110 ; Rexy. Brazier, Id. 199. If the preliminary examination does not reveal 16 THE COMPETENCY AND EIGHTS OF WITNESSES. such conditions as existing, the witness must be re- jected, but if they are present the child is a competent witness. Thus where an objection was raised to the competency of the child, she was examined as follows : "Is it a good or bad thing to tell a lie ? " She answered, " A bad thing." " Do you say your prayers ? " "Yes." "What becomes of a person who tells lies ? " " If he tells lies he goes to the wicked fire." The court held the child competent. Beg. V. Holmes (Eng.), 2 F. & F. 788. Also a child six and a half years old, who knew that she would be pun- ished if she told an untruth, was allowed to testify. Agnewv. Brooklyn, etc., Co., 5 Supp. 756; 20 Abb. N. C. 235 ; 13 Civ. Pro. 25 ; llT N. Y. 651. Where a boy eleven years of age testified that he be- lieved in heaven, the home of G-od, and hell, the home of the devil ; that at death the good will go to the former and the bad to the latter ; that it was bad to lie, both in and out of court ; that for the former he would be sent to prison, and for the latter his parents would whip him, he was held competent. Jones v. Brooklyn, etc., Co., 21 St. Eep. 169 ; 3 Supp. 253. It has also been held that a child of nine years of age, who is ignorant of the nature of an oath, or the obliga- tion of a witness, and had never been sworn, is incom- petent, and it is not error for the court to refuse to in- struct him as to the nature and obligation of an oath. Jones V. People, 6 Park, 126. A child of ten years of age, who says that he under- stands that to tell a lie under oath is wrong, and that he may be punished for it, is a competent witness. People V. Linzey, 79 Hun, 23 ; 61 St. Eep. 240 ; 29 Supp. 560. But it has been held that the court may refuse GENERAL PKOVISIONS. 17 to receive the testimony of a child seven years of age. People V. Smith, 86 Hun, 485 ; 33 Supp. 989 ; 67 St. Eep. 670. But a boy of ten, if he understands the nature of an oath, is competent. Moore v. State, 79 Ga. 498. A child who understands he is brought into court to tell the truth, and it is wrong to tell a lie, has sufficient understanding of an oath to be competent. State v. Levy, 23 Minn. 104. Also so held, where a child said she would go to the bad world if she told a lie. Vincent v. State, 3 Heisk. 120. Also, where a child said the bad man would get her. Logston v. State, 3 Id. 414. But where a child said she did not know what the gentleman meant when he held up his hands, she was held to be incompetent in the absence of any subsequent information. Hoist v. State, 23 Tex. App. 1. Also, where upon a trial for murder a child was pro- duced as a witness, and upon objection being raised, it was shown that at the time of the commission of the crime, concerning which she was to give her testimony, she was utterly ignorant of religion, and was utterly without any knowledge of the existence of a future state, and knew nothing whatever concerning the nature or obligations of an oath. It appeared that since the occur- rence she had been visited twice by a clergyman, who, while he had been able to instruct her somewhat in re- gard to the meaning and character of the oath which she was to take, had not been successful in his efforts to instil into her any ideas of a religious nature, so that in re- gard to ignorance of religious matters her condition at the trial was unchanged from her former state. The court rejected her as a witness. 3 Euss. on Cr. 9th Ed. 612. 18 THE COMPETENCY AND EIGHTS OF WITNESSES. Also, where it was sought to use the dying declarations of a child of four years old, it was held incompetent. Pike's Case (Eng.), 3 0. & P. 598. On the other hand, children under seven years of age have been held competent, the credibility of their testi- mony being left to the jury. Com. v. Hutchinson, 10 Mass. 225 ; State v. Mora, 2 Ala. 275 ; Washburn v. Peoj)le, 10 Mich. 372 ; State v. Le Blanc, Mill (S. C), 354 ; Oivens v. Com., 29 Graft. (Va.) 835 ; Flannagan V. State, 25 Ark. 92 ; Com. v. Carey, 2 Brewst. 404 ; Warner v. State, Id. 447. There is also one case where a child of the age af five years was allowed to testify upon a trial. Bex v. Brazier (Eng.), 1 Leach, 199. Yet, on the other hand, a conviction principally due to the testimony of two girls, aged respectively nilie and eight, was set aside on the ground of their incompetency. Coon V. People, 99 111. 368. § 8. Question of competency is for the court. As has been already stated, this question as to the capacity of the child to testify does not depend entirely upon the child's age, but it is only a fact for consideration, which must be taken in conjunction with all the other facts which may be developed upon a preliminary examina- tion, and upon which the court shall pass. This matter must be determined by the court, or officer, who may ex- amine an infant, or a person of apparently weak intellect, produced before it, or him, as a witness, to ascertain his capacity and the extent of his knowledge. Code Civ. Pro. § 850. The decision of the court must not be in- fluenced by the child's age, but based entirely upon, the fact, whether the result shows that the witness has the degree of intelligence which the law demands must be possessed by all witnesses who testify in a court of GENEEAL PKOVISIONS. 19 justice. Commonwealth v. Hutchinson, 10 Mass. 225 ; State V. Whittier, 21 Me. 341 ; Commonwealth v. Mul- tins, 2 Allen, 295 ; State v. Lattin, 29 Conn. 389 ; Stin- son V. State, 31 Ind. 90 ; State v. Edwards, 79 N. 0. 648 ; Peterson v. State, 47 G-a. 524 ; Bex v. Perkins, 2 Wood (Eng.), C. 0. 135. It sometimes occurs that a searching examination re- veals that the apparent lack of knowledge displayed by the child's answers in regard to the nature of an oath arise either from fright or simply from neglect of giving of the proper instruction in regard to that act, and not from any incompetency in the understanding or lack of religious training. In those cases a short suspension of the proceedings, in order that the court may instruct the witness in respect to the act, to allow time for the child to recover from its agitation, has been sometimes allowed. State V. Scanlon, 58 Me. 206 ; Bex v. White, 1 Leach (Eng.), 430 ; 1 Greenleaf, Ev. 14th Ed. § 367 ; 3 Russ. Or. 9th Ed. 613. This, however, is a matter discretionary with the court. Thus upon a trial, where a child of nine years of age was called as a witness, and upon his preliminary examination stated that he did not know the nature of an oath, or the obligation resting upon a witness to tell the truth, the trial court was held to have properly ex- cluded him from the witness stand, and that it commit- ted no error in refusing to instruct the child as to the nature of an oath or as to such obligations. Jones v. People, 6 Park, 126. Where, however, the court decides to give such in- structions, such instructions cannot be given in private, but, on the contrary, must take place in public in the presence of both parties or their counsel. The adverse 20 THE COMPETENCY AND BIGHTS OP WITNESSES. party must have the right afforded him of hearing and knowing Just what is said to the child, and from its answers and responses to be able to acquire a knowledge of the exact state of the mind possessed by the witness. Simons V. State, 31 Ind. 90. But this examination or giv- ing of instruction must proceed without any interference of counsel, unless allowed by the court, and the court may explain such matters to the witness. State v. Ritchie, 28 La. Ann. 327. It must be a very flagrant case of error which will authorize an appellate court to reverse a de- cision of a court that a witness is incompetent. Peter- son V. State, 47 Ga. 524. § 9. Defect in religious belief. It was formerly well-nigh universally held by the courts that a witness could not be considered competent unless he had a re- ligious belief of some kind, or of such a nature as to impress upon him the conviction that a violation of the oath which he was about to take would entail upon him future punishment at the hands of a Supreme Being, who ruled the universe. It does not seem to be longer required, even in those states where this qualification is still considered necessary, that the witness should belong to what is designated as the Christian faith, but, on the contrary, it is no objection to him that he does not so belong, since it is permitted to him to have any belief, belong to any sect, or indulge in any particular form of religious worship, as long as the fact is that he believes in a Supreme Being, who has both the will and the power to punish the perjurer. Butts v. Swartwood, 2 Cowen, 431 ; Blair v. Seaver, 26 Pa. St. 274 ; Brich v. Mulligan, 10 Ohio, 121 ; Newton v. Ladd, 4 N. H. 444 ; Cent. Mil. B. B. Co. v. Rochafellow, 17 111. 541 ; Ander- son V. Maherry, 2 Heisk. (Tenn.) 653 ; Missouri Eev. Stat. GENERAL PROVISION'S. 21 1835, p. 419 ; Scott v. Hooper, 13 Vt. 535 ; State v. Petty (S. 0.), 1 Hooper, 62. Where a religious belief is required, the true test is said to be, that while it is not deemed necessary that the witness should be of the orthodox faith, yet he must believe in a future state of punishment, although it is not required in addition thereto that he should believe such a state of punishment will last forever or be eternal. Blackus V. Burness, 2 Ala. 354 ; U. S. v. Kennedy, 3 McLean, ITS. It has also been decided that a disbelief in the doctrine of future awards or punishments for deeds committed in this life are not to be considered in determining this question, provided the witness does be- lieve in the Supreme Being. Smith v. Coffin, 6 Shep. (Me.) 157 ; Jones v. Rarris, 1 Strob. (S. 0.) 160 ; Conn. Eev. Stat. 1849, tit. 1, § 140 ; N. H. Eev. Stat. 1842, c. 188, § 9. But in those states retaining the common-law rule in respect to a religious belief, it is held that a person who possesses no belief in God and a future state of exist- ence, where good deeds will be rewarded and the wicked punished, but, on the contrary, belongs to that class of persons classed as atheists, is not capable of being a wit- ness in a court of justice, and cannot be competent to give testimony upon any trial. 1 Greenleaf, Ev. 14th Ed. § 368 ; Whart. Or. Ev. § 361 ; Eoscoe's Or. Ev. 8th Ed. § 180 ; 3 Eussell, Or. 9th Ed. 613 ; Wakefield v. Ross, 5 Mason, 16 ; CurtissY. Stern, 4 Orys. 0. Eep. 51 ; State v. Cooper, 2 Tenn. 96 ; Sherlock v. Whitney, 2 Cush. 104. The rule as held in those jurisdictions is thus expressed : ''The law is wise in requiring the highest attainable sanction for the truth of testimony given, and is con- sistent in rejecting all witnesses incapable of feeling this 22 THE COMPETENCY AND EIGHTS OP WITNESSES. sanction, of receiving this test ; whether this incapacity arises from the imbecility of their understanding, or from its perversity. It does not impute guilt or blame to either. If the witness is evidently intoxicated, he is not allowed to be sworn, because for the time being he is evidently incapable of feeling the force and obligation of an oath. The non compos and the infant of tender age are rejected for the same reason, but without blame. The atheist is also rejected, because he, too, is incapable of realizing the obligations of an oath, in consequence of his unbelief. The law looks only to the fact of incapacity, not the cause, or the manner of avowal. Whether it be calmly insinuated with the elegance of Gibbon or roared forth in the disgusting blasphemies of Paine, still it is atheism, and to require the mere formality of an oath, from one who avowedly despises or is incapable of feel- ing its peculiar sanction, would be a mockery of justice." 1 Greenl. Ev. 4:th Ed. § 368, n. The rule requiring the witness to possess a religious be- lief in order to be competent is not, however, by any means universal, and in many of our states this is not consid- ered a necessary qualification, and a witness is competent without any regard to his opinions in all matters pertain- ing to religion. Laws Arizona 1879, p. 469 ; Const. N. Y. State, art. 1, § 3 ; Tex. Rev. Stat. art. 2249 ; Tex. Cr. Code, art. 736 ; Code of California (Hittel's), § 118Y9 ; Ind. Eev. Stat. 1881, § 505 ; Minnesota Stat. 1878, p. 792 ; Miss. Eev. Code 1880, § 1604 ; Vermont Eev. Stat. 1880, § 1007 ; Hunscomb v. Hunscomb, 15 Mass. Eep. 184 ; Perry'' s Case, 3 Gratt. (Va.) 632 ; Com. v. Kaufman, 1 Circuit Ct. Eep. (Pa.) 410. The lack of religious belief does, however, greatly affect the credibility of the witness, and where such a fact is shown it materially damages GENERAL PROVISIONS. 23 his testimony. Stanbro v. Hopkins, 28 Barb. 265 ; Huns- comb V. Hunscomb, 15 Mass. 184. One who beheves in nothing is generally believed by none. It is therefore of importance to prove this state of unbelief of the wit- ness, in order that such fact may have its proper effect upon the jury ; and where such a state of mind exists, then such fact becomes vitally important. § 10. Unbelief, how proved. In the first place it must be remembered that the presumption always exists, that he who offers himself as a witness possesses all the nec- essary qualifications, and he who asserts the contrary has resting upon him the burden of proving it. Donnelly v. State, 26 N. J. L. 463. Also, religious belief once shown to have existed is presumed to continue until the contrary is shown. State v. Stinson, lY Me. 154. It seems to be the rule in England to examine the witness himself as to the fact of his religious belief either before he has been sworn or upon his voir dire. Bex v. Taylor, Peake, 11 ; Queen's Case, 2 B. & B. 284 ; Bex v. White, Leach, 430 ; Moden v. Catenach, 31 L. J. Exch. 118 ; 7 Hulst. & N. 360 ; Eoscoe's Or. Ev. 182 ; 3 Euss. Cr. 617. But that does not appear to be the practice in this country, and in the United States an examination of the witness upon this point does not seem to receive the sanction of the courts. This opposition is grounded upon sound reasoning, for to require the witness to be sworn to answer truly such questions as may be put to him, touching his likelihood to commit perjury upon the trial, would smack sti'ongly of the absurd. Upon this question Chief Justice Stone states the rule to be: "The want of such religious belief must be estab- lished by other means than the examination of the wit- ness upon the stand. He is not to be questioned as to 24 THE COMPETENCY AND EIGHTS OP WITNESSES. his religious belief, nor required to divulge his opinion upon that subject, in answer to questions put to him while under examination. If he is to be set aside for want of such religious belief, the fact is to be shown by- other witnesses, and by evidence of his previously ex- pressed opinions voluntarily made known to others." Com. V. Smith, 2 Gray (Mass.), 516. To same effect, Jack- son V. Oridley, 18 Johns. (N. T.) 98 ; 1 Greenleaf, 14th Ed. § 370 ; Smith v. Coffin, 6 Shepl. 157 ; Odell v. Kop- per, 5 Heisk. (Tenn.) 88. Thus his declarations formerly made as to his non-belief in the existence of a God can be given in evidence. Anderson v. Newberry, 2 Heisk. (Tenn.) 653 ; Barthelemy v. People, 2 Hill, 248 ; Halley V. Webster, 21 Me. 461. It is also proper for the party to give testimony in rebuttal, but he must show by other parties than himself that he has undergone a change of heart, and no longer entertains his former atheistical opinions, but now does in fact believe in God. State v. Townsend, 2 Harr. (Del.) 543 ; Atwood v. Wilton, 1 Conn. 66 ; Curtis v. Strong, 7 Day, 51 ; State v. Hooper, 14 Vt. 535 ; Com. v. Bachelor, 4 Am. Jur. 79, n. ; Tuttle V. Gridley, 18 Johns. 981. It would seem that these rules were meant to more especially apply to those cases where an absence of belief in the Deity excludes from the witness stand. Where such an effect is not produced by non -belief, it does not seem reasonable to suppose that the witness may not be interrogated on cross-examination in regard to his re- ligious opinions, equally with any other matter which goes to affect his credibility. It would also seem that a witness can, if he so desire, state just what his religious belief is, and show that, while differing from the orthodox forms, it is yet one in GENERAL PROVISIONS. 25 which the existence of a Supreme Being is recognized and future punishment for perjury beheved in. § 11. Physical incapacity. By this term is meant the existence of such bodily infirmity of the witness at the time of the occurrence as would, from its nature, have a tendency to impair the credibility of the testi- mony given in reference to the transaction, or from the strength of the ailment would render a witness wholly incompetent to testify. This physical disqualification must have existed, however, at the time of the commis- sion of the crime, in order to render it available against the witness. That fact has no bearing upon the testi- mony, if the affliction did not befall the witness until after the act took place. Thus, a man who becomes deaf after the affair is perfectly competent to testify as to what he heard prior to his misfortune, and one upon whom blindness has fallen may yet testify to what he saw when he enjoyed sight. But in regard to those who were born deaf and dumb, the rule seems to be that it devolves, in the first instance, upon the party calling them^ to show that they possess capacity to be witnesses, before any presumption as to competency arises in their favor. 1 Greenleaf, Ev. Idth Ed. § 366. Under the common law these unfortunates were un- justly placed in the same class with idiots, in regard to the almost conclusive adverse presumption of competency as witnesses ; but a more enlightened age recognizes the impropriety of the old classification, and now, unless otherwise incompetent, such persons may, upon sufficient understanding being shown, give their testimony by writing or by signs through the medium of an interpre- ter of the sign language of the dumb. State v. De Wolf, 26 THE COMPETENCY AND EIGHTS OP WITNESSES. 8 Conn. 93 ; Com. v. -Htll, 14 Mass, 207 ; People v. McGee, 1 Den. 19 ; Snyder v. Natims, 5 Blackf. 295 ; Bushton's Case (Eng.), 1 Leach, Cr. Cas. 408 ; Reg. v. Megson (Eng.), 9 Car. & P. 428 ; Reg. v. Guthridge, 9 Id. 4T1. Thus, where a deaf and dumb man, who was born so, was a witness upon a criminal trial, the court allowed him to testify through the medium of his sister, who was sworn to act as an interpreter, upon it being shown that she and her brother had been able to converse to- gether for many years by the use of certain well-defined signs and signals. It was also shown by her testimony that he was aware of the doctrines of Christianity, and she also promised to inform him of the religious and moral obligations of the oath he was about to take. Rex V. Rushton (Eng.), 1 Leach, 408. Also, upon a trial for a rape committed upon a woman who was deaf and dumb, the complainant, having been previously instructed by teachers through signs concern- ing both the nature of an oath and of the obligation which rested upon a person taking it to tell the truth, was allowed to testify. 1 Eosc. Cr. Ev. 178. As affecting the credibility, but not the competency of the witness, it is proper to show by evidence on his cross- examination, that he is defective in certain percipient powers, which in certain cases might greatly impair the value of his testimony. As upon the strength or weakness of the memory de- pends entirely the value of the testimony given by the witness, it is always proper to show that the witness possesses a defective memory in order to impair the credi- bility of his evidence. Ketchy v. State, 70 N. C. 621 ; Isler V. Dewey, 75 Id. 46 ; Flemming v. State, 5 Humph. (Tenn.) 564 ; Faircliild v. Bascomh, 35 Vt. 398 ; Living- GENERAL PEOVISIONS. 27 ston V. Kiersted, 10 Johns. (N. Y.) 362 ; Com. v. Cooper, 5 Allen (Mass.), 495. Thus the imbecility arising from old age, since it destroys to a great degree the powers of the mind, goes to the credibility of the witness. Mc- Cutcheon v. Pique, 4 Heisk. (Tenn.) 563. It does not appear to be proper upon this question to show that the witness was in the habit of indulging in drugs or narcotics which had a tendency to produce loss of memory, since the only fact to be considered is whether there is in truth a loss of memory, not whether there may be such a defect. McDowell v. Preston, 25 Ga. 528. The incapacity arising from over-indulgence in liquor or drugs, of a person called as a witness, is a question. for the court present, and may be decided from the per- sonal inspection furnished by the witness himself. Hac- ford V. Palmer, 16 Johns. 143 ; Fox v. Terr, 5 W. C. Eep. 339. § 12. Convict or infamous person. At common law, a person who had been convicted of any crime which was of such a nature as to bring it within the definition of "infamous," became at once designated as an "in- famous person," and forthwith ceased to be competent as a witness in legal proceedings. As the class of crimes to which this disqualification attached included pretty much the sum total of all felonies, it practically followed that under the common law every person convicted of a felony was debarred from the witness stand. Before the individual became stamped with this incompetency, however, something more than the mere verdict of con- viction of a jury was required, but in addition to that act it was necessary that a judgment and sentence from a competent court should have followed the verdict of guilty. Therefore it was held that until such sentence 28 THE COMPETENCY AND RIGHTS OF WITNESSES. had been pronounced, notwithstanding the fact tliat a verdict of guilty might have been given, the defendant was competent to testify. 3 Enssell, Or. (Eng.) p. 625. Under the old practice, therefore, it was neither the crime nor the guilt which disqualified, but the mere perfunctory act of passing sentence. This anomaly seems to have relied upon no firmer foundation for its existence than the reason expressed by some jurists, that a verdict might be, or was liable to be, set aside. As this reasoning might equally apply to a sentence delivered upon an erroneous judgment, its force is not very apparent. This old rule regarding convict testimony, with its subtle distinctions, is now generally done away with, and the fact of a former conviction no longer renders a witness incompetent in most of our states, but only goes to affect his credibility. Code, Civ. Pro. § 832 ; Conn Gen. Stat. 18T5, p. MO ; N. Y. Penal Code, § lU ; Mich Laws 1861, c. 125, p. 118 ; Tenn. Stat. 1871, § 3812 Mass. Pub. Stat. c. 169 ; Iowa Code, § 3636 ; Hittel's Code (Cal.), § 11879 ; Colorado Gen. Laws 1877, c. 104 Delaware Laws 1874, p. 662 ; Ga. Code, § 3854 ; 111. Eev, Stat. 1880, p. 505 ; Kansas Comp. Laws, § 3847 ; Minne- sota Stat. 1878, p. 792 ; N. H. Gen. Laws 1878, c. 228 N. J. Rev. Stat. p. 378 ; Rhode Island Stat. 1882, c. 214 Vt. Eev. Stat. 1880, § 1008 ; Wis. Eev. Stat. 1878, § 4073. But while the weight of the authorities is in the line of allowiug convicts to become witnesses in legal pro- ceedings, yet in many of the states an exception is made in this regard, where the former conviction has been for the crime of perjury. The crime of perjury is justly and properly considered as to so utterly stamp a man or GENERAL PROVISIONS. 29 ■woman, as unworthy of belief, that the fact of a convic- tion therefor absolutely disqualifies such a person from ever becoming a witness in a court of justice. But this is not the rule in this state, where the provisions of our Civil and Penal Code are considered to make no excep- tions as to any crime, and a witness convicted of perjury in the same or another action is not thereby rendered in- competent. People V. O'Neil, 14 St. Eep. 829 ; 109 N. Y. 266. The rule is said to be in this respect that the fact of such conviction " must be considered by the jury in connection with other evidence, under such prudential instructions as may be given by the court, and subject to the determination of the court having jurisdiction to grant new trials in cases of verdicts against evidence." Dunn V. People, 29 N. Y. 529. From the use of the word "convicted" in the Codes without the word "sentenced," as used in the Revised Statutes, it was contended that the Codes did not mean to permit a sentenced person to be a competent witness. All ambiguit}"- upon this point is, however, now done away with by our courts, which hold that the meaning of the term "convicted" also denotes the final judg- ment of the court in pronouncing sentence. People v McGloin, 91 N. Y. 241 ; aflf. 28 Hun, 150 ; Lindeman v. N. Y. 0. & C. B. R. Co., 46 Hun, 6T9 ; 11 St. Rep. 837 ; Sacia v. Decker, 1 Civ. Pro. 47. How proved. The language of both the Codes is similar, as to the manner of proving such prior convic- tions of the witness : " The conviction maybe 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 question relevant to that in- quiry ; and the party cross-examining him is not con- 30 THE COMPETENCY AND RIGHTS OF WITNESSES. eluded by his answer to such a question. " Code Civ. Pro. § 832 ; Penal Code, § 714. The fact that the conviction took place in another state does not alter the conditions as to his competency. Sims V. Sims, T5 N. Y. 466 ; Nat. Trust Co. v. Gleason, 77 Id. 400. Nor does it prevent such former conviction being proved in the same manner as provided for in the Codes and introduced in evidence as to his credibility. Sims V. Sims, 75 N. Y. 466 ; Com. v. Graham, 99 Mass. 421 ; State v. Ridgley, 2 Har. & McHen. (Md.) 120 ; Florida Dig. 1881, p. 518 ; Donohue v People, 66 N. J. 208 ; Dickinsons. Duston, 21 Mich. 561 ; Brown v. State, 18 Ohio St. 496 ; Train v. State, 40 Ga. 529 ; Glenn v. Com., 42 Ind. 60 ; State v. Watson, 65 Me. 74 ; Johnson V. State, 48 Ga. 116. These sections, however, refer only to criminal convic- tions, not civil actions. Thus held that a judgment in a civil action, against a party for a penalty for keeping house of ill-fame, is not a conviction of a crime or mis- demeanor in the meaning of the act, and the record can- not be proved to affect his credibility in another action. Arhart v. Stark, 6 Misc. 579 ; 27 Supp. 301. A witness examined in his own behalf can, however, be asked on cross-examination whether he has ever been convicted of selling liquor without a license. Dowd v. Donnelly, 35 St. Rep. 834. Also, if ever convicted of being drunk and disorderly. People v. Burns, 33 Hun, 296 ; 2 Cr. Rep. 415. Also, if ever convicted of petty larceny. People v. Saterlee, 5 Hun, 167. Also, if he had made an assault upon another. People v. Irving, 95 N. Y. 641 ; People v. Casey, 72 Id. 393. The record of a conviction may also be put in evidence. People ex rel. v. Paschal, 68 Hun, 344 ; 22 Supp. 881. GENBEAL PROVISIONS. 31 If no objections are made to the mode of proof, all errors are considered as waived. Perry v. People, 86 N. Y. 353. These provisions of the Codes, however, refer to convic- tions only, not to accusations or arrests which were not followed by convictions. A witness therefore cannot be asked how many times he has been arrested, nor if he has been arrested for a certain specified offense, since he is privileged from answering such questions. People v. Brown, 72 N. Y. 661 ; People v. Crapo, T6 N. Y. 288. Neither can he be asked if he was ever indicted. Ryan V. People, Y9 N. Y. 593. When the evidence of prior convictions is received, all questions of the credibility of the witness are for the jury. People v. Chapleau, 121 N. Y. 266. CHAPTER II. DISPARAGING AND CRIMINATING QUESTIONS. Sec. 13. Exemption from answering disparaging questions. 14. Tending to disgrace. 15. Illegal sale of thing in action. 16. Bribery. 17. Duelling. 18. Gaming. 19. Crimes against the public peace. 20. Perjury. § 13. Exemption from answering disparaging ques- tions. A competent witness shall not be excused from answering a relevant question, on the ground 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 will tend to accuse him 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. Code Civ. Pro. § 837. It is also declared by the Constitution of the United States that " no man shall be compelled in any criminal case to be a witness against himself." Const. U. S. Am^d. V. But this exemption from testifying and personal privi- lege, granted by the statute, does not apply where the statute of limitations has run against the party, and the witness in that event is not excused from testifying, nor relieved from producing documents tending to show him 32 DISPARAGING AND CKIMINATING QUESTIONS. 33 guilty of a crime. McCreery v. Ghormley, 9 App. Div. 221. This privilege is generally allowed in all the courts of this country, and no witness in any criminal proceedings will be compelled to answer questions which in the judg- ment of the court would tend to criminate him. Id. ; State V. Marshall, 36 Mo. 400 ; State v. Talbot, 13 Id. 347 ; Simmons v. Sealster, 13 Minn. 249 ; Emory^s Cases, 107 Mass. 172 ; Coburn v. Odell, 30 N. H. 540 ; Cham- berlain V. Wilson, 12 Vt. 491 ; Phelim v. Kenderdine, 20 Pa. St. 354, 362 ; State v. Blalce, 25 Me. 350 ; State V. OZm,23Wis. 309 ; People v. Mather, 4 Wend. (N. Y.) 252. There are some decisions which seem to hold that this is a question for the witness himself to determine, and if he swears that the answers will have a tendency to criminate him, such is conclusive upon that point. Warner v. Lucas, 10 Ohio, 336 ; Pool v. Perritt, Speers (S. C), 128. But the contrary has also been distinctly held, where the courts have decided that the determina- tion as to the incriminatory character of the question rests with the trial court. Floyd v. State, 7 Tex. 215 ; Rich- mond V. State, 3 Green (Iowa), 532 ; People v. Mather, 4 Wend. 252. The drift of authority in the United States is toward vesting the court with the power to decide this question. The court should, however, be very solicitous to see that it makes no error in judgment in this regard, and that the witness is fully protected. Upon this point we have the words of Chief Justice Marshall : " It is the province of the court to judge whether any direct answer to the question which may be proposed will furnish evidence against the witness. If such answer may dis- close a fact which forms a necessary and essential link in the chain of testimony which would be sufficient to 3 34 THK COMPETENCY AND EIGHTS OF WITNESSES. convict of any crime, he is not bound to answer it so as to furnish matter for that conviction. In such a case the witness must himself judge what his answer will be ; and if he say on his oath that he cannot answer without accusing himself, he will not be compelled to answer. 1 Burns' Trial, 245. It must be borne in mind that this privilege can only be claimed where the answer would tend to the instituting of criminal proceedings against the witness. The fact that the answers might result in a civil suit, expose the witness to pecuniary loss or charge him with debt, has no bearing upon the question, and will not excuse the witness from answering. Matter of Kip, 1 Paige, 601 ; Steward v. Turner, 3 Edw. Oh. 458 ; Taylor v. Jennings, Y Eobb. 581 ; Bull v. Loveland, 10 Pick. (Mass.) 9 ; Ward v. Sharp, 15 Vt. 115 ; Copp v. Upham, 3 N. H. 159 ; Cox v. Hill, 3 Ohio, 411. This privilege is entirely personal to the witness, and not available to the public prosecutor or any one else, and therefore neither his lawyer nor others can object to the witness answering incriminating questions. South- ards. Bexford, 6 Cow. 254 ; Taylor v. Wood, 2 Edw. Oh. 94 ; Cloyes v. Thayer, 3 Hill, 564. But where the party himself is a witness, his counsel may claim the privilege for him by objecting. People v. Brown, 72 N. Y. 571. It is for the witness to claim this privilege, although it has been held that a witness who has voluntarily given testimony as to part of those facts which would tend to criminate him cannot claim this privilege upon cross- examination. Com. V. Pratt, 126 Mass. ; Com. v. Price, 10 Oray (Mass.), 472 ; but see Mayo v. Mayo, 119 Mass. 290 ; Worthington v. Scribner, 109 Id. 487 ; yet the weight of authorities gives him the right to claim the privilege at any stage of the case, irrespective of the fact whether DISPARAGING AND CRIMINATING QUESTIONS. 35 he had partly answered the question or not. Neal v. Comingham, 1 Oranch. C. Ct. T6 ; Boyle v. Wiseman, 29 Eng. L. & Eq. 473 ; Bex v. Garbett (Eng.), 2 C. & K. 75 ; see also Chamberlain v. Wilson, 12 Vt. 491 ; State V. Fisher, 23 N. H. 348. The witness, however, may waive this privilege, and if, after being advised of his privilege, he chooses to disclose any part of a conversation or transaction, he is deemed to have waived his privilege, and must answer all ques- tions relating to the transaction. State v. K , 4 N. H. 562 ; Youngs v. Youngs, 5 Eedf. (N. Y.) 505 ; People v. Freshom, 65 Cal. 375 ; Chamberlain v. Wilson. 12 Vt. 491 ; Brown v. Brown, 9 Mass. 320 ; Foster v. Pierce, 11 Cush. 431 ; Norfolk v. Gaylord, 28 Conn. 309 ; State v. Nichols, 29 Minn. 357 ; Pinkard v. State, 30 Ga. 757. Where, however, the witness has through inadvertence answered the question, or where the matter he has dis- closed bears no relation to that which he claims would tend to criminate him, the privilege will be accorded to him. Mayo v. Mayo, 119 Mass. 290 ; Coburn v. Odell, 10 Fost. (N. H.) 590 ; Dixon v. Vale (Eng.), 1 0. & P. 278. Also, where a witness states a fact, it has been held that he must give his reasons for the statement, even though by so doing he criminates himself. Horte- naie v. Kaufman, 97 Penn. St. 147 ; Com. v. Price, 10 Gray (Mass.), 472 ; State v. Blake, 25 Me. 350. Also held that a witness claiming this right should not, by so doing, be discredited with the jury. Milman v. Tucker {EiUg.), Peake's App. Cas. 222 ; Boscy. Bakeman (Eng), 1 Ey. & M. 384 ; Contra, Andrews v. Trye, 104 Mass. 234. Also, that the opposing counsel should not be allowed to comment upon that fact in address- ing the jury or court. People v. Mannansaw (Mich.), 36 THE COMPETENCY AND EIGHTS OF WITNESSES. 20 N. W. Eep. 197 ; Phelin v. Kenderdine, 20 Pa. St. 354. Illustrations of the rule. It has been held that the privileges of the statute extend to a bank officer who has, on his own account, illegally discounted a note. Henry V. Bank, 1 N. Y. 83. Also to one who was acting for the bank. Curtis v. Knox, 2 Dem.Sil. Also to a lender of money, in an action upon a promissory note where the defense was usury. Fellows v. Wilson, 31 Barb. 162 ; Livingstone v. Harris, 3 Paige, 528 ; aflf'd 11 Wend. 329. Also to books and papers. JByass v. Sullivan, 21 How. 50. But it has been held that the language, ' ' tends to ex- pose himself to a penalty or forfeiture," cannot be invoked to justify a contestant of a will, in refusing to furnish testimony which would establish its validity. Hoyt v. Jackson, 3 Dem. 388. Also held, it does not apply to trade secrets. Burncet v. Phalon, 11 Abb. 157. Neither does it apply in an action against a trustee to charge him with a corporate debt by reason of his failure to file an annual report. Gadsden v. Woodward, 38 Hun, 548 ; Geisenheimer v. Dodge, 1 How. (N. S.)264. Also held, that a trustee of a social club or society, liable for certain of its debts contracted while they were in office, by an act of the legislature, does not come under the head of liability for a penalty, and thus cannot claim this privilege, and thus serve an unverified answer to a verified complaint. Rogers v. Decker, 131 N. Y. 490. Another point upon which there seems to be a differ- ence of opinion is in regard to questions, the answers to which will not subject the witness to liability from any criminal preceedings, but will tend to degrade or dis- grace him. Our Codes are silent as to any exemption on this DISPAEAGING AND CEIMINATIKG QUESTIONS. 37 ground. It has been held that if the evidence does not bear directly upon the issue, the witness is privileged from answering on the score of privilege. Lohman v. People, 1 N. Y. 379. The contrary is held in more recent decisions, however, and it is decided that the admission or rejection of such evidence in cross-examination rests within the discretion of the court. Great W. T. Co v. Loomis, 32 N. Y. 127 ; People ex rel. Phelps v. Oyer & Terminer, 83 N. Y. 436. Who judges of the effect. Much discussion has arisen as to the power of the witness himself to judge of the effect the desired evidence may produce upon his liability. The rule has been laid down as follows : " Upon a re- view of the authorities, we are clearly of the opinion that to entitle a party called as a witness to the priv- ilege of silence, the court must see, from the circum- stances of the case, and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer." Youngs v. Youngs, 5 Eedf. 505. But the witness claiming this privilege, on the ground it would tend to criminate him, should not be compelled to give his reasons, or the facts from which he fears a criminal prosecution might follow, since to force him to do so would expose him to the very proceeding he feared. Id. ; Close v.Olney, IDen. 319 ; State y. Marshall, 36 Mo. 400 ; Peoplev. Perritt, 1 Spears (S. 0.), 128 ; Lee v. Hen- derson, 1 Cold. (Tenn.) 146 ; Chamberlain v. Wilson, 12 Vt. 491 ; Pleasant v. State, 15 Ark. 624 ; Short v. State, 4 Harr. (Del.) 568 ; Higden v. Heard, 14 Ga. 256 ; Rich- mond V. State, 2 Green (Iowa), 532 ; Coburn v. Odell, 10 Fost. (N. H.) 540 ; Jauvin v. Scammond, 9 Ind. 80 ; U. S: 38 THE COMPETENCY AND EIGHTS OP WITNESSES. V. Moses, 1. Or. C. Ct. 170 ; Fries v. Burgen, 1 Halst. (N. J.) T9 ; Fisher v. Beynolds, English Law & Eq. 417. It is so important that this privilege should not be denied to a witness, that it has been held that nothing but absolute immunity from prosecution can take its place. People ex rel. Taylor v. Forbes, 143 N. Y. 219 ; 62 St. Eep. 175. It has also been held that it is the duty of the court to instruct a witness who declines to testify. Close v. Olney, 1 Den. 319 ; Southard v. Bexford, 6 Cow. 254 ; Taylor v. Wood, 2 Edw. 94. Where it appears that the offense is barred by the statute of limitations, the court is barred to pronounce against claim to exceptions. Close v. Olney, 1 Den. 319 ; Wolfe V. Goulard, 15 Abb. 336. § 14. Tending to disgrace. Another point upon which there seems to be a difference of opinion is in regard to questions the answers to which will not subject the witness to liability from any criminal proceedings, but will tend to degrade or disgrace him. § 15. Illegal sale of thing in action. "No 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 con- vict 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. § 16. Bribery. "A person offending against any pro- vision of any foregoing sections of this Code relating to bribery is a competent witness against another person so offending, and may be compelled to attend and testify upon any trial, hearing, proceeding or investigation, in DISPAEAGING AND CRIMINATING QUESTIONS. 39 the same manner as any other person. But the testi- mony so given shall not be used in any prosecution or proceeding, civil or criminal, against the person so testi- fying. 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 the testimony accord- ingly, in bar of such indictment or prosecution." Penal Code, § Y9. This act is not in violation of art. 1, § 6 of the State Constitution, which provides that no person shall be compelled in any criminal case to be a witness against himself, since this section expressly exempts such witness from all punishment or liability. People v. Sharp, 107 N. Y. 427. Also held, that a witness subpoenaed before a legislative committee is entitled to be protected from the effects of his testimony, and he does not lose this privilege by his failure to claim it at that time. Id. § 17. Duelling. "A person offending against any provision of this chapter (making duelling a crime) is a competent witness against any other person offending in the same transaction, and must not be excused from tes- tifying or answering any question, upon an investigation or trial for an offense under this chapter, upon the ground that his testimony might 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 proceed- ing." Penal Code, § 241. § 18. Gaming. "No person shall be excused from giving testimony upon any investigation or proceeding for a violation of this chapter (against gaming), upon the ground that such testimony would tend to convict 40 THE COMPETENCY AND EIGHTS OP WITNESSES. him of a crime ; but such testimony cannot be received against him upon any criminal investigation or proceed- ing." Penal Code, § 342. Thus it has been held that a judgment debtor, who loses money by gambling or other games of chance, may, on supplementary proceedings, be required to state where and when he lost his money, with the names of the winners, so that a receiver to be appointed may sue to recover the same back. Steinhart v. Farrell, 3 St. Eep. 292. But the indictment of a witness called before a grand jury as a witness to gambling, by the same grand jury, for keeping a gambling house, violates the immunity of the statute. People v. Spencer, 48 St. Eep. 803 ; 66 Hun, 149 ; 10 Or. Eep. 236. § 19. Crimes against the public peace. " No person shall be excused from giving evidence upon an investi- gation or prosecution 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 proceeding." Penal Code, § 469. § 20. Perjury. " The sections of this Code which de- clare that evidence obtained upon the examination of a person or 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, § T12. CHAPTER III. THE DEFENDANT AND ACCOMPLICES. Sec. 31. The defendant as a witness. 33. Cross-examination of. 33. Power of court over. 34. Accomplices as witnesses, 35. Cross-examination of. 36. Must be corroborated. 37. Extent of corroboration. 38. An accomplice defined. 39. Decoys, detectives and spies. § 21. The defendant as a witness. Under the old common law, the lips of the defendant in a criminal action were sealed, and he was debarred from going upon the stand and giving testimony in his own behalf. In England the common law has been relaxed only to the extent of allowing the accused to make an unsworn state- ment to the jury, but he is not in any sense a witness nor subject to cross-examination. In two of our states it is held that this right to make a statement is as far as the defendant can go, but those statutes differ somewhat from the practice in England, and also in some particulars from each other. (Florida) McClellan's Dig. c. 101, § 29 ; Code of Georgia (1882)> c. 5, art. 2, § 3854. In one of our commonwealths the accused may testify in his own favor if he so elects, or he may at his option "make a statement to the jury without being sworn, but the neglect or refusal to make a statement shall not 41 42 THE COMPETENCY AND RIGHTS OP WITNESSES. create any presumption against him, nor shall any reference be made to, nor shall any comment be made upon, such neglect or refusal." E. S. Wyoming Terr. (188T) § 3288. In other of our states the rule is different, the courts very properly refusing to allow anything relating to testimony to be introduced into a case, unless it comes to the jury under the sanctity of an oath. In this state it is provided that "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 pre- sumption against him." N. Y. Or. Code, § 393. This act is permissive, not compulsory, and is therefore con- stitutional. People V. Courtney, 94 N. Y. 490 ; 1 Cr. Eep. 551. The statute, as is seen, declares that a failure on the part of the accused to take the stand in his own behalf shall create no adverse presumption. Therefore, the court has no right to allude to the failure of the de- fendant to go upon the stand, in its charge to the jury ; nor has the prosecuting officer any right to refer to such omission or failure on the part of the accused. People V. Bose, 53 Hun, 33 ; Buloff v. People, 45 N. Y. 213 ; Quinn v. People (111.), 15 N. E. Eep. 46 ; State v. Wed- dington (N. 0.), 9 S. E. Eep. 5Y7 ; Cotton v. State, 87 Ala. 103. But it has also been held that where the court has committed an error in this respect, a subsequent in- struction to the jury that they should draw no adverse inference from such failure to testify cures the error. Buloff \. People, 45 N. Y. 213. While the law has striven so to arrange it that no adverse presumption shall attach to the accused who THE DEFENDANT AND ACCOMPLICES. 43 refrains from testifying at all, it makes an entirely dif- ferent rule when he elects to go upon the stand. In those cases, when the defendant elects to take advantage of his option, he must explain or deny every circum- stance which seems, or is, suspicious, in its nature, or which directly tends to his guilt, which has arisen or heen developed in the case, and which, unexplained, casts a doubt upon his innocence, or such failure on his part will raise a presumption against him. Stover v. People, 56 N. Y. 315 ; Heldt v. State (Neb.), 30 N. W. 626 ; State v. Walker (Mo.), 9 S. W. 646 ; Brashear v. State, 58 Md. 563. Such omission is therefore a subject of comment, and may be so commented on by the prose- cuting officer in his address to the jury. The amount of credit to be given to the testimony of a defendant in his own behalf is a matter for the con- sideration of the jury. Spiegel v. Hays, 118 N. Y. 661 ; Connors v. People, 50 N. Y. 240; Brandon v. People, 42 Id. 265 ; People v. Moett, 23 Hun, 60 ; afP'd 85 N. Y. 373 ; Newman v. People, 63 Barb. 630. § 22. Cross-examination. When the defendant elects to go upon the stand as a witness in his own behalf, he waives all the rights he previously possessed in regard to answering incriminating questions, and is subjected to the same rules upon cross-examination as any other wit- ness. People v. Ouidici, 100 N. Y. 507 ; People v. Casey, 72 N. Y. 393 ; People v. Courtney, 94 Id. 400 ; Brandon v. People, 42 Id. 265 ; Fralich v. People, 65 Barb. 48 ; Connors v. People, 50 N. Y. 440 ; Stover v. People, 56 Id. 320. The defendant, when he goes upon the stand, subjects himself to a searching cross-examination. People v. Conroy, 153 N. Y. 187. 44 THE COMPETENCY AND EIGHTS OP WITNESSES. When a person charged with murder sets up the de- fense that the kiUing was accidental, his failure to call his wife, who was present at the time as a witness, is a fact to be considered by the jury. People v. Hovey, 93 N. Y. 560 ; 29 Hun, 389 ; 1 Cr. Eep. 188. But no adverse presumption is raised against the ac- cused, by reason of his failure to call a witness or in- troduce testimony, which is as equally accessible to the prosecution as the defense. People v. Sweeney, 4 Cr. Eep. 276 ; 41 Hun, 332 ; State v. Rosier, 55 Iowa, 517 ; Com. V. Webster, 5 Cush. (Mass.) 295. Neither can any presumption arise against the defend- ant for his failure to call his accomplice to testify in his favor. State v. Cousins, 58 Iowa, 250. Nor can a failure upon the part of the defendant to call a witness to his good character be considered by the jury as a circumstance adverse to the accused. Ormsby V. People, 53 N. Y. 472. The prosecution is permitted a very wide range as to topics of inquiry, and may require the accused to answer all questions which are relevant to the issue or go to affect his credibility. People ex rel. Phelps v. Oyer & Terminer, 83 N. Y. 436 ; People v. Conroy, 153 N. Y. 187; People v. Webster, 139 Id. 83, 84; Clark v. State, 78 Ala. 474 ; Com. v. Mullen, 97 Mass. 545 ; Com. v. Lannon, 13 Allen (Mass.), 563 ; State v. Ober, 52 N. H. 459 ; Spies v. People, 122 111. 235 ; Keone v. People, 6 Cal. 346 ; YouJce v. State, 51 Wis. 464 ; State v. Huff, 11 Nev. 17 ; Cowley v. People, 8 Abb. N. 0. (N. Y.) 34. Thus where the prosecution, in an action for violation of the excise law, proved the witnessing of sales through a glass door, and the defendant swore that there was no glass in the door, held proper to ask him if there was not THE DEFENDANT AND ACCOMPLICES. 45 glass in the partition of the side of the door. Com, v. Mullen, 9T Mass. 545. Also, upon a trial for selling liquor, it was held com- petent for the prosecution to ask the defendant, upon cross-examination, how many sales he had made himself, notwithstanding this point had not been inquired about upon his examination in chief. 8tate v. Wentworth, 65 Me. 234. Where the defendant was on trial charged with the killing of his wife, the prosecution was permitted to in- terrogate him on cross-examination as to his former ill- treatment of his wife. Disque v. State, 6 Cent. Eep. 331. Also, where the defendant was charged with libel, the court held that no error had been committed in permit- ting the prosecuting attorney to ask the defendant on cross-examination if he was the publisher of the news- paper in question. Com. v. Morgan, lOT Mass. 199. It is also permitted, as affecting the credit of the ac- cused, to ask him as to specific acts, such as his participa- tion in other crimes or offenses. Spies v. People, 122 111. 235 ; People v. Casey, T2 N. Y. 393. In some jurisdic- tions, while this rule is approved generally, yet it is held that the particular crimes inquired about must relate to the crime at issue, or in some way be part of the same system. Boyler v. State, 105 Ind. 469 ; State v. Huff, 11 Nev. 17 ; People v. James, 57 Cal. 115. Thus held error to ask one on trial for murder if he had not committed assaults upon other persons than the deceased. State v. Suff, 11 Nev. 19. Also, upon trial on an indictment for murder, the court excluded a ques- tion asked by the prosecution on the cross-examina- tion of the defendant, as to whether he had not been criminally intimate with the wife of the deceased. 46 THE COMPETENCY AND EIGHTS OF WITNESSES. People V. James, 57 Cal. 115. Also, held by the court to be an error calling for a reversal of the conviction, where the prosecution, was allowed on cross-examination to ask the defendant whether he had assaulted others when drunk. State v. Carson, 66 Me. 116. As has already been discussed, it is proper upon this point to ask the defendant if he has ever been impris- oned in a penal institution, or has been convicted of a crime. See ante, § 13. But he cannot be asked whether he has ever been arrested or indicted. See ante, § 13. It has also been held that upon this point the defendant may be asked questions denoting a disregard upon his part of the obligations of domestic relations, or the mode of life usually prescribed by society. Thus where the defendant was upon his trial for an assault with intent to kill, held proper on the cross-examination for the prose- cution to ask him as to his desertion of his wife, and as to whether he was not a tramp. Yanke v. State, 51 Wis. 464. It was held, upon a trial for an assault, that the de- fendant could be asked on his cross-examination whether he had not on a previous occasion assaulted another per- son. People V. Irving, 95 N. Y. 541. Also, upon the trial of an indictment for selling lottery tickets, it was held that the defendant could be asked on his cross-examination whether he had been in that busi- ness before, and had been convicted of mailing lottery circulars. People v. Noelke, 94 N. Y. 137. § 23. Power of the court over cross-examination. The range and scope of cross-examination of the de- fendant is under the control of the court, and must be subject to the limitation that the matters inquired into must be pertinent to the issue, tend to affect the credi- THE DEFENDANT AND ACCOMPLICES. 47 bility of the witness, or go to impeach his moral char- acter. People V. Clarh, 102 N. Y. T35 ; People v. Noelke, 94 Id. 137 ; People v. Oyer & Terminer, 83 Id. 438 ; Ryan's Case, 79 Id. 594 ; Brown's Case, 72 Id. 571 ; People V. Casey, Id. 394 ; People v. Crapo, 76 Id. 290. Where this limitation is observed, the court will only interfere where there is a great abuse of discretion. People V. Casey, 72 N. Y. 393 ; People v. Oyer, etc., 83 Id. 460 ; Great West. T. Co. v. Loomis, 32 Id. 127 ; Le- Beau V. People, 34 Id. 230. But where it is apparent that the questions asked are not asked so much to show the legitimate objects of the cross-examination as to excite the prejudice of the jury against the accused, the court may properly exercise its discretionary power of interference. People v. Brown, 72 N. Y. 571 ; Clarke v. State, 48 Ala. 474. Upon this point the court has wisely said : " The dis- cretion which courts possess to permit questions of par- ticular acts to be put to witnesses for the purpose of im- pairing credibility should be exercised with great caution when an accused person is a witness 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. His 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 convict upon evidence which otherwise 48 THE COMPETENCY AND EIGHTS OF "WITNESSES. would be deemed insufficient." People v. Crapo, Y6 N. Y. 288. § 24:. Accomplice as witness. It has always been the rule, subject to restrictions, to allow an accomplice of those on trial charged with crime to give testimony against his fellows. In England such testimony is not allowed as a matter of course, but leave must first be ob- tained from the court to that effect ; and it seems that the general practice of that country is to refrain from grant- ing the request of the prosecution in this regard, until the court has been assured that without such evidence it would be improbable that a conviction could be obtained. Koscoe's Cr. Ev. 8th Ed. .§ 130. It also would appear that this consent is not sufficient in itself to render the ac- complice competent as a witness in those courts, until he has first been acquitted of the crime at issue, which ac- quittal is usually obtained by a direction of the court to the jury to that effect, before the trial of the co-defend- ant is brought on. Id. This rule also appears to be in force in some of our states. Meyers v. State, 3 Tex. App. 8 ; State v. Roberts, 15 Mo. 28 ; Fitzgerald v. State, 14 Mo. 413. In this country, however, the general rule is that an accomplice is competent as a witness either for or against the other defendants unless jointly indicted, and even then if separately tried. Salander v. People, 2 Colo- rado, 48 ; State v. Crowley, 33 La. Ann. Y82 ; State v. Dietz, 67 Iowa, 220 ; Parsons v. State, 43 Ga. 197 ; Lee v. State, 21 Ohio St. 157 ; Compton v. State, 11 Fla. 247 ; McKenzie v. State, 124 Ark. 636 ; People v. Whipple, 9 Cow. (N. Y.) 707 ; People v. Garnett, 29 Cal. 622; Peo- ple V. Costello, 1 Den. (N. Y.) 83 ; Foster v. People, 18 Mich. 266 ; Allison v. State, 14 Tex. App. 402 ; Crass v. THE DEFENDANT AND ACCOMPLICES. 49 People, 49 111. 153 ; U. S. v. Hunter, 1 Cranch. (D. C.) Co. Ct. 446 ; State v. Pattie, 42 Vt. 495 ; Lindsay v. People, 63 N. Y. 143 ; State v. O'Brien, 3 Vroom (N. J.), 414 ; Carroll v. State, 5 Neb. 31 ; Lee v. State, 51 Miss. 566 ; Lucre v. State, 7 Baxter (Tenn.), 148 ; U. S. v. Hanway, 2 Wall Jr. (U. S.) 139 ; Crutchfield v. State, 7 Tex. App. 65; Jeffries v. Com., 84 Ky. 237; State v. Gigher, 23 Iowa, 318. It would also appear that the fact that the accomplice had been promised immunity for so testifying possesses no disqualifying effect, since it is to the confessions of the defendant alone that the rule in regard to confession given under such circumstances ap- plies. People V. O'Neil, 48 Hun, 36 ; 109 N. Y. 251. In this state co-defendants and accomplices are competent witnesses without the consent of the court. People v. Jaehne, 103 N. Y. 182 ; People v. O'Neil, 109 Id. 251. In those states where the rule is still in force, that an accomplice cannot be a witness unless the assent of the court is first obtained, it does not appear that it is neces- sary that such consent should be expressed in any pre- scribed form, nor that any previous order to that effect should have been made. Neither does it seem to have any bearing upon the question of the competency of the accomplice, whether he desires or consents to become a witness, but may be forced to testify by either party, when he is otherwise competent, and may be compelled to answer all questions which may be put to him. He is, however, clothed with the same privileges pertaining to other witnesses, in regard to answering questions incriminatory in their nature. It has been held, however, that this privilege does not exist, where it is provided by statute that imder certain circumstances no answer of the witness can be 4 •60 THE COMPETENCY AND EIGHTS OF WITNESSES. used against him upon any subsequent criminal proceed- ings, since under those conditions the witness is abun- dantly protected, and in those cases he must answer make to all questions. Bedgood v. State (Ind.), 17 N. E. Rep. 621, 623. Also, where the accomplice is aware of his privilege to refuse to answer certain questions, and yet gives incrim- inatory testimony, he must continue in his course, and cannot halt just before the climax and claim his privi- lege. Foster v. People (Mich.), 8 Am. L. Reg. N. S. 494 ; Com. V. Price, 10 Gray (Mass.), 4Y2. § 25. Cross-examination of. Upon the cross-exam- ination of an accomplice, the defense are allowed great latitude for the purpose of impeaching his credit as a witness, and casting doubt or suspicion upon his testi- mony. Marler v. State, 67 Ala. 55. He is bound to disclose his own turpitude in the transaction for which the accused is on trial. Atliertori's Case, 1 C. H. Rec. 159. Thus it may be shown that the accomplice has been promised some substantial benefit from the state, or, if no promise has been given, that he expects to gain some reward or favor from his course. People v. Langtree, 64 Cal. 256 ; U. S. v. Hinz, 35 Fed. Rep. 272. Also, held reversible error to refuse to permit the defense to show by cross-examination that the accomplice testi- fying against his co-defendant had been promised money if he would testify for the state in the manner and sub- stance he was doing. Tullis v. State, 30 Ohio St. 200. Also, a new trial was granted, where the court refused to permit the question addressed on cross-examination, to the accomplice testifying for the prosecution against his fellow : "If Allen is convicted, do you expect to be THE DEPENDANT AND ACCOMPLICES. 51 prosecuted ? " The appellate court held that the defense was entitled to show that the witness " expected to be a gainer " by the conviction of the defendant. Allen v. State, 10 Ohio St. 287. It has also been held that a person who turns state's evidence and swears to an offense in which he participated, thereby waives his privilege against criminating himself in that matter, and has no right to set it up as to state- ments made to his counsel, or refuse answering himself. This privilege and all others are waived by a state's evi- dence in regard to the facts in controversy. He must disclose fully. Hamilton v. People, 29 Mich. 1Y4. To preserve this privilege in such cases might work the greatest injustice toward the party on trial, since it might withhold the only means of contradicting and im- peaching the accomplice. Jones v. State, 65 Miss. 179. If an accomplice fully aware of his privileges still volunteers as a witness in a criminal case, he must an- swer all questions, and cannot be allowed to state only such facts as he pleases, and withhold other facts. Com. V. Price, 10 Gray (Mass.), 472. § 26. Accomplice must toe corrolborated. While the law permits an accomplice to testify against his fellows, and declares him to be a competent witness in all legal proceedings, yet the courts and legislature in the ma- jority of the states, clearly perceiving the danger always surrounding testimony of this character, have wisely declared that no man shall be convicted of an offense upon the uncorroborated testimony of his accomplice. It seems the contrary is the rule in England, and in that country a prisoner may be convicted upon the uncor- roborated evidence of his accomplice. Eoscoe's Ev. 8th Ed. p. 201. 52 THE COMPETENCY AND EIGHTS OP "WITNESSES. The law in this respect, in the United States, is much more in keeping with the principles of common sense, as well as with those of justice. In the first place, such evidence is almost invariably given through feelings of hatred, envy, malice or revenge toward the defendant, or else from the hope of some benefit, express or implied. Now experience has demonstrated to all men that the individual who bears witness through enmity, or for his own future or present advantage, is not at all likely, on the one hand, to lessen the value of his services by withholding aught which will increase his importance, and on the other hand will not be backward in adding details or giving a color to events which they may not rightfully be entitled to. We have unfortunately many cases where malignity, covetousness or fear has indeed impelled the accomplice to manufacture facts from slight foundations, or wholly fabricate his statement. Such being the indisputable facts regarding the testi- mony of accomplices, it necessarily follows that their evidence should always be carefully scrutinized, and facts showing criminality should be proved, independent of such evidence. The enlightened state of the criminal law in most of the states is fully exhibited in its dealing with this question, by which it is explicitly declared, that no conviction shall take place upon the uncorrobo- rated testimony of an accomplice,; but, on the contrary, it is indispensable that he be corroborated by other evidence, which tends to connect the accused with the commission of the crime of which he stands charged. State v. Cliyo Chiack, 92 Mo. 395 ; Irwin v. State, 1 Tex. App. 301 ; N. Y. Or. Code, § 399 ; U. S. v. Troax, 3 McLean, 224 ; Com. V. Holmes, 127 Mass. 424 ; Com. v. Snow, 111 Id. 411 ; Carroll v. Com., 84 Penn. St. 107 ; State y. Willis, THE DEFENDANT AND ACCOMPLICES. 53 9 Iowa, 582 ; State v. Schlegel, 19 Id. 169 ; Upton v. State, 5 Clark, 465 ; People v. Clough (Cal.), 15 ; Pac. Kep. 5 ; Childer v. State, 52 Ga. 106 ; Oreen v. State, 55 Miss. 454 ; Cra/^ v. 5'tofe, 3 Kan. 450 ; Bowling v. Com., V4 Ky. 604 ; State v. ^ayne, 23 La. Ann. T8 ; ^Stofe v. Stanley, 48 Iowa, 221 ; LumpJcin v. State, 68 Ala. 56 ; Territory v. Neligh (Ariz.), 10 W. Coast Eep. 209 ; Contra, Bacon v. State, 82 Fla. 51 ; People v. O'Brien, 60 Mich. 8 ; J.ZZen v. State, 10 Ohio St. 288 ; Stocking v. ^Stofe, 7 Ind. 326 ; Collins v. People, 98 111. 584 ; State v. i3a?/er (Vt.), 10 N. J. 398 ; State v. Hol- land, 83 N. C. 624 ; State v. Pattier, 42 Yt. 495 ; State V. Litchfield, 58 Me. 267 ; /Sto^e v. Betsall, 11 W. Ya. Y03 ; State v. Stehbins, 29 Conn. 463. In New York State, such corroboration is required by statute : " A conviction cannot be had upon the testi- mony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime." Cr. Code, § 399. Corroboration of an accomplice's testimony is absolutely essential. People v. Mahoney, 73 Hun, 601 ; 56 St. Eep. 143 ; 26 Supp. 257 ; People v. Davis, 21 Wend. 309 ; People v. Evans, 40 N. Y. 1. It has also been held that though there be other evi- dence besides that of an accomplice which tends to con- nect the defendant with the commission of the crime charged, the defendant is entitled to have the jury charged that no conviction can be had upon his testimony unless he be corroborated by such evidence as tends to connect the defendant with the crime at issue. People v. Thomson, 3 Cr. Rep. 562. But held no error for the court to refuse to charge in relation to such facts, "that they must be inconsistent with the innocence of the de- 54 THE COMPETENCY AND EIGHTS OF WITNESSES. fendant and exclude every hypothesis but that of guilt." People V. Ogle, 104 N. Y. 511 ; aff'g 4 Cr. Eep. 349. But a person who, without knowledge of a burglary, innocently assists in secreting the proceeds thereof, is not such an accomplice whose testimony requires corrobora- tion. People V. Bicker, 1 Cr. Eep. 19 ; 22 St. Eep. 652 ; 4 Supp. YO. Neither does this rule as to corroboration apply when the alleged accomplice denies that he is guilty of criminality. It is only operative in those cases where the witness goes upon the stand and acknowledges his guilt, but not where the witness appears in obedience to a subpoena and denies all complicity in the offense at issue. Pollock v. Pollock, 71 N. Y. 137. § 27. As to extent of corroboration. The next ques- tion to be considered is the extent to which corrobora- tion must go, in order to meet the requirements of the law in that respect. In the first place the corroboration must be outside of the testimony given by the accomplice, and therefore one or more accomplices cannot corrobo- rate each other, but, the testimony of each accomplice must be corroborated by other evidence. State v. Will- iamson, 42 Conn. 261 ; TJ. 8. v. Hinz, 35 Fed. Eep. 272 ; Com. V. Price, 10 Gray (Mass.), 472; RexY. Nookes, 5 C. & P. (Eng.) 326. It is manifest that the law does not imply that the corroboration under consideration must be complete in every detail and upon each point, for should such be the intention of the law, the testimony of the accomplice would be unnecessary. The rule has been stated to be as follows : "In cases where corroboration is required, there has been some diversity of opinion in the authorities as to the particular facts which should be corroborated, and the extent of the corroboration needed in order to com- THE DEFENDANT AND ACCOMPLICES. 55 ply with the rule ; but it is now conceded to be the gen- eral rule that it should tend to show the material facts necessary to establish the commission of a crime, and the identity of the person committing it. When an offense was formerly proven by accomplices, it was the usual practice of trial courts to advise an acquittal, un- less such evidence was in some respects corroborated by other testimony (although at common law a conviction upon the evidence of the accomplice alone was sustain- able). In those cases the extent and degree of corrobora- tion rested in the discretion of the trial court, and nec- essarily varied according to the circumstances of the case. Although such cases are not strictly analogous to those where corroboration is required by statute, they yet fur- nish some help in determining the degree of proof required in the latter case." People v. Plath, 100 N. Y. 592. The court also says : " It is not necessary that the corroborative evidence of itself should be sufficient to show the commission of the crime, or connect the defend- ant with it. It is sufficient if it tends to connect the defendant with the commission of the crime. Nor need the corroborative evidence be wholly inconsistent with the theory of the defendant's innocence. The court, before it should submit the case to the jury, should be satisfied that there is some corroborative evidence fairly tending to connect the defendant with the commission of the crime, and when there is, then it is for the jury to deter- mine whether corroboration is sufficient to satisfy them of the defendant's guilt. As we said in People v. Ever- hardt, 104 N. Y. 591, the law is complied with if there is some evidence fairly tending to connect the defend- ant with the commission of the crime, so that the connec- tion will not rest entirely upon the evidence of the accom- 66 THE COMPETENCY AND EIGHTS OF WITNESSES. plice." People v. Elliott, 106 N. Y. 292 ; T Cr. Eep. 126 ; 8 St. Kep. T03. See also People v. O'Neil, 109 N. Y. 267 ; People V. Jaehne, 103 Id. 282 ; People v. Hoogkerk, 96 Id. 149 ; People v. Byland, 97 Id. 126 ; People v. Sher- man, 103 Id. 513 ; People v. Bicker, 7 Cr. Eep. 22 ; People V. McCallam, 6 Id. 543 ; aflE'd 4 St. Eep. 291 ; 103 N.Y. 587 ; People v. Sharp, Id. 388 ; People y. Thompson, 3 Id. 562 ; People v. Range, 3 Id. 85 ; Berry v. People, 1 Id. 57 ; People v. Kerr, 6 Id. 406 ; People v. Courtney, 28 Hun, 589. Corroborative evidence which the jury may fairly and reasonably consider as tending to connect the accused with the commission of the crime charged is sufficient to sustain a conviction on the testimony of an accomplice. People V. Christian, 78 Hun, 28 ; 60 St. Eep. 814 ; 29 Supp. 271 ; State v. Welles, 9 Iowa, 582. The same principle was laid down in a trial for murder, where the accused was convicted upon the testimony of an accomplice, and it was held that the jury were justified in finding that the evidence of the accomplice had been sufficiently corroborated by the other evidence in the cause. People v. Wayman, 38 St. Eep. 747; 128 N. Y. 585. The general rule seems to be that while the corrobora- tion should be of some fact deposed to which goes to show the guilt of the accused independent of the testi- mony of the accomplice, yet it is not required that such testimony be corroborated in every material part, nor that the whole case should be proved outside the testi- mony of the accomplice. Craft v. State, 3 Kan. 450 ; People V. Hoogkerk, 96 N. Y. 149. But where the de- fendant was charged with forgery, the corroboration ■ merely consisted in showing that the accused was present at the bank at the same time, and his statement made THE DEFENDANT AND ACCOMPLICES. 57 some time after the passing of the check and while under arrest, that he knew the guilty party. The court held that the corroboration was insufficient to secure a conviction. People v. Elliott, 5 Cr. Eep. 204. On the other hand, when the accusation was larceny of sheep, and a search of the premises of the accused and the home of the accomplice resulted in finding the feet of sheep which resembled each other, and where the skins of sheep were found where the accomplice had stated them to be hidden, it was held sufficient corroboration. Kos- coe's Ev. (Eng. ), p. 203. But where the accused were upon their trial for an assault in which the complainant was at- tacked by four unknown men, from one of whom he had torn a piece from his coat during the struggle, by which the assailant was afterwards discovered. The latter turned state's evidence and testified against all the de- fendants. His was the only evidence connecting them with the crime, and the court held it sufficient to convict. Smith's and Davis' Case (Eng.), 1 Leach, C. 0. 4T9. But where the accused was charged with altering a forged check, and the corroboration of the testimony of the accomplice consisted in the fact that the defendant was seen in the company of the accomplice about the time the offense occurred, and under circumstances sus- picious in their nature, the court held the corroboration to be insufficient. Peciple v. Courtney, 1 N. Y. Cr. Eep. 64. But upon a trial for forgery, where the corroboration consisted in showing that the defendant had visited the office of the party whose name was forged, under a false pretense, that while there he had the opportunity to look at the party's cancelled checks and that some of such checks disappeared simultaneously with his departure 58 THE COMPETENCY AND EIGHTS OF WITNESSES. from the office. Held sufficient to justify the finding of the jury. People v. Everhardt, 104 N. Y. 592. Also, proof that a boy who had stolen a horse was at the de- fendant's at the latter's invitation, and that the route the boy should take was traced on paper in the defendant's handwriting, was held sufficient to corroborate the boy's testimony that the defendant participated in the stealing. People V. Wiley, 48 St. Eep. 498 ; 20 Supp. 445. A wife of an accomplice may be used to corroborate the testimony of her husband. State v. Moon, 25 Iowa, 128 ; Blackburn v. Com. 12 Bush (Ky.), 180 ; People v. Everhardt, 104 N. Y. 592. It has also been held that a confession or admission of the accused is competent and sufficient corroboratory evidence. People v. Cleve- land, 49 Cal. 578. While an accomplice is generally used against his fel- low defendant, yet he is also competent for his co-defend- ant, and may give evidence for him. Moore v. Tracey, 7 Wend. 229 ; Mahesey v. People, 6 Park, 114. § 28. Accomplice defined. Since we have seen the position in which an accomplice stands in the eyes of the law it will be well to understand exactly what acts or conduct on the part of the individual bring him within the classification of being an accomplice with those stand- ing trial. An accomplice is defined as one who ' ' knowingly, vol- untarily and with common intent with the principal offender, unites with him in the commission of a crime." Whart. Cr. Ev. §440. This participation, however, must be wilful and real, for co-operation given with no crim- inal intent but induced through ignorance of the nature or character of transaction, from being accidentally present, or voluntarily entered into for no other purpose save to THE DEFENDANT AND ACCOMPLICES. 69 expose and punish the perpetrator of the contemplated crime, does not bring the individual standing in such a position within the definition of accomplice. State v. McKean, 36 Iowa, 343 ; People v. Noelke, 94 N. Y. 13T ; People V. Smith, 1 N. Y. Or. Eep. Y2 ; People v. Farrell, 30 Cal. 316 ; People v. Barrie, 49 Id. 342. Thus one who purchases liquor sold in violation of law is in no sense to be considered as an accomplice of the person making such illegal sale. William v. State, 55 Ga. 391 ; Com. v. Doivning, 4 Gray (Mass.), 29 ; People V. Smith, 1 N. Y. Or. Eep. T2 ; Trustees, etc., v. Moore, 18 111. 407. Also, one who purchases a lottery ticket for the sole purpose of detecting and aiding in the conviction of the individual making a sale in violation of the laws against lotteries, is not an accomplice. People v. Noelke, 94 N. Y. 137 ; U. S. v. Moore, 19 Fed. Eep.' 39 ; Bates v. U. S., 10 Id. 92 ; U. S. v. Whittier, 5 Dillon (U. S.), 35, 39 ; U. S. V. Cottingham, 2 Blatchf. (U. S.) 470. Thus it has been held that the female upon whom an abortion was performed is not to be regarded as an ac- complice, but rather as the victim. People v. Vedder, 98 N. Y. 630 ; 3 Or. Eep. 32 ; People v. Bliven, 112 N. Y. 79 ; nor a woman who accompanies another to a physician's office, when the latter submitted, but not in the presence of the former, to an operation for abortion. Com. V. Drake, 124 Mass. 21. A person who in no way aided or abetted in a murder, but in whose hands a knife was placed by the murderer after the murder, is not an accomplice. People v. Ogle, 6 Cr. Eep. 165 ; 104 'N. Y. 511. An informer, it has been held in some states, does not come under the head of an accomplice. State v. McKean, 36 Iowa, 343 ; People v. Farrell, 30 Cal. 316. But on what principle such a broad and unlimited rule 60 THE COMPETENCY AST) EIGHTS OF WITNESSES. can be applied it is difficult to see, for if he had know- ingly, and for no proper motives, joined in the commis- sion of the crime, touching which he gives his testimony, he most clearly falls under the definition of an accom- plice. Every accomplice, when he turns state's evidence, does by that very act become an informer, and, therefore, to lay down the sweeping rule that no informer is to be classified as an accomplice, would render the accepted legal definition of an accomplice as of little value. § 29. Decoys, detectives and spies. — The rules regard- ing accomplices do not apply to detectives, or decoys used for detecting the criminals, who may join any organiza- tion, or ally themselves with individuals, for the express purpose of ferreting out the crimes or illegal conduct or methods of those with whom they join themselves. None of the discredit or suspicion which attaches to the testi- mony of accomplices clings to them, nor are they or their testimony subjected or governed by any of those restric- tions which apply to that given by accomplices. Camp- bell V. Com., 84 Penn. St. 18Y ; State v. McKean, 36 Iowa, 343 ; Com. v. Wood, 11 Gray (Mass.), 86 ; People v. Smith, 28 Hun (IST. Y.),626 ; Com. v. Cohen, 127 Mass. 282 ; Berry v. People, 11 N. Y. 588 ; Com. v. Willard, 22 Pick. (Mass.) 4Y6; Bex v. Mullins (Eng.), 3 Cox, C. C. 526; Trustees, etc., v. O'Malley, 18 111. 407 ; People v. Far- rell, 30 Cal. 316 ; People v. Noelke, 94 N. Y. 138; 29 Hun, 461 ; 1 Cr. Eep. 267 ; Peoples. Emerson, 6 Cr. Eep. 157. That a prejudice naturally rises against such persons is undoubted, for the average man looks with little favor upon men who, under the guise of friendship, and through the feelings of confidence they have inspired, betray such confidence, and use it to the undoing of those by whom they were trusted. But as has been concisely stated by a THE DEFENDANT AND ACCOMPLICES. 61 learned court : " Informers or spies may be abhorred and odious, not by reason of denouncing and giving informa- tion against crimes and criminals, but for their association and participation in lawless practices. We should not, therefore, mistake and denounce the only act through which society finds redress, instead of the crimes and crim- inals thus brought to light." Trustees, etc., v. O'Malley, 18 111. 4or. Of course the question may arise as to the truth of the claim made by such a witness as to his purpose in partici- pating in the illegal proceedings at issue, being solely to procure evidence against the criminals. Therefore, in order to determine whether the witness was an accomplice in fact, and that his participation in the event was for the purpose of detecting crime, and not for the object of com- mitting the crime, is the vital point, and the question of interest is to be decided by the jury. People v. Bulanger, 71 Cal. IT ; Wright v. State, 1 Tex. App. 545. The fact that encouragement was given to the defend- ant to commit the crime by the prosecutor, or that an op- portunity so to do was offered, does not constitute a de- fense, unless the original intent to commit the crime was also induced by the complainant or other person. People V. Hanselman (Cal.), 18 Pac. Eep. 425 ; Saunders v. State (Tenn.), 30 Am. Eep. 130, n. ; Dodge v. Brittain, Meigs (Tenn.), 84. Upon this point it has been held : " They (the cases) none of them go further than to say that a man may di- rect a servant to encourage the design of the thieves, and so lead them on until the offense is complete, so long as he did not induce the original intent, but only provided for its . discovery after it was formed." Dodge v. Brittain, Meigs (Tenn.), 84. 62 THE COMPETENCY AND EIGHTS OP WITNESSES. Thus, where the prosecutor had been informed that the defendants would attempt to steal his meat from the smoke-house on a certain night. He left the door unfas- tened and concealed himself with others, and seized the defendants after they had entered the smoke-house and were about to carry away the meat. Held that it was not error to charge that if the stealing was the act of one E., and with the consent of the prosecutor, and the de- fendants only aided and abetted E., the former were not guilty ; but otherwise if the plan was only to detect the crime, and not bring it about. Saunders v. State (Tenn.), 30 Am. Eep. 130, n. Also, where a detective gave in- formation of an intended burglary, the proprietor of the building left the rear door unfastened, contrary to his usual custom, and the defendant and the detective en- tered by that door, the defendant opening it. Upon en- tering the defendant was arrested by the police, who were lying in wait with the proprietor inside. It was held not error to refuse to charge that this was not burglary, and leave it to the jury whether the proprietor consented or not. State v. Jansen, 22 Kan. 498. But where a banker suspected that the defendant intended to rob his bank, and employed detectives to act as decoys and induce him to enter the bank with intent to rob it, the court held that the evidence was insufficient to war- rant a conviction for burglary. Speiden v. State, 3 Tex. App. 156. Also, where the detective urged the de- fendant to commit the burglary, and, acting under direc- tions from the owner, induced the defendant, who was reluctant and timid, to accompany him to the building, where the detective opened the doors with keys furnished him by the owner, the court held there was no break- ing on the part of the defendant. Allen v. State, 40 Ala, THE DEFENDANT AND ACCOMPLICES. 63 344. lu another case where this question arose the court used the following language : "The defendant had actually entered into an agree- ment to burglariously enter the house with intent to commit a theft, and the offense of conspiracy is complete, although the parties conspiring do not proceed to effect the object for which they have so unlawfully combined. The fact of such conspiracy once being established, the subsequent consent of the owner (or those acting for him) for the conspirators to enter the building will not affect their guilt in the least, unless the evidence shows that H. and G., or the detective employed by them, suggested the offense, or in some way created the original intent or agreement to commit the offense as charged." Johnson V. State, 3 Tex. App. 590. It has also been held that " a violation of law by one person, in order to detect an offender, will not excuse the latter or be available to him as a defense." U. S. v. Whittier, 1 Cent. L. J. 51. Whenever the evidence of a detective or decoy has been given against the accused, the latter has the right to give any explanation regarding the matter as he may desire. Thus where the defendant had been decoyed into com- mitting the crime, the appellate court held : " If he (the officer) testified truly, he was apparently conniving at and assisting in the crime charged ; and though he may have done this, as he says, not by way of enticing de- fendant into crime, but only by allowing him the oppor- tunity he sought and requested, yet it placed him in an equivocal position, and the jury ought to have had the benefit of all the light the former dealings of the parties would have thrown upon the transaction." Saunders v. People, 38 Mich. 218. Decoy letters are also allowable for the purpose of 64 THE COMPETENCY AND EIGHTS OF WITNESSES. exposing vice or detecting crime. "The use of decoy letters has ever been employed, without bringing upon those who use these means the imputation either of crime or of participation therein." Com. of Excise v. Backus, 29 Hun (N. Y.), 33, 42 ; to the same effect, U. S. V. Slenker, 32 Fed. Eep. 691. Thus, where an officer, desiring to discover whether the defendant was using the United States mail to send lottery tickets, sent de- fendant the price of a lottery ticket in a letter, and in return received through the mail a lottery ticket, such evidence was held proper, and the witness was not to be discredited, merely for resorting to such means to detect the violation of law. U. S. v. Moore, 19 Fed. Eep. 39 ; Bates V. U. S., 10 Id. 92 ; U. S. v. Wliittier, 5 Dillon (U. S.), 35 ; U. S. V. Cottingham, 2 Blatchf. (U. S.) 470. CHAPTEE IV. TJNDEE SECTIONS 829 AND 830 CODE CIVIL PEOCEDUEE. Sec. 30. Preliminary. 31. Application of. 33. Interest that disqualifies. 83. What interest does not disqualify. 34. Mortgagees and mortgagors. 35. Promissory notes. 36. Partnerships. 37. Personal transactions. 38. Claims against an estate. 39. Books of account, 40. Conversations that are incompetent. 41. Conversations that are competent. 43. Conversations between deceased and third persons, 43. The rule in other cases. 44. Testimony in own behalf. 45. In behalf of co-plaintiff or co-defendant. 46. Administration. 47. Deriving title or interest. 48. Declarations of deceased. 49. Negative and affirmative. 50. Indirect evidence. 51. Proceedings under the will. 53. Objections to witness. 53. Competency restored. 54. Un4er section 830. § 30. Preliminary. Prior to the adoption of the Code of Procedure, no party to an action was competent to testify as a witness in his own behalf. This prohibition was also so extended as to exclude from the witness box all persons interested in the event of the controversy, unless the testimony so given was adverse to the interest of the party testifying. 65 66 THE COMPETENCY AND EIGHTS OP WITNESSES. By the adoption of the Codes, a procedure more in keeping with the spirit of the age was gradually adopted, which did away with these restrictions so long im- posed, until at the present time they no longer exist, ex- cept in those designated and specified cases set forth and particularized in the following section of the Code : " Upon the trial of an action, or the hearing upon the merits of a special proceeding, a party or person inter- ested in the event, or a person from, through or under whom such a party or interested person derives his in- terest or title by assignment or otherwise, shall not be examined as a witness in his own behalf or interest, or in behalf of the party succeeding to his- title or interest, against the executor, administrator or survivor of a de- ceased person, or the committee of a lunatic, or a person deriving his title or interest from, through or under a de- ceased person or lunatic, by assignment or otherwise, concerning a personal transaction or communication be- tween the witness and the deceased person or lunatic, except where the executor, administrator, survivor, committee or person so deriving title or interest is exam- ined in his own behalf, or the testimony of the lunatic or deceased person is given in evidence concerning the same transaction or communication. A person shall not be deemed interested for the purposes of -this section, by reason of being a stockholder or officer of any banking corporation which is a party to the action or proceeding, or interested in the event thereof." Code Civil Proced- ure, § 829. § 31. Application of. By the words of the statute its instructions apply only to "actions or the hearing upon the merits of a special proceeding," and are therefore not applicable to motions or other introductory proceed- UNDER SECTIONS 829, 830 CODE CIVIL PEOCED0EB. 67 ings. The spirit or meaning alone of this statute are not enough to cause the exclusion of evidence, but the case must be brought strictly within the wording of the section. Severn v. Nat. Bank of Troy, 18 Hun, 228 ; Lohdell V. Lohdell, 36 N. Y. 327. Thus one creditor cannot raise the objection that the claim allowed by the executors was proved by the party in interest. Estate of Le Baron, 6 Civ. Pro. Eep. 62. The statute does not apply in a proceeding brought against an attorney to compel him to pay over money. Be Purdy v. Stewart, 16 Week. Dig. 234. Nor to the verification of claims against decedent's estate. Matter of Frazer, 92 N. Y. 239. It has also been held that it does not apply where the plaintiff sued the defendant on an account, and latter set up an account which originally existed in his favor against plaintiff's father, alleging that the former had assumed all his father's debts for a valuable considera- tion, and offered himself as a witness to prove such trans- action had with deceased. Stephens v. Cornell, 32 Hun, 414. Neither can the statute be invoked in proofs of loss made to an insurance company by a person interested, although they relate to personal transactions with the deceased. Cannon y. N. W. M. L. Ins. Co., 29 Hun, 470. As to whether the restrictions apply to proofs sub- mitted by an alleged creditor for the purpose of enabling the surrogate to fix the penalty of a bond, the courts do not seem decided. Matter of Musgrave, 5 Dem. 427. But it is applicable to matters of probate. Snyder v. Sherman, 88 N. Y. 656. Also to examinations in surro- gates' courts. Angevine v. Angevine, 48 Barb. 417. Also to proceedings for judicial settlements of the ac- 68 THE COMPETENCY AND EIGHTS OP "WITNESSES. counts of executors and others. Burnett v. Noble, 5 Eedf. 69. Also to examinations under sections 2706 and 2710 of the Code of Civil Procedure, to discover concealed effects of deceased persons. Tilton v. Ormsby, 10 Hun, 7 ; aff'd 70 N. Y. 609. The same ruling is made upon trial of cases relating to the execution of a will. Hatch v. Peugnet, 64 Barb. 189. Also in proceedings brought for a share in the estate of a deceased father. Marsh v. Brown, 18 Hun, 319. Also upon references of disputed claims against estate of decedent. Strong v. Dean, 55 Barb. 337 ; Campbell v. Hubbard, 23 Week. Dig. 3. The statute means by "deceased persons" only the person whose estate is involved in the proceedings at issue, and none other. Matter of He Baun, 1 Connolly, 203 ; 4 Supp. 342 ; 20 St. Rep. 873. § 32. Interest that disqualifies. It is very important in this connection to know what degree of disquaUfying interest is intended by the statute. The interest which renders a witness incompetent must be certain and vested, and not contingent. The true test of such inter- est is whether the witness will either lose or gain by the direct legal operation and effect of the judgment, or that the record will be legal evidence for or against him in some other action. Wallace v. Straus, 113 N. Y. 238 ; Barton v. Scannling, 31 Hun, 467 ; Moore v. Oviatt, 35 Hun, 216 ; Matter of Hanley, 44 Hun, 559 ; Ehrman v. Scheuman, 14 St. Eep. 705 ; 22 Id. 984 ; 26 Id. 840 ; 18 Civ. Pro. Eep. 8 ; Hobart v. Hobart, 62 N. Y. 80 ; Con- nelly V. O'Connor, 117 N. Y. 91 ; Matter of Montgomery, 28 N. Y. 282 ; Sherman v. Kaufman, 1 Dem. 39 ; Todd v. Dibble, 6 Id. 36 ; Matter of Masterton, Id. 460. Neither is an attorney competent who has worked under a contingency contract. Sherman v. Scott, 27 TJNDEK SECTIONS 829, 830 CODE CIVIL PEOCEDUEB. 69 Hun, 331 ; 2 Civ. Pro. 366. Neither, upon a disputed claim against an estate for board of relatives of the de- ceased, is the plaintiff a competent witness to the agree- ment. Heyne v. Doefler, 124 N. Y. 505. In many cases the wife of a party has been excluded. Thus, where a decedent left real estate in which the wife of a contesting heir would have an inchoate right of dower, should the will be declared void, she was held to be interested in the event of the action. Steele v. Ward, 30 Hun, 555. Also, in an action brought by the heirs of a deceased grantor to set aside his conveyance on the ground of un- due influence, his widow, who as his wife had joined him in the conveyance, is, a person so interested as to be rendered incompetent to testify to transactions with the deceased. Sanford v. ElUthorp, 95 N. Y. 48. Also held, that the wife of the plaintiff in an action for specific performance of a contract to convey land is an interested person. Erwin v. Erwin, 64 Hun, 166 ; 18 Civ. Pro. 11. Neither can a widow testify to transac- tions or communications with her deceased husband, as to the execution of his deed of land in which she joined, in her action to set the same aside for fraud. Witthaus V. SchaaJc, 105 N. Y. 332 ; T St. Rep. 345 ; rev'g 38 Hun, 560. Also held, in an action to enforce specific performance of a contract to convey land with life lease to grantor and wife, that the latter, the widow of the grantor, was incompetent to testify to declarations of the deceased, as against his heirs at law. Devinney v. Corey, 1 Silv. Sup. Ct. 148. Also held, that a question to the widow as to who pro- vided for the family was inadmissible. Denise v. Denise 70 THE COMPETENCY AND EIGHTS OP WITNESSES. 4:1 Hun, 9 ; 2 St. Eep. 175. But a widow was held to be a competent witness as to a transaction between herself and deceased husband at the time of the assignment of a life insurance policy on his life, held by her as security, in an action brought by her against one claiming under such assignment. Barry v. Eq. L. A. Soc, 59 N. Y. 587. But it has been held that the mother of the testator may testify to his age. Matter of Paige, 62 Barb. 476. The fact that the witness was surety upon the bond of a non-resident executor was deemed to disqualify him. Miller v. Montgomery, 78 N. Y. 282. But it has also been held that the principal debtor may testify in an action against his surety. Wallace v. Strauss, 113 N. Y. 238. It also seems that one upon the indemnity bond of a sheriff or constable would be incompetent to testify in an action against such officer for an improper levy. Holland v. Willetts, 9 N. Y. 170. Neither can a deputy sheriff, who made a levy for the execution of which a judgment has been obtained against the sheriff, testify in the latter's behalf, who seeks to recover from the estate of the attorney, as to a parol promise of indemnity from the decedent. Barton v. Scramling, 31 Hun, 467, But the words of the statute are limited to the par- ticular issue or question concerning which the witness is to be examined. Moore v. Oviatt, 35 Hun, 216. And the interest intended by the section is a present and fixed one, — a legal interest in the judgment at the time the witness was sworn. Gourlay v. Hamilton, 41 Hun, 437 ; 1 State Eep. 555 ; Matter of Hanely, 44 Hun, 559. The fact that the witness was not interested at the TJNDEK SECTIONS 829, 830 CODE CIVIL PEOCEDUEE. 71 time the transaction or communication occurred has no bearing upon the question of competency, if there has been an interest acquired since. Farnsworth v. Ebbs, 2 Hun, 438 ; Contra, Gross v. Wilwood, 9 St. Eep. 587. Thus a possible interest as a tenant by the curtesy is not such an interest as will disqualify a witness. Matter of Clark, 40 Hun, 252. Also, where a married woman brought an action to recover back money loaned by her on an oral contract for the purchase of lands, against the executors of the deceased vendor, it was held that her husband could testify in her behalf as to transactions and conversations with deceased relating thereto. Fogal v. Page, 13 N. Y. Supp. 636. In an action of partition brought by a daughter against the widow and son, the former put in no answer, while the latter alleged that certain land had been conveyed to the granddaughter by his deceased father as an advancement which should be set off against the share allotted to her. The widow, who had joined in the deed, was held competent to testify upon the trial to prove that deed was given without consideration. Moore V. Oviatt, 35 Hun, 216. Also held, in an action by a trustee against the execu- tor of his co-trustee to have lands standing in the name of the deceased trustee declared part of the trust estate, that the husband of a deceased sister of said trustee whose children were interested in the estate did not possess a disqualifying interest. Conklin v. Snider, 104 N. Y. 641 ; 5 St. Eep. 556. The plaintiff, in an action of ejectment, in which he claimed title as the son and heir of the deceased, was allowed to prove a message between the deceased and his mother, by the testimony of the latter. Eisenlord v. 72 THE COMPETENCY AND EIGHTS OP WITNESSES. Clum, 126 N. Y. 552 ; 38 St. Eep. 446. Also, in a suit of a like nature, where the plaintiff claimed under the will of the deceased, and the defendants alleged that the deceased was a grantee of a partnership, the surviving partners of which were the owners, it was permitted the grantor of deceased to testify as to what took place at the time of the execution of the deed. Bank v. Grote, 110 N. Y. 12 ; 16 St. Eep. 724. In an action for partition, where the plaintiff claimed as heir, while the defendant averred title to one portion under a deed from the deceased, she testified that she received it from an attorney, and that afterwards she delivered it to the grantor. It was held that she was incompetent to testify to the re-delivery. Shufeldt v. Watrous, 16 Wk. Dig. 198. Also held, in an action against a surviving trustee and the representatives of a deceased trustee, that the plaintiff could testify to transactions had by him with the trustees where both participated, where they were not partners, but merely tenants in common. Church V. Kidd, 3 Hun, 254. Also trustees or officers of religious or charitable insti- tutions, who serve without pay, do not come within the statute. Matter of O'Bourke, 12 Misc. 248 ; 34Supp. 45. But a trustee cannot testify to conversations with the deceased as to what he should do with certain funds, which he claimed to be allowed for, as being expended under the direction of the deceased. Welkins v. Baker, 23 Hun, 32. Also, in action for partition among heirs, where a mort- gage given by the widow of the former owner was set up as a charge against the property by the executors of the deceased mortgagee, it was held that the executors TJNDEE SECTIONS 829, 830 CODE CIVIL PEOCEDTJEE. 73 were incompetent to testify to conversations with one of the heirs since deceased to show knowledge of the giving of the mortgage on the part of such heir, as against the children of the latter. Gomerich v. Ulrich, 12 Supp. 353. In an action upon an alleged agreement on the part of defendant's intestate, to pay plaintiff for the care and support of intestate's illegitimate child, the mother of the child is competent to testify to the contract. Con- nelly V. Conner, 117 N. Y. 91. Upon the trial of an action against an administrator, a defendant is not pro- hibited from giving testimony in behalf of his co-de- fendant concerning a personal transaction with the deceased, unless he is himself interested in the event. Ehman v. Scheuerman, 14 St. Eep. 705. But the declarations of a sole administrator or execu- tor, made when not acting in the discharge of his duties, to third persons having no interest or connection with a claim belonging to the estate, are not evidence against him, in an action brought by him in his representative capacity upon such claim. Church v. Howard, 79 N. Y. 415. It has been held that hearsay evidence is admissible in the case of declarations and entries against their in- terest made by persons since deceased. Swan v. Morgan, 88 Hun, 378 ; 34 Supp. 829 ; 68 St. Rep. 768. In an action by executors against sureties on a lease, where the defense set up is false representations of lessor inducing them to sign, the lessees cannot testify to the representations of deceased lessor made to them, and communicated to their sureties, as to the value of busi- ness done on the premises. Hill v. Woolsey, 42 Hun, 481. 74 THE COMPETENCY AND EIGHTS OP "WITNESSES. Also held, in an action for conversion, where the de- fendant claimed a lien upon the property for rent under a law of another state, that she could not testify to the transaction hy which the lease was made to plain- tiff's grantor. Hammond v. Schultze, 45 N. Y. Supr. 611. A witness is also deemed interested who will be re- leased from liability to the plaintiff if the latter succeeds in an action against the executor. Bedfield v. Redfield, 110 N. Y. 671 ; 18 St. Eep. 500 ; aff'd 41 Hun, 640 ; Andrews v. Nat. BanJc of N. A., 7 Hun, 20. In an action to enforce a specific agreement to convey lands, where the supporting evidence was chiefly fur- nished by the plaintiff's mother and husband, and con- sisted largely of declarations of the deceased father of the plaintiff, who was one of the parties to the agreement, both parties were held to be incompetent, — the mother as a beneficiary under the agreement for a life lease, the husband as a prospective tenant by the curtesy in the title to be secured by the plaintiff. Devinney v. Corey, 23 St. Rep. 308 ; 5 Supp. 289 ; aff'd 127 K Y. 655. It has also been held that an applicant for letters of administration is incompetent as a witness to prove her marriage with deceased. Angevine v. Angevine, 48 Barb. 417. Where the mere fact of a conversation between a claimant against an estate and the decedent is a material fact to be proved upon the trial, the claimant cannot testify to that fact. Ellis v. Filon, 85 Hun, 485 ; 33 Supp. 138 ; 66 St. Rep. 764. Where the plaintiff was interested in the sale of a vessel by deceased, who agreed to notify him of the sale, such plaintiff cannot testify that the first he heard of TTNDBR SECTIONS 829, 830 CODE CIVIL PEOCEDURE. 75 such sale was seven years after the death of the deceased, since such is an indirect attempt to prove the failure of the deceased to notify him. Hall v. Roberts, 63 Hun, 473 ; 46 St. Rep. 355 ; 18 Supp. 480. Where, in order to show the relations of the parties to an action, the inventory of the estate of the husband of the plaintifif is not competent, in an action by her to recover her own money loaned to one who is her hus- band's committee. Davis v. Marvine, 11 App. Div. 440 ; 42 Supp. 322 ; T6 St. Rep. 822. In proceedings before the surrogate of a settlement of his accounts, an executor is precluded from testifying to conversations with his testator, concerning the basis of the claim of a third person against the estate, which has been paid by the executor, and for which he is seeking to be allowed credit as against contesting residuary legatees. Matter of Smith, 153 N. Y. 124; rev'g 89 Hun, 605. There seems to be no difference between actions or probate proceedings, as to the application of this section, to persons in a representative capacity, if they are in addition interested in the estate. Lane v. Lane, 95 N. Y. 494 ; Poucher v. Scott, 33 Hun, 495. Creditors also frequently come within the rule. Thus a creditor cannot raise the objection that the claim allowed by the executors was proved by a party in interest. Estate of Le Baron, 6 Civ. Pro. 62. Nor can he object to the verification of claims against decedent's estate. Matter of Frazer, 92 N. Y. 239. In an action by a judgment creditor of a fraudulent grantor against the administrator of deceased mortgagee to set aside a mortgage as fraudulent, neither the fraudu- lent grantor nor grantee who covenanted to pay the 76 THE COMPETENCY AND EIGHTS OF WITNESSES. grantor's debts are competent to testify to the considera- tion of the mortgage. Wilcox v. Dodge, 53 Hun, 565 ; 6 Supp. 368 ; 25 St. Eep. 5T2 ; 27 Abb. N. C. 209 ; 17 Civ. Pro. E. 248 ; Booth v. Wilson, 26 St. Eep. 173. In an action by the executors of the deceased judg- ment debtor against the judgment creditor, it was held that the latter could not testify as to personal trans- actions with the deceased. Geissman v. Wolf, 46 Hun, 289. But also held in an action brought by judgment creditors against the widow to set aside conveyances adjudged to be fraudulent, they could so testify, since they do not claim under him. Oillies v. Kreuder, 33 Hun, 314. It has also been held that where an administrator verifies a claim of his against his intestate, that fact does not establish its validity, nor is the administrator a competent witness to the facts constituting the claim. In re Child's Estate, 5 Misc. 560 ; 26 Supp. 721. But in an action by a creditor against the devisee of real estate to reach the same for debts of the testator, where the representatives of a mortgagee of such devisee are made parties, it was held that the creditor may call as a witness the devisee to show that the mortgagee did not accept the mortgage in good faith and without knowledge of the testator's debts, and such devisee was not disqualified to testify to personal transactions with such mortgagee who had died prior to the commence- ment of the action. Cunningham v. Whitford, 74 Hun, 273 ; 26 Supp. 575 ; 56 St. Rep. 285. Where plaintiff's grantor in ejectment died before trial, and defendant by his answer claimed to be the equitable owner and asked a conveyance of the premises, the defendant is incompetent as to transactions between UNDEK SECTIONS 829, 830 CODE CIVIL PKOCEDTJKE. T7 himself and deceased tending to sustain his counterclaim. Buck V. Stanton, 51 N. Y. 624. Stockholder. The words of the statute, that ' ' a person shall not be deemed interested by reason of being a stock- holder or officer in any banking corporation which is a party to the action or proceeding, " seem to be intended to apply strictly to stockholders of that description. Thus it has been held that a stockholder of a corpora- tion cannot testify in its behalf as to personal transactions with the plaintiff's testator. Keller v. West B. & C. Manufg Co., 39 Hun, 348. But also held that a stock- holder in defendant's company, which was the grantee in a deed of land encumbered by a mortgage, is a competent witness in behalf of the mortgagor, to testify to conver- sations with deceased mortgagee to show payments of money. Murray v. Fox, 39 Hun, 108 ; afif'd. 104 N. Y. 382. Legatees. All legatees or those in any way benefitted under the will of course come within the prohibitions of this section. Lane v. Lane, 95 N. Y. 494 ; Matter of Smith, 95 N. Y. 516 ; Snyder v. Sherman, 23 Hun, 139 ; 88 N. Y. 656. Those persons cannot testify to any such conversation or transaction which occurred in their pres- ence at the time of the execution of the will and its publication. What occurred at that time came within the prohibition of the Code, although the witness took no actual part in the conversation, which was wholly between the testator and attesting witness. Matter of Bernsee, 141 N. Y. 387 ; 71 Hun, 27. Thus in an action by an executor to recover money due the estate a legatee is considered interested in the event. Brigham v. Gott, 20 St. Eep. 420 ; 3 Supp. 518. Also, a legatee of the income of the estate during his life, the 78 THE COMPETENCY AND EIGHTS OP WITNESSES. principal to go to his heirs, cannot testify to any conver- sations with deceased which tend to diminish his legacy by proving advances made during lifetime of testator. Benjamin v. Dimmick, 4 Eedf . 7. This section is not in opposition to section 2544, where it is declared that a person is not disqualified or excluded from testifying re- specting the execution of a will from the fact that he is a legatee under it. That section only refers to a subscribing witness to a will, and does not authorize a beneficiary thereunder to testify where his testimony would be excluded. Matter of Eysaman, 113 JST. Y. 62 ; 22 St. Eep. 136 ; Estate of Voorhis, 1 How. N. S. 261. "Where the defendants, who were legatees, had made an agreement with the plaintiff's intestate, who was also a legatee, by which there was to be a division of the property other than that made by the will, sought to avoid the effect of such agreement by showing they were induced to sign through the false representations of plaintiff's intestate, each was allowed to testify to hearing such representations made in the presence of the other. Hard v. Ashley, 117 N. Y. 606 ; rev'g 53 Hun, 112. Also held, that one who is both executor and legatee is not disqualified from testifying in behalf of the executors as to personal transactions with the de- ceased, in an action against them. Klock v. Brennan, 82 Hun, 262 ; 63 St. Eep. 501 ; 31 N. Y. Supp. 190. In an action brought by an executor to recover money due the estate, a legatee is deemed to come within the definition of an interested person. Bingham v. Gott, 20 St. Eep. 420 ; 3 Supp. 518. Neither is a legatee nor heir disqualified from so testi- fying in an action against an insane person, where they UNDER SECTIONS 829, 830 CODE CIVIL PEOCEDTJEE. 79 have been paid their legacies and released the estate from their claims. Brown v. Klock, 2J: St. Eep. 165 ; 1 Silv. Sup. Ct. 273. (The position of a legatee in probate proceedings will be more fully discussed under that head.) Heirs and next of kin. Heirs and next of kin are also as a rule incompetent under this section. Holcomh V. Holcomh, 95 N. Y. 316; Riggs v. Am., etc., Soc, 35 Hun, 656 ; SchoonmaJcer v. Wolford, 20 Hun, 166. Thus a husband has been held included in the definition of next of kin, so as to preclude a party from being exam- ined in his own behalf, as to transactions with a deceased person, as against persons who are next of kin. Dewey v. Ooodenough, 56 Barb. 64. But the fact that a witness upon a contested applica- tion for administration by the husband of the decedent is a second cousin of decedent, and entitled as the next of kin to participate in the estate in the event of the death of numerous first cousins, does not disqualify him. Matter of Hanley, 44 Hun, 559 ; 9 St. Eep. 76. Nor is a son of decedent rendered incompetent as a witness under this section, when he is neither a party to the action nor has any present vested interest in the matter in controversy. Hirsch v. Auer, 146 N. T. 13 ; 65 St. Eep. 570. In an action brought by remaindermen against an executor and legatee of life tenant to recover property claimed by them to belong to the estate and to the re- mainder of which they are entitled, but which is claimed by the defendants to be part of the individual estate of the testator which passed to them under the will, the plaintiffs were held incompetent to testify to statements made by the life tenant that she had no property which 80 THE COMPETENCY AND EIGHTS OP "WITNESSES. she owned absolutely. Buchanan v. Miller, 22 Week. Dig. 235. But it has also been held that where this class of per- sons are concerned, evidence of the admission by the defendant to an agreement made by him with a de- ceased person, is not incompetent. Hirsch v. Avsr, 146 N. Y. 13 ; 65 St. Eep. 570. Thus heirs at law cannot testify to declarations in their own favor made by their father, under whom they claim. Sherman v. Pickells, 2 St. Eep. 160. Nor can a party claiming title through and under the deceased as heir at law, and in hostility to the deed sought to be set aside, testify to either the acts or appearance of the deceased. Smith V. Meaghan, 40 Hun, 401. But where an action was brought by an heir at law to set aside a deed of a deceased grantor on the ground of fraud, incompetency and undue influence, it was held that other heirs at law, not parties to the action, were not interested in the event thereof within the meaning of the statute. Hohart v. Ilobart, 62 N. Y. 80. §33. What interest does not disqualify. A person not a party to the action, nor interested in the event, is not rendered incompetent as a witness. Thus an executor of an estate does not come within the rule. In re Gogan, 20 Supp. 426 ; 21 Id. 260. Thus he is not held to be interested in a claim brought by the widow for moneys loaned by deceased for her and may testify in support thereof. Wiltsie v. Wiltsie, 17 St. Eep. 258. Also, where, upon a contested accounting of an executor, it was objected that he had not charged himself with certain moneys collected from an insurance company, held that one not a party thereto was com- petent to testify to an agreement with the testator, by •UNDBK SECTIONS 829, 830 CODE CIVIL PEOCEDURE. 81 which he should be reimbursed for money advanced for payment of the premiums out of the proceeds thereof, payable upon the death of the insured. Matter of Lewis, 5 App. Div. 1Y8 ; 39 Supp. 26. Thus where an heir at law is not a party to the action brought by another heir of the deceased grantor to set aside certain deeds, he may testify to personal transac- tions with the deceased. Hobart v. Hobart, 62 N. Y. 80. Also, where the estate of the intestate is insolvent, it has been held that a son of the deceased is not disqualified from being a witness, as his interest is too remote. Lathrop v. Hopkins, 29 Hun, 608. Where a wife sued to recover for services rendered by her to a third party under an agreement with her hus- band that the money received therefor should belong to her, it was held that she did not claim as assignee of her husband, and the latter was a competent witness in her behalf. Lashear v. Croissant, 88 Hun, 206 ; 34 Supp. 667 ; 68 St. Eep. 395. Also, where a wife brings an action against an executor for services rendered to the decedent, her husband may testify in her behalf. Burleyv. Barnhard, 9 St. Kep. 587. A husband may also testify in his wife's behalf, in regard to her real estate. Cooper v. Monroe, 77 Hun, 1 ; 28 Supp. 222. Thus a husband of a mortgagor who is made a party defendant in an action of foreclosure may testify in behalf of defendants. Humphrey v. Sweeting, 92 Hun, 447 ; 36 Supp. 967 ; 72 St. Rep. 70. Also, a husband who joined with his wife in a bond and mortgage on her property, and who makes no defense in foreclosure pro- ceedings brought against him individually and as ad- ministrator of her estate, is not incompetent to testify in behalf of the children by reason of his being a tenant by 6 82 THE COMPETENCY AND EIGHTS OP WITNESSES. curtesy initiate in the lands. Albany Sav. Bank v. Mc- Carty, 149 N. Y. Yl ; rev'g. 71 Hun, 227 ; 24 Supp. 991 ; 54 St. Rep. 577. Also a husband who has consented to his wife taking boarders, and receiving the compensation therefor, may testify in her behalf as to personal trans- actions with a deceased boarder. Sands v. Sparling, 82 Hun, 401 ; 63 St. Eep. 558 ; 31 Supp. 251. It has also been held that a wife may testify in behalf of her husband in his suit against decedent's estate for services rendered by her as nurse or otherwise, to dece- dent. Porter v. Dunn, 61 Hun, 310 ; Hopkins v. Clark, 90 Hun, 4 ; 35 Supp. 360. In an action against administratrix to cancel a mort- gage given to the intestate, on the ground of lack of consideration, where it appeared that the property mort- gaged had been conveyed by the plaintiff and her hus- band to a third party, who had conveyed it back, vacat- ing the mortgage, the husband was allowed to testify in his wife's behalf. Wilson v. Mimeoz, 6 Civ. Pro. 71. Also, held that a husband, agent or sister to an inter- ested party may testify to transactions with deceased in her behalf. Savercool v. Wilsey, 5 App. Div. 562 ; 39 Supp. 413. A son of a party to an action does not come within the definition, when he is not a party to the action or actually interested in the event, nor is one from whom the party acquired the title. N. Y. Smelt. & Ref. Co. v. Lieh, 56 N. Y. Supr. 308 ; 21 St. Eep. 450 ; 4 Supp. 545 ; aff'd 121 N. Y. 674. Also, a mother who had entered into a contract with decedent in behalf of her child, by which the former was to adopt the latter and leave it his property, was held competent to give evidence as to the agreement of adoption. Oodine v. Kidd, 29 Abb. N. C. UNDER SECTIONS 829, 830 CODE CIVIL PEOCEDXJEB. 83 36 ; 19 Supp. 336. Also, a mother of a bastard child has been held competent to testify to an agreement of its deceased father, to support it, and also to conversations with decedent at the time. Connelly v. O'Connor, llY N. Y. 91 ; 26 St. Eep. 840 ; 18 Civ. Pro. 8. A father, who has surrendered in advance to his minor child her unearned wages, may testify in her favor in an action by the administrator of her employer as to the arrangements between himself and decedent in reference to such employment. Shirley v. Bennett, 6 Lans. 512. The statute does not extend to a witness who is neither interested in the subject of his testimony, nor is offering it in his own behalf. Kelsey v. Cooley, 11 Supp. 745 ; 35 St. Rep. T'TS. Thus a purchaser at a sale of real estate to pay the debts of the decedent is not deemed to be within the statutory definition. Wolfe v. Lynch, 2 Dem. 610. A person who transferred his title to the property before the transaction took place is competent to testify to the transaction between deceased and him- self. Rockwell V. Peck, 13 App. Div. 621 ; 43 Supp. 196 ; 11 St. Eep. 196. Nor is a witness for a donee deemed interested, from the fact that he is her brother, has a similar claim against the estate, and he stated that he had been advised by counsel that if the donee won her action he would win his. Rix v. Hunt, 16 App. Div. 541. A person may also testify to advancement to a third person for decedent. Matter of Zinke, 90 H;un, 127 ; 35 Supp. 645 ; 70 St. Eep. 509. One to whom the testator left a sum of money to be expended for the benefit of others is not an interested party. Todd V. Vaughan, 90 Hun, 70 ; 35 Supp. 457 ; 69 St. Eep. 861. Agents. A person not a party to the action nor in- 84 THE COMPETENCY AND EIGHTS OE WITNESSES. terested in the result is not rendered incompetent from the fact that he was the agent for one of the parties, even though that party be his wife. Whitman v. Foley, 26 St. Eep. 133 ; Smith v. Meaghan, 28 Hun, 423. Also, although a party cannot testify to transactions with the deceased, he may give testimony of such a nature had with the agents of such decedent. Pratt v. Elkins, 80 N. Y. 198 ; Waterhouse v. Oilman, 6 St. Eep. 283. On the hearing of a claim against the decedent's estate, the agent who had charge of the transaction out of which the claim arose, and who was not a party to or interested in the action or proceedings, was held com- petent to testify in favor of the claimant, as to conversa- tions between himself and the decedent. Ketcham v. Holden, 88 Hun, 482 ; 34 Supp. 8Y0. Neither does the prohibition apply to transactions or conversations had with the deceased agent of the adverse party. Hildebrant v. Crawford, 65 N. Y. 107 ; Plainer V. Plainer, 78 Id. 90 ; Pratt v. Elkins, 80 Id. 198. But where an agent lends money and takes a note payable to his principal or bearer, and afterwards buys the note and dies, in an action upon it by his administrator the defend- ant cannot testify to personal conversations with de- ceased at the time the note was given, so as to prove usury. Jackson v. McLure, 5 "Week. Dig. 448. Also, an agent may testify to transactions and conversations between his principal and deceased in favor of his prin- cipal. Nearpass v. Oilman, 16 Hun, 121 ; aff'd 104 N. Y. 506. Also held, that where an agent was sued for conver- sion, and justified the taking under a chattel mortgage given to his principal by deceased mortgagor, he may avail himself of the restrictions of the statute to the UNDER SECTIONS 829, 830 CODE CIVIL PEOCEDXTEE. 85 same extent as his principal. Gordon v. Barney, 43 Hun, 633 ; 6 St. Eep. 181. § 34. Mortgagors and mortgagees. A mortgagor is prohibited from giving testimony as to transactions which occurred between himself and a deceased mort- gagee, which tend to contradict the mortgage, in an ac- tion of foreclosure brought by the executors of devisee of the mortgage. Smith v. Hazard, 4 Hun, 418. Nei- ther can a mortgagee testify as to the non-payment of any money as principal or interest on a bond and mort- gage, as against the representatives of a deceased mort- gagor. McMurray v. McMurray, 63 Hun, 183. But a pripr mortgagee may prove notice by the mortgagor to a person who takes a second mortgage on the property. Clarh V. McNeal, 114 JST. Y. 287 ; 14 St. Eep. 507. In an action by an executor to foreclose a mortgage given to the deceased, the defense was that it was given as collateral security, and it was held on the trial that the mortgagor could not testify upon the trial that he had seen a paper signed by himself and the deceased, nor state its contents. Hadsall v. Scott, 26 Hun, 617. Nei- ther can a subsequent mortgagee, also a defendant, tes- tify to conversations with the deceased in his own be- half. Id. In an action to foreclose a mortgage against joint obligors, one of two cannot testify as to the fact that the mortgage was given in payment of a gambling debt owed by him to the deceased mortgagee. Luetchford v. Lord, 132 N. Y. 465. Also, where the mortgagee sold a mortgage to plaintiff's decedent, it was held in an action to foreclose the same that the vendor could not testify as to conversations with decedent at the time the mortgage was given. Smith v. Cross, 90 N. Y. 549. Also, where 86 THE COMPETENCY AND EIGHTS OF "WITNESSES. the plaintiff produced at the trial a written assignment of the mortgage, which purported to have been executed by the deceased, and testified that he knew the hand- writing of the deceased, it was held improper to ask him if he saw the instrument signed. Howell v. Mainwaring, 3 St. Eep. 564 ; aff'd 28 Id. 982. A husband who joins with his wife in executing a mortgage on the latter's lands, and who is made a party defendant and sought to be charged with any deficiency which may arise from the sale of the premises in an ac- tion brought by the executor of the assignee of the mort- gagee, cannot testify to transactions with deceased which tend to show usury. Whitehead v. Smith, 14: Hun, 531 ; aff'd 81 N. Y. 151. But where a husband and wife both united in a mortgage on land owned by the former, and the former died, devising the premises to his wife, the wife was held competent to testify against the assignee of the mortgagee as to conversations and trans- actions between her husband and the mortgagee in rela- tion to the mortgage. Holcomb v. Campbell, 118 N. Y. 46 ; 27 St. Eep. 848. In an action brought by an exec- utor to foreclose a mortgage for $1,000, where the defense was usury, the mortgagor was held incompetent to tes- tify when and where the money was paid him, but his wife was allowed to testify that she was present at the time and saw deceased pay over the money to her hus- band, and heard the latter say, "That is just as we agreed, $950." Wilson v. Reynolds, 31 Hun, 46 ; aff'd 98 N. Y. 640. But held that a mortgagor who, after conveying the mortgaged premises, has been made defendant in fore- closure proceedings, but against whom no money judg- ment has been asked, and by whom no answer has been TJNDBK SECTIOKS 829, 830 CODE CIVIL PROOEDUEB. 87 put in, is yet incompetent to testify ia favor of his grantee in regard to a personal transaction between him- self and plaintiff's intestate. Smith v. Hathorn, 25 Hun, 159. Eeversed in other points, 88 N. Y. 211. § 35. Promissory notes. As a general rule, the sur- vivor of joint makers of a note is competent as a witness to transactions with his deceased co -maker. This rule is subject, however, to the qualification that if it is to the interest of the witness to make his co-maker liable, as well as himself, and his testimony goes to prove their joint liability, and consequently the duty of co-distribu- tion between them, then the prohibitions of the statute apply. Sprague v. Swift, 28 Hun, 49 ; 3 Civ. Pro. 34. To render such a witness competent it must appear that the deceased maker was either a surety for the witness, or that as between themselves each was not liable to con- tribute to the payment of' the note. Wilcox v. Corwin, 117 N. Y. 500 ; rev'g 50 Hun, 425. This distinction must be ever borne in mind in the examinations of the various decisions upon this point. In an action upon a promissory note against the per- sonal representatives of decedent, plaintiff's testimony as to why he borrowed money from the deceased instead of asking payments on the note is not rendered admissible by the production of testimony given by the deceased on another action, and which did not refer to the loan. Ward V. Holmes, 19 Wk. Dig. 121. Where a promissory note executed by a deceased person is read in evidence by those who represent him, the living party to the 'document cannot testify to whatever was said and done when it was executed. Matter of Callis- ter, 153 N. Y. 294. In an action on a joint and several note, one maker 88 THE COMPETENCY AND EIGHTS OP WITNESSES. can prove an usurious agreement with the deceased payee, whose executrix is the plaintiff, if the testimony is offered only on behalf of the co-maker. Ely v. Clute, 19 Hun, 35. But in an action upon a note made by the defendant and payable to his wife, since deceased, or bearer, and which came into the hands of a third party, he cannot prove that the note was without consideration. Benedict v. Driggs, 34 Hun, 94. But the alleged maker of a note is competent to testify, in an action by an indorser, that the name signed to the note is not his signature, although the payee is dead. Saratoga Co. Bank v. Leach, 3T Hun, 336. Also, where the note was indorsed by the payee for the maker's ac- commodation, the holder does not derive title within the section, so that, in an action against indorser's executor, the maker is not disqualified from testifying to admis- sions made by the testator which tend to charge him. Converse v. CooJc, 31 Hun, 417 ; N. Y. Nat. Bank v. Jones, 9 Daly, 248. But in actions by personal representatives of a de- ceased person, upon a promissory note against maker and indorser, neither of them can be a witness in favor of the other as to transactions with the deceased, al- though they have put in different answers. Alexander V. Butcher, 1 Hun, 439 ; aff'd TO N. Y. 385. In an action against the maker of a note, evidence of statements made to him by an intermediate transferee since deceased, tending to establish a defense of payment, is inadmissible. German Savings Bank v. Slade, 15 Misc. 287 ; 36 Supp. 983 ; 72 St. Eep. 427. But where an ad- ministrator, before the death of the intestate, transferred to a third person a note purporting to have been made by intestate, and subsequently as administrator paid the UNDER SECTIONS 829, 830 CODE CIVIL PEOCEDTJEE. 89 same, and its validity is questioned by one interested in the estate, the third person to whom the note was de- livered can give testimony tending to show that the note was executed and delivered for a good consideration. Matter of McNeany, 5 App. Div. 456 ; 38 Supp. 1093. In an action brought by an administrator of the payee against the maker and surety, where the surety alone defended the action, the court held both that the maker was incompetent to testify as to any transaction with the intestate, and that the surety could not, in his own be- half, testify whether he had any interest in the note or had received any benefit from it. It was also held that the error in admitting the maker's testimony was not cured by the fact that the plaintiff afterwards testified to the same matters. Church v. Howard, 79 N. Y. 415 ; rev'g 17 Hun, 5. But where the surety alone appealed from the judg- ment, it Was held that the maker was a competent witness in his favor, since the amount of his liability had been fixed by the judgment. Bradner v. Howard, 14 Hun, 420. It has also been held that where judgment has been rendered against two joint makers of a note, and only the accommodation signer appeals, the former is a com- petent witness for the latter as to transactions with a deceased person. Allis v. Stafford, 14 Hun, 418. But see Wilkins v. Baker, 24 Id. 32. In an action against partners on their promissory note, where only one answered, on a new trial when the non-answering maker has died, his direct evidence on the former trial was read. The plaintiff then put in evi- dence his cross-examination regarding certain trans- actions with the defendant. It was held that the latter 90 THE COMPETENCY AND EIGHTS OP WITNESSES. was competent as a witness in his own behalf touching these matters. Potts v. Moyer, 86 N. Y. 302 ; rev'g 46 Supr. 182. Where the defendant was sued on his joint note, of which he was an accommodation maker, and before trial the payee died, it was held that the co-maker could not testify to transactions with the deceased. Allis v. Stafford, 13 Week. Dig. 522. Also, where the payee dies before the action brought by the indorsee for value before maturity, and the answer denies that the plaintiff is a holder for value, the defendant cannot testify to conversations with the deceased payee in reference to the note. McMillan v. Sterne, 8 Misc. 82 ; 58 St. Eep. 829. Also, where the action is upon a note made by one of the defendants and indorsed by the others to the intestate, the defendant cannot show either usury or that the time of payment had been extended by agreement between the witness and the testator; without the knowledge of the indorsers. Genet v. Sawyer, 61 Barb. 211 ; Fox v. Clark, Id. 216. But a plaintiff can testify that certain notes in suit were in her possession prior to the maker's death, and were in holder's possession at the time of such death. Mortimer v. Chambers, 63 Hun, 335. Also, in an action upon a note given to plaintiff's intestate, where the de- fense was that it had been assigned to defendant's wife, the defendant can testify that he saw the note in his wife's possession. Smith v. Sergeant, 2 Hun, 107. But a plaintiff cannot testify to its non-payment, where the defense of payment is set up. Howell v. Van Sielen, 6 Hun, 115. Also, in an action against an executor, upon a note made by the testator, which was barred unless interest UNDEE SECTIONS 829, 830 CODE CIVIL PEOOEDXJEE. 91 was paid as indorsed, the plaintiff is incompetent to testify as to the indorsements. Bedfield v. Stett, 4 St. Eep. 864. But where the action is brought by a second indorser, who has taken up the note and paid it, against ,the first indorser to recover the amount thereof, he is not precluded by the death of the maker from testifying to the circumstances of the indorsements. Kelly v. Bur- roughs, 102 N. Y. 93 ; aff'g 33 Hun, 349. Also, one to whom a note is pledged by the payee is a competent witness after the redemption of the note, in payee's action against the maker's representatives. Wil- son V. Loiu, 7 St. Eep. 672. Also, where the note was indorsed by the payee for the maker's accommodation, the holder is competent to testify to admissions of testator tending to charge him, in an action against the indorser's executors. Converse v. Cook, 31 Hun, 417. But where the issue is, that the note was indorsed at the request of the deceased for a special purpose, and afterwards diverted by such deceased person, the indorser cannot testify as to the personal request of deceased. Ballade v. Gerlach, 132 N. Y. 548 ; 4 Silv. Ct. App. 74. But indorsers not a party to the action, and who have not been charged on a note in a suit brought against the maker, are competent to prove conversations with deceased owner to defendant showing payment. Near- pass V. Oilman, 104 N. Y. 506. So also may an agent of deceased who signed the note in his own name be com- petent. Id. But a plaintiff in an action against an executrix can- not testify as to notes made by deceased to the order of, and indorsed by, plaintiff, when the transaction had was personal between them. Strong v. Dean, 55 Barb. 337. In an action upon a promissory note, where the defend- 92 THE COMPETENCY AND EIGHTS OF WITNESSES. ant interposed a counterclaim for rent due from the plaintiff's intestate, he was held incompetent to answer whether he had ever received any money from the intes- tate or any one representing him. Baldwin v. Smidt, 5 Hun, 454. Neither can a defendant testify as to the consideration, in an action upon a bond, by the administrator of the obligee. Stanley v. Van Alstyne, 28 N. Y. 375. It has also been held upon a reference of a disputed claim by an executor against the estate of deceased per- son founded upon a promissory note, where the defend- ant set up the statute of limitations, that the plaintiff and other witnesses who were beneficiaries under the will to a third of the amount collected, were incompetent to testify that the indorsements on the note were made by the plaintiff during the lifetime of plaintiff's testator. Mills V. Davis, 113 N. Y. 243 ; 22 St. Eep. 580 ; rev'g 41 Hun, 415. But where the contestants of an account examine an executor as to personal transactions with the testator, and establish such executor's personal liability on the note in question, the executor may testify concern- ing the entire transaction in order to relieve himself of such liability. In re Beach Estate, 1 Misc. 27 ; 22 Supp. 1079. But in an action upon a firm note against the executor of the deceased member of the firm, a surviving partner cannot testify to any transactions with the deceased which tend to show that the latter was a member of the firm. Hunter v. HerricJc, 26 Hun, 272 ; aff'd 92 N. Y. 626. A transferee of a note has been held to be an as- signee within the definition of the section. Richardson V. Warner, 13 Hun, 13. But in an action by an accom- modation indorser of a note, to recover the amount paid UNDEE SECTIONS 829, 830 CODE CIVIL PEOCEDUKE. 93 by him from the defendants, to whom it had been trans- ferred in violation of the terms of the indorsement, it was held that the defendants were not assignees within the section. ComstocJc v. Hier, 73 N. Y. 269. A donee has also been held to be an assignee. Howell V. Taylor, 11 Hun, 214 ; Cornell v. Cornell, 12 Id. 312. But a donee of a power, with compensation for services and care, has been held not to be disqualified as a witness under this section. Matter of Chase, 41 Hun, 203 ; 4 St. Eep. 195. It has also been held, in an action brought against the maker of a note, that evidence of statements which were made to him by an intermediate transferee since deceased tending to establish a defense of payment are inadmis- sible. German-Am, Bank v. Slade, 15 Misc. 287 ; 36 Supp. 983. In an action against executors upon notes alleged to have been made by the testator, and defendant had tes- tified that the signatures were not genuine, the plaintiff was held incompetent to testify that he received the notes from the testatrix. De Verry v. Schuyler, 8 Supp. 221 ; 28 St. Eep. 233. Also held, that where the holder of a promissory note parts with its possession to the maker, it is a personal transaction within the meaning of the statute. Van Gilder v. Van Gilder, 81 N. Y. 625. In an action brought by an executor for the alleged conversion of certain notes, and plaintiff had testified that such notes were kept by the deceased prior to her death in a trunk in her room, where he saw them the morning before she died, but could not find them after- wards, and also showed that the defendant was in the room during the last hours of deceased. The notes were 94 THE COMPETENCY AND EIGHTS OP WITNESSES. afterwards found in the defendant's possession, who claimed them as a gift from the deceased. He was permitted to answer the question, "Did you take these notes from any trunk or person ? " Lewis v. Merritt, 98 N. Y. 206. § 36. PartnersMps. The term "survivor," as used in this section, is held to cover the surviving partner of a firm, and thus includes him within the statute. Green V. Edick, 56 N. Y. 613 ; Kale v. Elliott, 18 How. Pr. 198 ; Conway v. Moulton, 6 Id. 650 ; Farley v. Norton, 67 Id. 438 ; Pettit v. Geesler, 58 Id. 195. The doctrine that a surviving partner may claim the protection of this section, as to conversations or transactions with his de- ceased partner, has been extended in favor of one who is not in fact a partner, but has held himself out as such, and was so alleged in the complaint. Farley v. Norton 57 How. Pr. 438. Thus in an action by the survivor of an alleged part- nership against the personal representatives of a deceased partner, the plaintiff can neither prove the partnership nor testify as to who received the receipts of the office and paid the expenses, and carried on the business, nor that at the time of the formation of the alleged partner- ship the deceased made an entry in his presence in the firm book, for the purpose of establishing the commence- ment of the partnership at that time. Adams v. Morri- son, 113 N. Y. 152 ; 22 St. Rep. 324. Also held, in an action against the executors of a de- ceased partner upon an unpaid judgment rendered upon the firm's note, that the surviving partner could not testify in favor of the plaintiff as to personal transac- tions with the deceased tending to prove that he was a member of the firm. Hunter v. HerricJc, 26 Hun, 272. TJNDBK SECTIONS 829, 830 CODE CIVIL PKOCEDUEB. 95 Also, in an action between the personal representa- tives of deceased partners for a settlement, evidence by the plaintiff as to actions of her husband and intestate which had taken place when they were alone together, tending to show insanity, was held incompetent. Mason V. Mason, 23 Wk. Dig. 411. Nor in an action against the surviving member of a firm can the plaintiff testify to conversations held by him with the deceased partner. Green v. Edick, 56 N. Y. 613. Neither can the defendant testify to conver- sations with a deceased partner, the plaintiff being the survivor. Manning v. Schmidt, 4: App. Div. 131 ; 38 Supp. 640 ; ^74 St. Rep. 505. But this rule does not pro- tect the surviving partner unless he was absent at the time in question, for if he was present when the alleged conversation occurred, then the witness may testify to anything which took place in his presence. Kale V. Elliott, 18 Hun, 198. See, also, T3 N. Y. 269. ,, In an action against a surviving partner, a general question is inadmissible which has the effect of allowing the plaintiff to testify to transactions with the deceased partner. Bristol v. Sears, 3 Civ. Pro. 328. Neither can the defendant in an action brought against him by the surviving partner for money loaned to him by the firm testify to an agreement with the deceased partner under which he received the money. Corning v. Walker, 100 N. Y. 547 ; aff'g 28 Hun, 435. The fact that the plaintiff, a surviving partner, tes- tified to negotiations in regard to the contract in suit, between himself and the defendant, which contract was completed by his deceased partner, does not render the defendant competent to testify as to the final negotia- 96 THE COMPETENCY AND EIGHTS OP "WITNESSES. tions between himself and deceased. Goodwin v. Hirsch, 37 N. Y. Supr. 503. Where the plaintiff had assigned a mortgage to defend- ant's firm to secure a brother's indebtedness, in an action to compel a re-assignment, it was claimed to have been agreed that upon the payment of a specified amount the mortgage should be assigned. It was held that the brother was incompetent to testify to an agreement made by him with defendant's deceased partner as to the terms upon which the mortgage was to be assigned. Lawton v. Sayles, 40 Hun, 252. In an action to establish a partnership between plain- tiff's intestate and the defendants, and the title of the plaintiff's intestate in the co-partnership funds, it was held that the defendant was disqualified from testifying in regard to personal transactions which occurred between him and a deceased person from whom the plaintiff's in- testate to some extent derived title. Sheldon v. Sheldon, 84 Hun, 422 ; 32 Supp. 419 ; 65 St. Eep. 693. In an action against a surviving partner to recover back money paid for goods which were not as represented, the plaintiff is not competent to testify that the pur- chase was made in reliance on representations made to her by the deceased partner. Merit v. Brunner, 9 St. Eep. 4Y. It has also been held that a question as to whether plaintiff's intestate was a creditor of defendant's firm at a certain time involves a personal transaction. Wheeler V. Kuntz, 9 St. Eep. 496. Also held, that the testimony of the survivor of a firm must be excluded, when it is in effect a disclosure of what has occurred between the witness and the deceased in relation to the matter at issue. Nay v. Curley, 113 N. Y. 5T5 ; 23 St. Eep. 496. UNDER SECTIONS 829, 830 CODE CIVIL PEOCEDUEE. 97 In an action for goods sold and delivered, where the defense is payment, the plaintiff being the surviving member of the firm, the defendant cannot testify over plaintiff's objections that he paid the bill in question to deceased partner. Petit v. Oeesler, 58 How. Pr. 195. § 37. Personal transactions. The words "personal transactions and communications," used in the statute, are defined as embracing every variety of affairs which can form the subject of negotiations, interviews or actions between two persons, and includes every method by which one person can derive impressions or information from the conduct, condition or language of another. Heyne v. Doerfler, 124: N. Y. 505 ; 36 St. Eep. 497 ; rev'g 32 St. Eep. 960. To such an extent is this rule carried, that it has been held incompetent to show the silence of the deceased on a particular occasion, if such silence can be construed to signify assent. Fox v. Clark, 61 Barb. 216 ; Oliver v. Freligh, 36 Hun, 633. Although it must appear that such transactions and communications are personal, in order to invoke the rule, yet it is not requisite that they were private or confined to the deceased and witness. Heyne v. Doerfler, 124 N. Y. 505 ; 36 St. Eep. 497. Thus when the plaintiff presented a bill against an estate for board of the nephew and niece of the deceased, it was held that she could not be asked if she had a con- versation with decedent about the nephew and niece coming to her house. Id. The word "transactions" does not embrace all the occurrences which go to make up a cause of action, but only such as must have been communicated to the de- 7 98 THE COMPETENCY AND EIGHTS OF WITNESSES. ceased person to give them effect. Franklin v. Pinhey, 18 Abb. Pr. 186 ; rev'd on another point, 2 Eobt. 429. Thus, upon an application to revoke a will on the ground that the testator was under eighteen years of age, the mother may testify as to his birth, birth being held not to be a transaction within the meaning of the statute. Matter of Paige, 62 Barb. 476. It has also been held that this section does not extend to occurrences at which the deceased need not have been present. FrancMin v. Pinhey, 18 Abb. Pr. 186. Thus the plaintiff was allowed to testify that he de- posited the money sued for to the credit of the decedent in the bank account of the latter under a certain custom or arrangement by which he kept his funds in the de- cedent's hands in this way. Id. It was also held that a child who had been emancipated did not derive title to earnings through the father in such a sense as to bring it within the statute. Shirley v. Bennett, 6 Lans. 512. There is nothing in the rule which allows the admis- sion of this prohibited evidence, from the fact that, at the time it is offered, there is some person alive who heard it and contradicted it. The transaction alone de- termines its competency. Hatch v. Peugnet, 64 Barb. 189 ; Howell v. Taylor, 11 Hun, 214. The following examples of the decisions on the vexed question of what transactions are, and are not, within the definition of the statute, will show how much the determination of the question depends upon the circum- stances surrounding each case. Thus it has been held that a person disqualified to testify as to a transaction may yet state the names of the persons who were in the room with decedent and TTNDEE SECTIONS 829, 830 CODE CIVIL PEOCEDTTKE. 99 witness at the time, although one of them has since died. Oreer v. Greer, 58 Hun, 261. Also, testimony of a plaintiff as to the time when he learned that the decedent had paid less, as surety, than had been given to indemnify him, is competent. Ket- cham V. Holden, 88 Hun, 482 ; 34 Supp. 8Y0 ; 68 St. Eep. 807. Nor is a claimant against decedent's estate pro- hibited from testifying to advancements of his own money to third persons in payment of bills against the decedent. Matter of Zinke, 90 Hun, 127 ; 35 Supp. 645 ; 70 St. Eep. 509. Where a physician and nurse both had claims against an estate for services rendered to the decedent, the phy- sician was held competent to testify to personal trans- actions with the deceased in behalf of the nurse. Re Queen^s Est. , 13 Supp. 705. But a physician cannot prove his own attendance upon the deceased in support of his claim for compensation for services, in an action brought against an administrator. Ross v. Ross, 6 Hun, 182. Also, in a reference of a disputed claim against an estate for damages incurred in defending title to land, it was held that the plaintiff was incompetent to testify to the fact that the proper notices to the deceased grantor to defend the action were taken by him to the latter's house, and that he came away without them. Fenton v. Eggles- ton, 40 St. Eep. 936 ; 16 Supp. 721. Nor can a claimant testify that figures denoting the price and number of certain cords of wood in suit were entered in a book of deceased by his son at his I'equest, and that they agreed with the figures in claimant's book, nor can he put his own book in evidence. Harrington v. Winn, 38 St. Eep. 83 ; 14 Supp. 612 ; 20 Civ. Pro. 326. But it has also been held that where a notice to produce books has been 100 THE COMPETENCY AND EIGHTS OF WITNESSES. given and the books are proven to be lost, the plaintiff may testify to an entry which he saw in decedent's book during his lifetime, and that it was in the handwriting of the deceased. Carroll v. Davis, 9 Abb. N. C. 60. Where the transaction was with a deceased person, the assignor of the disputed claim may be asked as a witness for the claimant if she knew whether her husband ever had a written acknowledgment of any indebtedness to him from the deceased. Blass v. Morrison, 47 Hun, 218 ; 14 St. Eep. 379. The title to a cause of action by gift from a person since deceased cannot be established by mere proof of declarations of deceased imparting a gift, neither can such delivery be inferred from the testimony of the donee. Johnson v. Spies, 5 Hun, 468. But a grantor whose title is in dispute may testify the length of time he has occupied the property, that he has rented it and collected the rents. Strough v. Wilder, 49 Hun, 409. In an action brought by the heirs of a deceased grantor to set aside his conveyance on the ground of undue in- fluence, his widow, who joined in the instrument, is incompetent to testify as to personal transactions between herself and the deceased. Sanford v. Ellitliorp, 95 N.Y. 48. Also held, in a replevin suit brought against one claim- ing title as administratrix, that the plaintiff could not testify that the property was a gift from defendant's in- testate. Crane v. Crane, 5 St. Eep. 423. Neither can a widow from whom an executor claims property in her hands testify that her husband gave her the property a few days before his death. Tilton v. Ormsby, 70 N. Y. 609 ; aff 'g 10 Hun, 7. But when a hostile witness testifies, that after the death of the donor he heard the donee say UNDER SECTIONS 829, 830 CODE CIVIL PEOCEDUEE. 101 she never had the notes claimed as a gift in her posses- sion, and had never received any interest on them as hers, the donee is entitled to deny this statement, and her fur- ther stateixient, that at the time of the interview the notes were in her trunk, is competent. Rix v. Hunt, 16 App. Div. 541. "Where a widow sued a warehouseman for a piano she had deposited with him as her own, but which he had surrendered up to her husband's executors, it was held she could not testify to those transactions between herself and husband, which showed it was a gift, since the warehouseman came within the sec- tion. MulUns V. CMckering, 110 N. Y. 513 ; 18 St. Eep. 606. In an action by executors to recover securities from one who claimed them as a gift causa mortis, it was held that the plaintiff could not prove by himself and a re- siduary legatee conversations between themselves and testator disproving the gift. Cornell v. Cornell, 12 Hun, 312. But a wife is also incompetent to testify to a donatis causa mortis by her husband. Conklin v. Conhlin, 20 Hun, 2Y8. Also held, in an action by executors to recover prop- erty from those who claim to hold it as a gift from de- ceased, that his declarations, inconsistent with the gift, were incompetent. Qraves v. King, 15 Hun, 36T. Also held incompetent to allow evidence of the plain- tiff that certain clothing and money given to him by de- fendant's intestate were on account of wages due him, even though this occurred on the re-direct examination, and after he had been asked on his cross-examination if he had not received them. Vanderveer v. Vanderveer, 19 St. Eep. 1002. 102 THE COMPETENCY AND EIGHTS OP WITNESSES. But it has also been held that testimony given by a witness upon his re-examination as to personal transac- tions with the decedent is not objectionable, where he has been questioned by the counsel for the administrator on cross-examination as to the same subject. Blankman V. McQueen, 37 St. Rep. 601. In an action against an administrator it was held error to allow testimony of the plaintiff that a receipt put in evidence by the defendant to show payment had been changed since the plaintiff delivered it to defendant's in- testate. BougMon v. Bogardus, 35 Hun, 198 ; 7 Oiv. Pro. 252. But where the executor is sued in his individual capac- ity, upon a claim which grew out of matters connected with the estate, in which he had acted for the estate, it was held that the plaintiff was competent to testify as to personal transactions with the deceased. Hall v. Richardson, 22 Hun, 444 ; aff'd 89 N. Y. 636. Where an agreement between the plaintiff and defend- ant's decedent contains mutual covenants for an account- ing, the plaintiff cannot testify to the execution and de- livery of the instrument. Choffe v. Goddard, 42 Hun, 147 ; 3 St. Rep. 386. In an action to avoid a deed as to a portion of certain premises, it was held that the defendant could not be asked whether he had stated that if the deed included a certain portion he would correct the mistake of the deceased grantor. Mills v. Mills, 8 Supp. 811. In an action for money had and received by the de- fendant's intestate, where the defense was that the money was so placed in decedent's possession for the pur- pose of defrauding plaintiff's creditors, the plaintiff cannot testify in his own behalf as to whether he put UNDER SECTIONS 829, 830 CODE CIVIL PROCEDURE. 103 any property in the hands of the deceased for the pur- pose charged. Tooley v. Bacon, TO N. Y. 34. See, also. Hard v. Ashley, llY N. Y. 606 ; rev'g 53 Hun, 112. But evidence of an admission by defendant as to an agreement made by him with the deceased is not incom- petent. Hirsch v. Auer, 146 N. Y. 13 ; 65 St. Eep. 570. Where the defendant has been handed money by another since deceased, who had received the same in trust for the plaintiff, which fact was known to the de- fendant, and suit was brought against him for refusal to hand it over, he claiming it belonged to him, and had been handed him by deceased, held he could not testify to transactions relating thereto, with the deceased. Mason v. Prendergast, 120 N. Y. 536 ; 31 St. Eep. 497 ; aff'g 12 Id. 869. But where the action is against a corporation, a party may testify to transactions with a deceased person whose administrators have indemnified the defendant. Severn V. Nat. State Bank, 18 Hun, 228. Also where a corpora- tion is a defendant the plaintiff can testify to transac- tions with the president since deceased, it not appearing that he is pecuniarily interested in the action. Hunt V. P & S. S. Co., 9 Civ. Pro. 291. Where the plaintiff derived his title to a check from the party to whom the defendant delivered it and who died before the trial, it was held that the defendant could not testify to a transaction between himself and the deceased. Baubitschek v. Blank, 80 N. Y. 478 ; aff'g 44 Supr. 564. Also held, that when the mere fact that a party has had a conversation with a deceased person, to whom the opposite party stands in the relation specified in the sec- tion, is a material question, it is not competent for such 104 THE COMPETENCY AND EIGHTS OP WITNESSES. party to testify that he had the conversation. Maverick 7. Marvel, 90 N. Y. 656. But in an action against a devisee to recover the plaint- iff's share of profits according to an agreement between plaintiff and the testator, it was held that the plaintiff was competent to testify that a certain letter that he found in the testator's desk was in the handwriting of the deceased, and that it was inclosed in an envelope directed to him in testator's handwriting. Wing v. Bliss, 28 St. Rep. 198 ; 8 Supp. 500. But letters between a deceased person and one claiming under him as to a claim which was the subject of litigation are incompe- tent. Van Vechten v. Van Vechten, 65 Hun, 215. Where an action was brought to recover certain per- sonal property belonging to the plaintiff's intestate, and the defense alleged a gift from intestate of certain speci- fied notes, the proceeds of which were divided between deceased and the defendant, the defendant was held incompetent to testify to the transaction. Waver v. Waver, 15 Hun, 277. A subscribing witness to a will or codicil, who has been appointed a trustee thereunder by a surrogate's court, is not incompetent to testify to such matters. Bostwich V. Gray, 1 Silv. Sup. Ct. 235 ; Matter of Palmer, 23 St. Eep. 440. When the principal question in controversy was whether a certain transfer of property from the deceased to the plaintiff was fraudulent and void, title to which was claimed through a sale thereof under execution against deceased, it was held that evidence as to personal transactions therein between plaintiff and deceased was incompetent. Taylor v. Meldrum, 6 Civ. Pro. 235. It has also been held that interested parties cannot ■UNDER SECTIONS 829, 830 CODE CIVIL PKOCEDITEE. 105 testify to the physical condition of the deceased during a certain period, when the question calls for facts learned while witness and deceased were associated in business. Scott V. Scott, 13 St. Eep. 202. Thus held also, that the fact that the deceased suffered from paralysis at certain material time, could not be shown by an interested witness. Campbell v. Hubbard, 38 Hun, 306. Neither can such a person testify to the appearance of the testator as indicating his incompetency to make a will. Be McArt/mr^s Will, 12 Supp. 823. Also one who would become invested with an inchoate right of dower in lands of decedent should the will be declared void, is disqualified from testifying as to the mental and physical condition of decedent. Matter of Hewitt, 21 Wk. Dig. 296. Thus the sons of the deceased were held incompe- tent to testify that their father was subject to spasms or fits, or to his appearance the day the assignment at issue was executed. Holcomb v. Holcomb, 95 N. Y. 316. Nor to his powers of memory, habits, mental and physical condition. Id. A devisee is also prohibited from testifying to such matters in relation with deceased, during the last few weeks of his life. Matter of Eysaman, 113 N. Y. 22 ; 22 St. Rep. 136. But where the administrator was called as a witness by the plaintiff and examined as to the transactions in ques- tion, his own counsel may cross-examine him as to the physical condition of the deceased at that time, as it is material upon the point whether the transaction took place ; but the giving of such testimony does not thereby permit the plaintiff to testify to such facts. Herrington V. Winne, 38 St. Rep. 83 ; 14 Supp. 612 ; 20 Civ. Pro. 326. 106 THE COMPETENCY AND BIGHTS OF WITNESSES. An executor upon his accounting cannot testify as to the payment of money by him to the testator where he seeks credit for such amount. Matter of Kellogg, 104 N. Y. 648 ; 5 St. Eep. 668. But a person who presents a claim against an estate, based upon a contract with the deceased, has been held a competent witness to the con- tract upon an accounting. Matter of Frazer, 92 N. Y. 239. See Stephens v. Cornell, 32 Hun, 414. Also held that the fact that all the parties are dead, and the action is between their representatives, does not render such testimony incompetent. Hurlburt v. Hurlburt, 18 St. Eep. 407. But in an action for trespass qucere clausum for cut- ting trees, the testimony of a party in his own behalf that the deceased, while the witness was cutting the trees in the locus in quo, knew of that fact and came there, is incompetent. Oliver v. Freligh, 36 Hun, 633. On the other hand it was held, in an action upon a life insurance policy, that proofs of loss may be made by a party interested, although they relate to personal trans- actions with the deceased. Cannon v. Northwest Mut. L. Ins. Co., 29Hun, 4Y0. In an action to recover a loan which the plaintiff claimed was made by a check given to him by the de- fendant's intestate, where the defendant alleged that the check was given in business of a corporation of which he was the president, it was held that a general denial in the answer authorized the defendant to show the facts in regard to the transactions. Koehler v. Adler, 91 N. Y. 65Y. In an action by the assignee of the executor of a de- ceased lessee to compel specific performance of a cove- nant to renew the lease, the defendant was held incom- UNDEE SECTIONS 829, 830 CODE CIVIL PEOCBDUEE. 107 petent to testify to any transactions or communications with deceased lessee in relation thereto. Kolasky v. Michels, 11 St. Eep. 354. When testator's widow has acted as his amanuensis, a letter which was written by her to the contestant at the dictation of her husband was held to be admissible. Matter of Budlong, 54 Hun, 131. But a party cannot testify that he saw the deceased sign the affidavit of verification to the complaint, when the object is to prove certain admissions of the original plaintiff. Denham v. Jayne, 3 Hun, 614. Also in an action brought by ad- ministrators of persons addressed, against the writers of certain letters, it was held that the defendant was not competent to prove that letters were written or were received and retained by the persons addressed. Bes- seguie v. Mason, 58 Barb. 89. Where the plaintiff claimed as assignee of the de- ceased, and gave in evidence letters of his own to the defendant, which among other things contained state- ments of the deceased in regard to the controversy out of which the action arose, it was held that the introduc- tion of the letters did not remove the bar of the statute, and it was error to admit testimony as to personal trans- actions with the deceased about the matters contained in the letters. Farrell v. Krum, 11 Wk. Dig. 471. Where the transaction is with a defendant who is alive, evidence thereof is not rendered incompetent be- cause the other defendant is dead. Comnis v. Hetfield, 80 N. Y. 261 ; aff'g 12 Hun, 375. Also that the death of one of the defendants, before the plaintiff's examination is completed does not justify the striking out of the lat- ter's testimony already admitted as to transactions with him. Id. 108 THE COMPETENCY AND EIGHTS OP WITNESSES. In an action by a son against his stepfather to recover money he sent his mother, while she was living, to keep for him, it was held that the stepfather took the money as executor of his wife, and that therefore the son could not testify to the agreement with the mother to keep it for him. Mosner v. Bawlin, 66 Barb. 213. Also, where the plaintiffs had delivered money to their mother for certain purposes, which she agreed should be returned to them at her death after payment of her funeral expenses, and the mother subsequently became insane and the money found on her turned over to the defendants, it was held that the sons could not testify against the de- fendants to the transaction with their mother. Peters V. Peters, 3 Misc. 264. Neither can the plaintiff in an action for conversion of money belonging to the intestate testify that intestate's debtor paid the money to intestate in his presence. Crawford v. Haines, 44 Hun, 597 ; 8 St. Eep. 716. But where the land purchased by the plaintiffs had been taken in the name of the father, under an oral agreement with him to devise it to them on his death, which was done, but the will was lost or destroyed, and two sisters, heirs of the decedent, had conveyed their in- terests to the plaintiffs ; in an action against a third heir the sisters were held competent to testify to the facts of the agreement. Kommisky v. Kommisky, 2 Misc. 138 ; 20 Supp. 611. Where a brother and sister, in support of their action in ejectment against those claiming under a deceased brother, moved to set aside the latter's naturalization, it was held that as this section did not apply to matters contained in affidavits submitted on a motion, and that it appeared that said section might be successfully inter- irNDBK SECTIONS 829, 830 CODE CIVIL PEOCEDTJEE, 109 posed to defeat an action to set aside the order attacked, the motion should be denied, and the parties relegated to a proper action where the question could be deter- mined on competent evidence. Matter of McKenna, 31 Abb. N. C. 416. § 38. Claims against an estate. The claims which may be presented against an estate should be scrutinized with more than ordinary care, in order to prevent, as far as possible, the allowance of unjust or fictitious demands against parties whose mouths are sealed by death. Rix V. Hunt, 16 App. Div. 541. Claims for services. The plaintiff in an action against an estate for services rendered to the decedent during his lifetime cannot testify in his own behalf to a con- versation and interview with the deceased in regard to such services, even though he omit his own personal share in the conversation. Ross v. Harden, 42 Supr. 427. Thus in an action against an estate for work, labor and goods sold, the plaintiff was held incompetent to testify in his own behalf as to what was said by him in an attempted settlement of the claim, although the de- fendants were present at the time. Davis v. Gallagher, 124 N. Y. 487. Upon a claim by an executor for services rendered to the testatrix, he cannot testify to transactions or com- munications with the deceased, nor to what he did, tending to show an implied agreement to pay for his services. Burnett v. Noble, 5 Redf. 69. Also in an ac- tion against an executor, where a claim for services ren- dered to the defendant's testator was set up as a counter- claim, it was held that the plaintiff could not be asked, " Was it true that it all had been paid ? " Williams v. Davis, 7 Civ. Pro. 282. Neither in an action for board and 110 THE COMPETENCY AND EIGHTS OF WITNESSES. services are the declarations of the intestate competent. UnderMll v. Nichols, 8 Week. Dig. 276. Neither can a physician testify as to whether he treated the deceased professionally within six years pre- ceding his death. Boss v. Ross, 6 Hun, 182. But where both the physician and nurse have claim against an estate for services, the former is competent to testify to personal transactions with the decedent, in behalf of the nurse. Re Queen's Estate, 13 Supp. Y05. Where the plaintiff sued upon a quantum meruit to re- cover for services rendered to decedent, it was held that she could not testify that after a paralytic stroke the deceased was very feeble, or that a customary attendant was absent for a considerable period. Campbell v. Hub- hard, 38 Hun, 306. It was held that a person who was in default in paying the first instalment due for work under a con- tract was not incompetent to testify to an agreement made between the defendant's testator and plaintiff to pay the latter for completing the work. Kitchen v. Taylor, U St. Eep. 398. In an action for legal services rendered to the deceased, where the employment was disputed, it was held that he could not give evidence of the advice given by him as to the subject-matter of his employment. Brague v. Lord, 67 N. Y. 495 ; rev'g 41 Supr. 193 ; 2 Abb. N. 0. 1. Also, in such an action, the plaintiff cannot be asked whether "about the time you were introduced to deceased did you commence any action for him ? " Freeman v. Law- rence, 43 Supr. 288. Neither can an attorney testify as to what his services were, nor their value. Sommerville V. Crook, 9 Hun, 664 ; Lerche v. Brasher, 37 Hun, 385 ; UNDEE SECTIONS 829, 830 CODE CIVIL PEOCEDUEB. Ill 8 Civ. Pro. 115 ; reversed on other grounds, 104 N. Y. 157. But held in an action for conversion of jewelry by de- fendant's testator, that the plaintiff could testify to their value. Gregory v. Fichtner, 21 Civ. Pro. 1 ; 14 Supp. 891. Also, that a party could testify to value of services rendered by him to deceased, in an action to recover for the same against the personal representative. Bur- rows V. Butler, 38 Hun, 15T. But where the valuation of the services relates to personal transactions with the deceased, then it is incompetent. Brague v. Lord, 67 N. Y. 495 ; Matter of Simpson, 24 St. Eep. 685. Also held, that the plaintiff cannot state the length of time he worked on the testator's premises nor the value of his services. Fisher v. Verplank, 17 Hun, 150. Nor can one testify to the nature of the services claimed for. Taylor v. Welsh, 92 Hun, 272 ; 36 Supp. 952 ; 72 St. Eep. 316. In an action against an administrator for board fur- nished deceased, where the defense was that the deceased paid for the household supplies in lieu of board, the plain- tiff testified that she paid for the supplies herself. It was held that if by this testimony it was meant that she paid for them personally, and that all transactions were be- tween her and tradesmen, and not between her and de- ceased, it was not obnoxious to the section. Sage v. Dorr, 21 St. Eep. 635 ; 4 Supp. 568. In an action against railroad contractors for services, the plaintiff testified that he had a diagram of the bridge which was at issue, which was furnished him by one of the defendants, and which he had used. He could not say whether he received it from the deceased or living defendant. It was held competent in evidence, since 112 THE COMPETENCY AND EIGHTS OP "WITNESSES. it did not appear that it did come from the deceased. Comins v. Hetfield, 80 N. Y. 261 ; aff'g 12 Hun, 375. Where a son claims for services against his father's estate, evidence of ■what he did apart from personal trans- actions held competent. In re Merchants' Est., 6 Supp. 875. Also in a similar case, a sister of the plaintiff, who was a legatee, was held competent to testify that deceased had employed plaintiff and promised to pay wages for the services. Pursell v. Fry, 19 Hun, 595 ; 58 How. 317. "Where a claim was made for services rendered to de- ceased by the plaintiff, and it was shown that she per- formed the same in behalf of her husband and made no claim for them herself, it was held that she could testify to the contract therefor made with deceased. Porter v. Dunn, 131 N. Y. 314 ; 40 St. Eep. 776 ; rev'g 61 Hun, 300. Also held, that a husband does not claim title through, or under, his wife, but by common-law right. Hopkins v. ClarJc, 90 Hun, 4 ; 35 Supp. 360 ; 69 St. Eep. 849. Where the claim was for services rendered to deceased while sick, the plaintiff was not allowed to give in evi- dence a conversation with deceased as to the debt, from the mere fact that the defendant had testified that the plain- tiff went to the bedside of deceased, but gave no evidence of the conversation. Bowers v. Smith, 3 Supp. 105 ; 19 St. Eep. 926. A claimant who put in evidence letters written to him by the deceased, mentioning some of the services claimed for, where it appeared the claimant was present with deceased during a portion of the time that such services were rendered, cannot be asked, "What was the fair reasonable value per day of the services so performed by you, as appears by the evidence herein ? " Yates v. Boot, 4 App. Div. 439. UNDER SECTIONS 829, 830 CODE CIVIL PROCEDUEE. 113 In an action against an executor to recover for board and lodgings furnished the deceased, it seems that when the plaintiff alleges non-payment therefor, in her com- plaint, she is not bound to prove that fact. Hicks Alix- anian v. Walton, 14 App. Div. 201. Claimants against estates of decedents are ' ' neces- sarily prejudiced " within the meaning of section 2545 of the Code, by the admission in evidence of declarations of the deceased that the claim in question was not owing. Matter of Wilson, 10 App. Div. 3T1 ; sub nom. Wilson V. Maryatt, 41 Supp. 1006. Where a person makes a claim for services against the estate of deceased, in which proof is lacking of their ren- dition at the request of deceased with expectation of compensation, a memorandum found deposited with his will, directing his executors to pay the claimant a certain sum, followed by the words, "I owe him that," may, in the absence of other explanation, be connected by infer- ence with the services, and so furnish the element lack- ing in the oral proof. Matter of Gallagher, 153 N. Y. 364. Where services are rendered by one member of the same household to another, the legal presumption is that the services were gratuitous, and it is necessary to a re- covery by such claimant against the estate of a person to whom the services were rendered that there shall be clear and positive proof of an express promise to pay therefor on the part of such deceased. Matter of Pfohl, 20 Misc. 627. G4fts inter vivos. In order to constitute a valid gift inter vivos, the donor must be competent to contract, there must be freedom of will, the gift must be complete with nothing left undone, the property must be delivered by the donor and accepted by the donee, and the gift 114 THE COMPETENCY AJSTD EIGHTS OP WITNESSES. must go into immediate and absolute effect. Bix y. Hunt, 16 App. Div. 540 ; Matter of Rogers, 10 Id. 593 ; 42 Supp. 133 ; Y6 St. Eep. 133. When the parties are not upon an equality, the burden is upon the stronger party of showing that no advan- tage was taken of the weaker. Matter of Rogers, supra. A gift inter vivos may, however, be supported, al- though there is no direct and positive proof of delivery. Rix V. Hunt, 16 App. Div. 540. The delivery necessary to constitute a gift depends upon the character of the thing given. Matter of Wachter, 16 Misc. 13T ; 38 Supp. 941. Where a father, with intent to make a gift to his son, directs the bookkeeper to transfer to his own account tiie debit standing against the latter on the books, and a memorandum thereof is made, the gift is complete although the ledger entry is not made until after the donor's death. Maclay v. Robinson, 91 Hun, 630 ; 36 Supp. 530 ; 71 St. Eep. 561. A deposit of money by a wife in the name of her hus- band as trustee for a third person is a valid gift to such person, although the husband expresses an intention to, and does, control the deposit during his life. Fraleigh V. Cadman, 11 App. Div. 628 ; 41 Supp. 981. Where a husband deposits money in a savings bank to the credit of his wife, or himself or the survivor, this represents a gift to the wife if she survives her husband ; and a delivery of the pass-book by the husband to the wife is not necessary to vest the gift in her. McElroy V. Savings Bank of Albany, 8 App. Div. 192 ; 40 Supp. 340. On the other hand, it has been held that the mere possession of a savings bank book and a check which had UNDER SECTIONS 829, 830 CODE CIVIL PEOCEDTJEE. 115 been drawn by a deceased depositor is not sufficient to show a gift thereof ; an intention of the deceased to part absolutely with the possession of the property and a delivery must be shown. Dinley v. McCallagh, 92 Hun, 454 ; 36 Supp. 1007 ; T2 St. Eep. 416. But held that a delivery to a donee of a check pay- able to his order is sufficient to constitute a gift of the money. Pickslay v. Starr, 149 N. Y. 432 ; aff'g Y4 Hun, 10 ; 59 St. Eep. 603 ; 27 Supp. 616. Where there has been a complete gift, subsequent possession by the donor, if satisfactorily explained, will not divest the donee of title. Matter of Wachter, 16 Misc. 137 ; 38 Supp. 941. Where the sole witness to a gift has testified that at the time mentioned the donor executed a will, the ad- verse party has a right to the use of the alleged will, to assist him in examining the witness as to its expira- tion, and to use as evidence if it disproves the gift. Wheelan v. Yorton, 15 Misc. 625 ; 37 Supp. 344 ; 72 St. Eep. 697. As to the competency of evidence relating to the estab- lishing of gifts of this character, see section thirty-seven, ante. Gifts causa mortis. One who has testamentary ca- pacity is competent to make a gift causa mortis. Matter of Hall, 16 Misc. 174; 38 Supp. 1135. Gifts causa mor- tis are revocable by the recovery of the donor from the illness under which he was suffering at the time he made the gift. Tusch v. German Savings Bank 20 Misc. 571. A delivery to a third person for the donee is sufficient, although the donor dies before the property is handed to the donee. Id. 116 THE COMPETENCY AND EIGHTS OE WITNESSES. Also held, that a certificate of deposit is a proper sub- ject for such a gift. Id. Where the alleged donor, a few days before her death, sent for two persons, with one of whom she had left her bank book for safe keeping, and upon their arrival de- manded the book, examined it, and called upon them to witness that the book belonged to the plaintiff, to whom she handed it, and to whom she subsequently told in sub- stance to let the witness take it back with her until called for after death, it was held a good delivery and a valid gift. Callahan v. Clement, 18 Misc. 621 ; 42 Supp. 514 ; Y6 St. Rep. 514. An instrument executed and acknowl- edged by a man at the point of death, constituting a cer- tain person his attorney, with directions for disposing of his property after death, accompanied with the delivery of his bank book, is to be deemed a trust of personal property and not a mere power of attorney. Tusch v. German Bank, 20 Misc. 571. As to the competency of evidence relating to the fact of such gifts being made, see section thirty-seven, ante. § 39. Books of account. Books of account kept by a deceased party are competent in evidence, when accom- panied by the required preliminary proof. The preliminary proof necessary to admit such books in evidence must show : First : That the deceased kept no clerk, and that he kept fair and honest books. Second : That some of the goods charged have been delivered. Third : Proof by some witness who has dealt with him and settled from such books of account, that the party kept fair and honest accounts. Dooley v. Moan, 33 St. Rep. 118 ; Beatty v. Clarh, 44 UNDEE SECTIONS 829, 830 CODE CIVIL PBOCBDITKE. 117 Hun, 126 ; 8 St. Eep. 423 ; Irish v. Horn, 84 Hun, 121 ; 32 Supp. 455 ; 65 St. Eep. 641 ; Young v. Luce, 21 Supp. 225 ; 50 St. Eep. 253. When the party and the clerk who made the original entry are both dead, the book may be admitted in evidence when accompanied by the preliminary proof already alluded to and supplemented by proof of the clerk's death and proof of his handwriting. Dahin as Exr. v. Walton, 85 Hun, 561 ; Beaver v. Tay- lor, 68 U. S. (1 Wall.) 637. It has been held that an original entry in books of the testator, nineteen years before the proceedings were at issue, were competent as evidence without showing who made it. Rodman v. Hoop, 1 U. S. 85. But held, that evidence that witnesses who had never seen the books of account of a merchant had settled bills rendered to them by him, supplemented by the testimony of his book- keeper that the bills rendered were correct statements from the accounts in the books, is not sufficient to make the books competent as evidence of sales. Powell v. Murphy, 18 App. Div. 25. Entries made by a physician are admissible in evidence to show services to the deceased though relating to per- sonal transactions, if accompanied with the proper proof. Wetmore v. Peck, 19 Alb. L. J. 400. But his books are not competent to establish the rendering of services to the deceased, where, exclusive of the same, there is no proof of these facts. Davis v. Seaman et al., 64 Hun, 572 ; 21 Supp. 260. Neither is his diary admissible, unless he first proves that the entries were made by him, that he keeps correct books, and that other debtors have settled with him on the strength of the entries therein contained. Knight v. Cunningham, 6 Hun, 100. But where it was proved 118 THE COMPETENCY AND EIGHTS OF WITNESSES. that a physician had attended at the birth of one whose age was the subject, that he was in practice many years prior to the said birth and after, that he kept a register of all cases of birth, and that this was in the register at a time specified, and also the subsequent entries of a birth of a brother and sister ; it was held that the entries were competent. Arms\ etc., Admrs' v. Middleton, 23 Barb. 671. Where the defendant's testator kept the usual set of books, and in them there appeared an account with the plaintiff, it was held that the entries could be received in evidence, and were admissions that the facts therein de- scribed occurred, although the plaintiff knew nothing of the entries. Griggs v. Day, 58 Supr. 385. It has also been held that the introduction in evidence by the executors of the testator's books of account is not such testimony of the deceased as will render admissible the testimony of a legatee as to personal actions with testator. Benjamin v. Dimmick, 4 Eedf . 7 ; Contra, Marsh v. Brown, 18 Hun, 319. It was held, upon an accounting, that an executor cannot testify to, nor are his books admissible in support of, a claim against the estate for money advanced to decedent by him. Elmore V. Jacques, 2 Hun, 130 ; rev'd on other points, 60 N. Y. 610. See Jacques v. Elmore, 7 Hun, 675. § 40. Conversations that are incompetent. The pro- hibitions of the statute include testimony which en- tails any conversation with the deceased under certain prescribed conditions and circumstances. The examples here given are in addition to those already discussed under the section relating to Transactions with the de- ceased, and must be considered with those therein cited, if a complete digest of such decisions is desired. TTNDEE SECTIONS 829, 830 CODE CIYIIi PROCEDURE. 119 Communications are defined as including every method by which one person can obtain any impression or in- formation from another. These must have been per- sonal in their nature, but not necessarily private or con- fidential. Holcomb V. Holcomb, 95 N. Y. 316 ; rev'g 20 Hun, 156 ; Campbell v. McOuire, 53 Supr. 574. Thus in an action upon a claim against the estate of the deceased for the board of a nephew and niece, it was held that the plaintiff could not testify as to whether he had a conversation with the deceased as to their coming to the house. Heyne v. Doerfler, 124 N. Y. 505 ; rev'g 32 St. Eep. 960. Neither can a defend ant give testimony where he could otherwise be prohibited, merely from the fact that the plaintiff, the executor of deceased, was present at the time. Howell v. Taylor, 11 Hun, 214 ; Cornell v. Cor- nell, 12 Id. 312. Thus where defendant in a partition suit claimed title under an arrangement with his deceased father, he was held incompetent to testify to the conversation between his father and mother, in which he participated. Smith V. TJlman, 26 Hun, 386. A principal devisee cannot testify to any conversation with the testator during the last weeks of his life, attend- ing the attestation and publication of his will. Matter ofEysamen, 113 N. Y. 22 ; 22 St. Eep. 136. An administrator, who is also the plaintiff, cannot tes- tify to conversations had with the defendant's testator before he was appointed an administrator. Poucher v. Scott, 33 Hun, 223 ; aff'd 98 N. Y. 422. In an action brought by the cestuis que trust against the decedent's administrators and trustees to recover the trust fund, the trustee cannot testify as to what occurred 120 THE COMPETENCY AND EIGHTS OP "WITNESSES. between him and the deceased donor, against the admin- istrators. Wilkins v. English, 24 Hun, 32. A witness whose dower interest is at stake, and who took part in a conversation with the deceased, cannot testify to the same. Eckert v. Eckert, 13 App. Div. 490. Also, one who is the wife of the defendant, and also a party to the action, to determine the validity of a will, under which she could become entitled to her dower, is incompetent as to conversations with deceased. Johnson V. Cochrane, 91 Hun, 165 ; 36 Supp. 283 ; 71 St. Rep. 214. In an action brought by certain heirs of deceased, to set aside, on the ground of fraud and incompetency, a deed executed by deceased to one of the defendants, in which certain other of the heirs were made parties de- fendant, one of such heirs may testify, in behalf of the alleged fraudulent grantee, to statements made by de- ceased. Baxter v. Baxter, 13 App. Div. 65. Also, in an action brought by an administrator, it was held that the defendant could not testify to a conversa- tion with the alleged intestate tending to prove he was alive. Pashan v. Moran, 4 Hun, Tl7 ; aflf'd 71 N. Y. 596. Also, in an action to foreclose a mortgage made by defendant and wife, where the latter is made a party, she cannot testify to the conversation between the de- ceased and herself relative to the making of the loan, even though she has defaulted in answering. Farns- worth V. Ebbs, 2 Hun, 438. This construction of the law, however, except in these cases specified in the sec- tion, does not seem to be the rule at present. § 41. Conversations that are competent. The prohi- bitions of this section do not extend to the exclusion of testimony which tends to show that the witness has tes- tified falsely. ■UNDER SECTIONS 829, 830 CODE CIVIL PEOCEDUEE. 121 Thus, the defendant may testify that a conversation did not take place in the room where the witness stated it did, but in another. Pinney v. Orth, 88 N. Y. 447 ; Car- ney V. Wadhams, 9 Civ. Pro. 204. Also, in an action for admeasurement of dower, a wit- ness for the plaintiff had testified that in a conversation with decedent he had stated that he was married. He was asked if he did state in another conversation that he had not been married when his sister was present. Upon his denying this, his sister was held to be a competent witness to give that conversation. Badger v. Badger, 88 N. Y. 546. It was held, in an action against an executor in his in- dividual capacity, although growing out of matters con- nected with the estate in which he was interested, that this section did not apply. Hall v. Richardson, 22 Hun, 444 ; aff'd 89 N. Y. 636. Also, in an action to foreclose a mortgage, a second mortgagee was permitted to testify to conversations between himself and a deceased mort- gagor. Clark V. McNeal, 114 N. Y. 287. This section does not disqualify an executor from giving testimony as to personal transactions or conver- sations with the deceased in favor of the personal repre- sentative of deceased. McLaughlin v. Webster, 141 N. Y. 76 ; 56 St. Eep. 541. Also, testimony given on a special proceeding in behalf of administrators who are parties is not incompetent, and this though the witness was, as administrator, a party to the proceedings. Mat- ter of Bahcoch, 12 St. Eep. 841 ; 46 Hun, 682. Also, an executor who is not a legatee, nor interested, may prove the execution of the will. Children's Aid Soc. v. Lever- idge, 70 N. Y. 387 ; Wheepsley v. Lodar, 1 Dem. 368 ; Beeve v. Crosby, 3 Eedf . 74. 122 THE COMPETENCY AND EIGHTS OP "WITNESSES. In an action brought by a trustee against his co-trus- tee, to have lands standing in the name of the deceased declared part of the trust estate, the surviving husband of a deceased sister of deceased trustee, whose children are interested in the estate, is a competent witness to con- versations had with deceased. Conklin v. Snider, 104 N. Y. 641. In an action of interpleader, where the issue was whether a mortgage assigned to the deceased, the trus- tees of whose will were the defendants, was assigned absolutely, or for the benefit of the wife of the mort- gagee ; a witness for the plaintiff, who had acted as the counsel for the mortgagee in the execution and assign- ment of the mortgage, was held competent to testify that the deceased told him that the mortgagee wanted him to take the assignment and hold it for his wife. Brennan v. Hale, 39 St. Rep. 130 ; 20 Civ. Pro. 434 ; 14 Supp. 864 ; 11 Id. 6 ; 42 St. Eep. 919 ; aff'd 131 N. Y. 160. Neither does a lien for costs render an attorney incom- petent under this section. Sherman v. Scott, 27 Hun, 331 ; 2 Civ. Pro. 366. An attorney is also competent, although he has issued execution and superintended the levy thereunder, in an action brought by the assignee of the mortgagee, who held a chattel mortgage on the prop- erty levied on, against the client of the attorney. Payne V. Kerr, 21 Supp. 881. A party may testify to conversations with the deceased which are against her own interests. Davis v. Gal- lagher, 56 Hun, 593 ; 29 St. Eep. 882 ; 9 Supp. 11. § 42. Conversations between deceased and third par- ties. There exists a great difference in the application of this section to conversations between the deceased and third persons, in the presence of an interested party, as UNDER SECTIONS 829, 830 CODE CIVIL PEOCEDUEE. 123 to whether the evidence is offered in probate or other actions. The whole trend of the later authorities seems to show conclusively that all such testimony, if it relate to ma- terial facts, are excluded, in all probate proceedings and all other cases where a will, other instrument or act is contested on the ground of undue influence, fraud, re- straint or mental incapacity. Ditmars v. Sackett, 92 Hun, 381 ; 36 Supp. 690 ; Tl St. Eep. TlO. This rule, however, also depends for its enforcement or abatement upon several facts. If the person present, or overhearing the conversation relating to which he is about to testify, comes within the definition of an interested party in the result of the action, the rule applies, if the conversation or transac- tion relates to matters between the deceased and the wit- ness. Brague v. Lord, 67 N. Y. 495 ; rev'g 41 Supr. 193. Formerly, the rule seems only to have been in- voked if the witness in any way participated in the trans- action or took part in the conversation. Smith v. TJl- man, 26 Hun, 386 ; Ross v. Harden, 42 Supr. 427 ; Moyer v. Moyer, 21 Hun, 67. Thus, in an action brought to recover the proceeds of cer- tain bonds alleged to have been placed by the plaintiff in the hands of the defendant's testator, the plaintiff testi- fied that part of her bonds had been stolen prior to the alleged delivery of the remainder to the deceased, that he came to her rooms at the time of the discovery of the theft, and returned with a detective. It was held error to have allowed her to testify that on the second visit the deceased had said that the theft was not the work of a professional thief or he would have taken all of them, whereas he had left a balance of $12,000 ; at the same 124 THE COMPETENCY AND EIGHTS OE WITNESSES. time taking the same out of his pocket and exhibiting them with the remark that they would not get any more, be- cause he was going to put them in the bank for plaintiff. Plaintiff also testified that she had spoken more than once during the conversation. Price v. Price, 33 Hun, 69. It has, however, been held that a witness might tes- tify to such facts, even if he participated in the conversa- tion, if what is to be proved is limited to what is neither a personal transaction nor communication between wit- ness and deceased. Patterson v. Copeland, 52 How. Pr. 460 ; Benedict v. Phelps, 2 Week. Dig. 150 ; Cary v. White, 59 N. Y. 336. But it has been also held that these decisions do not apply to a case where the third party present was agent for witness. Head v. Feeter, 10 Hun, 548. A witness, who was the plaintiff's wife, was held in- competent as a witness, in an action brought against the administrator to recover damages for fraud on the part of defendant's intestate in making a sale, to testify to a conversation between deceased and her husband in her presence in which she participated, as she was an inter- ested party. Eighmie v. Eighmie, 68 Hun, 573. Neither can a witness relieve himself of this disability, by leav- ing out his share of the conversation and only stating what occurred between the others. Boss v. Harden, 42 Supr. 427. In an action against a constable to recover attached property on the ground that it belonged to the plaintiff's intestate, while his declarations to third persons as to ownership were held admissible, the evidence of the plaintiff in the attachment proceedings as to a conversa- tion had with another was not competent. Wooster v. Booth, 2 Hun, 426. UNDEK SECTIONS 829, 830 CODE CIVIL PEOCEDTJKE. 125 The rule is now much more restricted than formerly, our courts now holding that conversations made in the presence of a witness are made to him, and the present policy is to exclude any transaction which took place in his presence, or any conversation which took place in his hearing, if he is in any way a party thereto. Holcomh V. Holcomh, 95 N. Y. 316 ; Lane v. Lane, Id. 494 ; In re Smith, Id. 516 ; Matter of Eysaman, 113 Id. 62 ; Matter of Will of Dunham, 121 Id. 575. Thus, a beneficiary under a will is incompetent to tes- tify to any conversation or transaction which occurred in his presence at the time of the execution and publica- tion of the will. It is held that what took place at that time is a transaction between the testator and witness, although the latter in no wise participated in the conver- sation, and it was wholly between the testator and the subscribing witness. In re Will of Bernsee, 141 N. Y. 389. But in an action for partition, where the defendant set up an alleged will by which all the lands were devised to him, it was held that the plaintiff's testimony as to a conversation between the defendant and her deceased father was not an error calling for a reversal, since, as deceased had been shown incapable of making a will, the testimony was immaterial. Petrie v. Petrie, 38 St. Eep. 496 ; aff'd 126 N. Y. 683. In an action brought for legal services, rendered to the defendant's testator, it was held that the plaintiff could not testify that the deceased had said to his brother in his presence, " We cannot tell what we have to pay until we know what our lawyer charges us," turning his head toward the plaintiff. Brague v. Lord, 67 N. Y. 496 ; 2 Abb. N. C. 1 ; rev'g 41 Supr. 193. 126 THE COMPETENCY AND EIGHTS OF WITNESSES. Also, in an action for specific performance of a parol agreement of deceased to convey land to the plaintiff, the latter's wife, who was interested in the event of the action, was held incompetent as a witness to a conversa- tion between her husband and the deceased, although she had in no manner participated in it. Erwin v. Er- win, 26 St. Rep. T59. Also, where it was attempted to prove a gift causa mortis the plaintiff was not allowed to testify to a conversation held in her presence between the deceased and a Catholic priest relative to the gift claimed by her. Devlin v. Greenwich Savings Bank, 125 N. Y. T56. Where the probate of a codicil of a will was resisted on the ground of undue influence, restraint and mental incapacity, it was held that a residuary legatee could not testify to a conversation and transaction between the testator with witness and others in his presence. Matter of Will of Dunham, 121 N. Y. 5T5. Nor can a party testify to statements made by the deceased in his presence, to another who was engaged in drawing up the papers relating to the business transaction at issue. Kraushaar v. Meyer, Y2 N. Y. 602. Neither will the fact that at the time of the conversa- tion in question the witness was not an interested party have any bearing upon such incompetency. The ques- tion of disqualification depends entirely upon the facts as they exist at the time when the testimony of the witness is to be used, and if such disqualification exists then, it extends to, and renders incompetent, the testi- mony as to transactions or conversations which occurred before the witness became interested. Eighmie v. Tay- lor, 68 Hun, 573. But see Gross v. Wellwood, 9 St. Eep. 587. UNDER SECTIONS 829, 830 CODE CIVIL PEOCBDUEE. 127 § 43. The rule in other cases. While in the cases already discussed, and in proceedings based upon the grounds specified in the last section, the rule is strictly enforced, yet it does not appear that the same limitations prevail in actions of a different nature, or those founded upon other causes. In the latter class of actions, the tendency of our courts is to a relaxation of the rule to some extent, and the law at present is that, in such pro- ceedings, an interested witness may testify to transac- tions or conversations which took place in his presence, between the deceased and third parties, provided he was not referred to by the parties thereto and did not partici- pate therein by word, sign or act. O'Brien v. Weiler, 140 N. Y. 281 ; Simmons v. Havens, 101 N. T. 433 ; Ca7'y V. White, 69 N. Y. 336 ; Kaushaar v. Meyer, T2 N". Y. 602 ; Holcomh v. Holcomb, 95 N. Y. 316, 325 ; Lane v. Lane, 95 N. Y. 494, 502 ; Hildehrant v. Craw- ford, 65 N. Y. lOY ; Eighmie v. Taylor, 68 Hun, 5Yl ; Matter of Hartman, 13 Misc. 486. Thus it has been held that a person may testify to such matters against an heir at law which would tend to show a transaction between witness and deceased. Sanford V. Sanford, 61 Barb. 293 ; 5 Lans. 486. Also held, that a party might testify to a conversation of this nature heard by him between the principal and agent, who were both dead, as against a successor in interest of the prin- cipal. Hildehrant v. Crawford, 65 N. Y. 107. In an action of ejectment, the plaintiff was allowed to testify to a conversation between her deceased mother and the defendant. Simmons v. Havens, 101 N. Y. 428. Also held, under the old Code, that a witness might so testify to a transaction which affected the estate of the decedent, where heirs at law were parties plaintiff. Loh- 128 THE COMPETENCY AND EIGHTS OF WITNESSES. dell V. Lobdell, 36 N. Y. 326. Also, that one sued by an administrator could testify to conversations overheard by him between deceased and third parties. Simmons V. Sisson, 26 N. Y. 264. § 44. Testimony in own behalf. By the word "testi- mony " in this section is meant sworn statements of the deceased made on some prior occasion. Matter of Cal- lister, 153 N. Y. 294. A promissory note executed by decedent was read in evidence by his representatives. Held, that the living party thereto could not testify as to what was said and done at its execution, as such a document may be " evidence" but is not testimony. Id. The prohibitions of this section do not apply where the adverse party is the assignee of a devisee of the deceased person, and in an action brought by such an assignee, the defendant is competent in his own behalf to testify to transactions or conversations with decedent. Theall V. Steitz, 6 Daly, 482. But in an action against the heirs of a deceased person for specific performance of contract for sale of lands made with such deceased, wherein admissions of the plaintiff have been proven, showing that he agreed to pay thirty dollars an acre therefor, he cannot be asked, "Did j^ou agree to pay thirty dollars an acre for the land ? " Chadwick v. Fonner, 69 N. Y. 404 ; rev'g 6 Hun, 543. But held in an action brought by an administrator in behalf of a creditor, to set aside a deed made by the in- testate, on the ground of fraud, that one of the parties could testify in her own behalf both as to the statements made by the grantor at the time of the transaction, and also to his physical condition. Matter of Davis, 60 Hun, 198. trNDBR SECTIONS 829, 830 CODE CIVIL PEOCEDUKB. 129 Also, upon the settlement of an account of a deceased executor, where the accounting party testified to an agreement between the former and the beneficiaries, it was held that one of the objectors could testify in his own behalf in reference thereto. Shepard v. Patterson, 3 Dem. 183. Also held, that the testimony of a plaintiff upon a for- mer trial could be used, although since that time one of the defendants had become insane, and the action is con- tinued against the committee. Morehouse v. Morehouse, 41 Hun, 146. Also held to the same effect where both parties had been examined before trial, and the defendant had since died. Bice v. Motley, 24 Hun, 143 ; McDonald y. Wood- bury, 30 Hun, 35. Where a farm was worked by the defendant under an oral agreement with the deceased, and the devisee after his death agreed to allow him to continue working the farm under the same terms as his original letting, it was held that the defendant could testify to the agreement thereto between himself and the deceased. lYtus v. O'Connor, 18 Hun, 373 ; 57 Id. 391. But where the executor, the plaintiff, was examined as a witness as to the language used by the defendant in asserting his claim for unpaid rent, it was held that this did not authorize an examination of the defendant in his own behalf to show the agreement with deceased in ref- erence to such hiring of the property. Hammond v. Schultze, 45 Supr. 611. Also held, that the provisions of this section apply where the plaintiffs call the defendant, through whom they claim title, as a witness in their behalf against his co-defendant, the administrator. Id. 130 THE COMPETENCY AND EIGHTS OF WITNESSES. § 45. In Ibehalf of co-plaintiff or co-defendant. The prohibitions of the statute which apply to a witness in his own behalf, apply with equal force to cases where the parties are called as witnesses in behalf of their co- plaintiffs or co-defendants, or where they are jointly or severally liable. Alexander v. Dutcher, TO N. Y. 385 ; Bennet v. Austin, 5 Hun, 536. Thus, in an action brought by the personal representa- tives of deceased upon a promissory note against the maker and indorser, neither of the defendants can tes- tify in favor of the other as to personal transactions with the deceased although they put in separate answers. Id. And that notwithstanding the indorsers executed a release to the maker. Alexander v. Alexander, 7 Hun, 409 ; aff'd TO N. Y. 385. Genet v. Lawyer, 61 Barb. 211. Also, upon the trial of an action brought by the admin- istrators of a deceased payee of a promissory note against the makers thereof, when one claimed to be liable as a surety only, and the other put in no defense, the latter cannot testify in behalf of his co-defendant as to such matters. Hill v. Hotchkin, 23 Hun, 414 ; Church v. Howard, T9 N. Y. 416. Also held that the same prohi- bition applies to a mortgagee in behalf of a defendant mortgagor as to conversations with plaintiff's testator, the mortgagor. Hadsall v. Scott, 26 Hun, 61T. But in an action by the testator's son to enforce an agreement made by the testator to convey certain real estate to him, it was held that the testator's widow, to whom decedent had given a life estate in the lands in question, but who had allowed a default to be taken against her as a defendant in the action, could testify for the plaintiff as to the agreement. Brown v. Brown, 29 Hun, 498. UNDER SECTIONS 829, 830 CODE CIVIL PE.OCEDUEB. 131 § 46. Administration. The restrictions upon testimony as to transactions or conversations with deceased intes- tates in actigns or proceedings where administrators or ex- ecutors are parties are similar to those already referred to. Thus, upon application for letters of administration, it was held that a widow was incompetent to testify to her marriage with the deceased. Angevine v. Angevine, 48 Barb. 417. Also, in an action by an administrator to recover property of the deceased which was alleged to have been converted, evidence of a person through whom defendant claimed title, tending to establish a parol gift from deceased, was held incompetent. White v. White, 16 Week. Dig. 45. But in an action by an administrator to set aside a deed from the decedent to the defendants as in fraud of decedent's creditors, it was held that the defendants could testify as to conversations with the deceased relative to the transaction. Miller v. Davis, 14 Supp. T25 ; 37 St. Eep. 854 ; 20 Civ. Pro. 414. Also, in a similar suit brought against the administrator, it was held that the latter was not incompetent to testify in behalf of such grantee to declarations made by decedent concerning her indebtedness to the grantee. Swan v. Morgan, 88 Hun, 378 ; 34 Supp. 829 ; 66 St. Rep. 768. But also held, that where an action has been brought by an administrator, the defendant cannot testify to conversations with the alleged intestate held prior to the issuing of such letters of administration, tending to show that such person was still alive. Parhan v. Moran, 71 N. Y. 596 ; aff'g 4 Hun, 717. Where a judgment was obtained by default against a defendant since deceased, and it was shown that the same v^as entered by fraud and collusion, and a motion 132 THE COMPETENCY AND EIGHTS OF WITNESSES. to open the default and allow the administrator to defend was granted, it was held that in such a case the testi- naony of the plaintiff as to the loaning of money to the defendant was inadmissible, when there was no testimony on the part of the administrator as to any communication concjerning the making or delivery of the note sued upon or the recovery of the judgment. Hartigan v. Nagle, 11 Misc. 449 ; 32 Supp. 220 ; 65 St. Eep. 419. Where the petitioner for letters of administration claimed to be the child and only next of kin of the deceased, the sister of the deceased was held incompetent to testify in opposition thereto as to declarations of the deceased that the former was not his child. Estate of Molter, 22 Week. Dig. 507. Upon an accounting by an administratrix, she pre- sented a claim for services rendered by her against the estate of the decedent. Upon the trial, a note which she held against him was produced by her at the request of the next of kin, who offered it in evidence. It was held that the administratrix was incompetent to testify as to the consideration thereof or the circumstances under which it was given, which involved a transaction with the deceased, in order to rebut the presumption created by the note against her individual claim. The ground of this decision being that as the iiote was in no sense the testimony of the decedent, the next of kin, by calling for its production, could not be said to have given in evi- dence testimony of the deceased. Matter of CalUster, 88 Hun, 87 ; aff' d 153 N. Y. 294. § 47. Deriving title or interest. The words of this section "deriving title or interest" should be construed as if they read, " claiming to "derive title or interest." Estate of Voorhis, 1 How. Pr. N. S. 261. UNDBE SECTIONS 829, 830 CODE CIVIL PEOCEDUKE. 133 This section does not exclude evidence of any personal transactions between a witness who is a party to the action and a person since deceased from whom the witness claims title, but only between the witness and the person from whom the other party to the action, against whom the testimony is given, claims title. Lyon v. Whittaker, T7 Hun, 107 ; 28 Supp. 296 ; 59 St. Eep. 844. Contestants of probate of wills come within this sec- tion. Matter- of Will of Smith, 95 N. Y. 516; Cadmus V. Oakley, 3 Dem. 324. A party is incompetent to testify to a conversation between himself and a deceased grantor, under whose conveyance the opposite party claims, although the latter was not the immediate grantee of the deceased, but derived his title through mesne conveyances. Pope v. Allen, 24 Hun, 604 ; aff'd 90 N. Y. 298. The same prohibition applies to the assignee of a mort- gage, and the assignor of an equity of redemption. Smith V. Cross, 90 N. Y. 549 ; Footer. Beecher, 78 Id. 155. Declarations or admissions of a deceased grantor of lands contained in a letter to the state comptroller, stating he had conveyed the same to other parties, are not competent against those who claim under him, when the records show no such conveyances. Marsh v. Ne-ha-sa-ne Park Assoc, 18 Misc. 314 ; 82 Supp. 996 ; 76 St. Eep. 996. But a wife, the defendant in an action brought by cred- itors to set aside certain conveyances made to her by the decedent, was allowed to testify to personal transactions between herself and husband on the ground that the plaintiffs did not claim under the husband. Gillies v. Kreuder, 33 Hun, 314 ; aff'd 102 JST. Y. 666. In an action of trespass upon land against one who claims to have entered as the agent of the owners, the 134 THE COMPETENCY AND EIGHTS OP WITNESSES. plaintiff's grantors are not competent witnesses to con- versations between them and a deceased person tlirough whom the defendant's principal claims. Wheeloch v. Cuyler, 4 Hun, 414 ; Bockes v. Lansing, 13 Id. 38 ; aff'd 74 N. T. 437. Also, where the former owner of chattels, by transferring the same, became the agent of the transferee, and had bailed them with the defendant without declaring his agency, it was held, in an action by his principal against the defendants, that he could not testify to a demand made on one of the defendants since deceased and a refusal to deliver. Conway v. MouUon, 6 Hun, 650. Also, in an action to establish the plaintiff's title to real estate, by having a deed to the defendant's ancestor declared a mortgage, with a provision entitling plaintiff to a conveyance of the title, the grantor, being the party through whom the plaintiff claimed title, was held to be incompetent to prove the signature of the grantee thereto. Garvey v. Owens, 37 Hun, 498. But evidence to prove the signature of an intestate to an instrument given by him to the mother of the witness is competent. Estate of Waldron, 16 Week. Dig. 28. Also held, that a party may give testimony in her own be- half as to having possession of a deed, and that the signa- ture is in the handwriting of her grantor, without stating from whom she received it. Simmons v. Havens, 101 ]Sr. Y. 427 ; aff'g 29 Hun, 119. Also, a grantee may testify to occupation under a deed, the renting and col- lecting the rents of the same, as against a purchaser from the heirs of a deceased grantor. Strough v. Wilder, 49 Hun, 405 ; 22 St. Eep. 480 ; 3 Supp. 567. But a grantor under such circumstances cannot testify to the consideration of the deed. Ballou v. Ballou, 78 TJNDER SECTIONS 829, 830 CODE CIVIL PEOCEDtTBE. 135 N. Y. 320. Held, however, that a party claiming imder a written transfer of property from the deceased may testify, as against the representatives, that he paid tlio doctor's bills and funeral expenses of the deceased, as part of the consideration. Savercool v. Wilsey, 5 App. Div. 562 ; 39 Supp. 413. In an action to recover a specific fund, where the de- fendant claimed that the money belonged to, and was placed by him in the hands of, the deceased, it was held that he could not testify to any transactions on the sub- ject, as the plaintiff acqiiired whatever interest she had from the decedent. Mason v. Prendergast, 120 N. Y. 536. Also, in an action by an administrator to recover property of the deceased, which was alleged to have been converted, evidence of a person through whom the de- fendant claimed title, tending to show a parol gift to him from decedent, was held inadmissible. White v. White, 16 Week. Dig. 45. Where a widow claimed title under a deed alleged to have been executed by a deceased ancestor and wife of the adverse party, she was allowed to testify in her own behalf to conversations with the deceased wife, on the ground that the adverse party, the heirs, did not claim through the decedent. Matte?- of N. Y. C, etc., B. Co., 90 N. Y. 342. In an action to enforce a lien on a bond held by a bank of which the plaintiffs were the receivers, the debtor's wife claimed the bond ; but there was no evidence that she derived any title or interest therein from the debtor, and it was held that the debtor could testify as to a demand on behalf of his wife made by him upon the plaintiff's deceased predecessor for the bond. Olcott v. Kohlsaat, 27 St. Eep. 900 ; 8 Supp. 116. Also, a widow 136 THE COMPETENCY AND EIGHTS OP WITNESSES. plaintiff, in an action to set aside a deed executed by herself and deceased husband, was held competent to testify to the transaction, on the ground that the de- fendant's title to her dower right was derived through her directly and not through the decedent. Witthaus V. Shaack, M Hun, 328. It has also been held that a husband does not derive his right to recover against the estate, of a deceased per- son for services of his wife, through or under her, but by virtue of his common-law right, and his wife is not disqualified from testifying in an action to recover for services rendered to the deceased, as to the circumstances of her engagement. Porter v. Dunn, 131 N. Y. 314 ; rev'g 61 Hun, 310 ; Hopkins v. Cla7-k, 90 Hun, 4 ; 35 Supp. 360 ; 69 St. Eep. 849. It has been held that , the prohibitions of the statute are not to be taken as limited to an examination per- taining to parts of the action, but extend to the entire action. Lyon v. Snyder, 61 Barb. 172. An executor, administrator or others cannot avail themselves of the advantages of the statute where they are parties or interested, not in their representative ca- pacities, but as individuals. Matter of N. Y. C, etc., R. Co., 90 N. Y. 343 ; Barey v. Eq. L. Ins. Soc, 59 N. Y. 587 ; Stephens v. Cornell, 32 Hun, 414 ; Witthaus v. Schaak, 24 Id. 328 ; Titus v. O'Connor, 18 Id. 373 ; Hall V. Richardson, 22 Id. 444. § 48. Declarations of deceased. As a general rule the declarations of the deceased cannot be used in evidence when, if alive, he would have been a party to the action or proceeding, or interested in the result thereof, or come within the description of persons mentioned in the statute. TJNDER SECTIOSrS 829, 830 CODE CIVIL PEOCEDUEB. 137 Thus, in an action brought by the grantee of mort- gaged premises to have the mortgage cancelled, one through whom the plaintiff derived title was held in- competent to testify as to declarations of the deceased mortgagor. Foot v. Beecher, 78 N. Y. 156 ; rev'g 12 Hun, 374. Also, in an action against an administrator for board and services rendered to intestate, the declara- tions of the latter were held inadmissible. Underhill v. Nichols, 8 Wk. Dig. 276. Also, in an action by an ad- ministrator to recover property from those who claimed it by gift from the deceased intestate, his declarations, inconsistent with the gift, were not allowed. Graves v. King, 15 Hun, 367. Neither can the title to a cause of action by gift from a person since deceased be established by mere proof of the declarations of the deceased im- parting a gift, nor can the delivery be inferred from the testimony of the donee. Johnson v. Spies, 5 Hun, 468. Declarations of a decedent as to the amount or value of his property are not competent to charge the ex- ecutors with the same. Ginochio v. Porcella, 3 Bradf. 277. Neither are the declarations or admissions of a deceased grantor of lands, contained in a letter to the state comptroller, and stating that he had conveyed the same to others, when no such conveyances appear on record, as against those who claim under him. Marsh V. Ne-ha-sa-ne Park Ass., 18 Misc. 314 ; 82 Supp. 996 ; 76 St. Eep. 996. Where the petitioner for letters of administration claimed to be the child and only next of kin of deceased, the sister of the deceased was held incompetent to testify in opposition thereto as to declarations of deceased that the petitioner was not his child. Estate of Molter, 22 Wk. Dig. 507. 138 THE COMPETENCY AND EIGHTS OF WITNESSES. But a deposition taken during the lifetime of the de- ceased, on interrogation and cross-examination, is not inadmissible. Roland v. Pinckney, 8 Misc. 458. Also, in an action brought by an administrator to set aside a deed from decedent to defendants, as in fraud of creditors of deceased, it was held that the defendants could testify as to declarations of deceased relative to such transaction. Miller v. Davis, 14 Supp. Y25 ; 37 St. Eep. 854 ; 20 Civ. Pro. 414. Also, in a similar suit brought against the admin- istrator, it was held that the latter was competent, in behalf of the grantee, to testify to declarations of the deceased concerning her indebtedness to the grantee. Swan V. Morgan, 88 Hun, 3T8 ; 34 Supp. 829 ; 66 St. Eep. Y68. But declarations of an intestate, binding or impairing his estate, may be given in evidence against his personal representatives in all cases where it would have been competent against himself were he living and a party. Matter of Smith, 18 Misc. 139 ; 41 Supp. 1093. § 49. Negative and affirmative. Everything in any way relating to the conversation or transaction which is material to the issue is protected by this section. Thus, generally speaking, this prohibition includes both the affirmative and negative. Haughey v. Wright, 12 Hun, 1Y9 ; Barrett v. Carter, 3 Lans. 68 ; Stanley v. WJiitney, 4Y Barb. 586 ; Clarke v. Smith, 46 Barb. 30. Any testimony which tends to the inference that no personal transaction took place between the witness and the deceased is within this section. Hill v. liemans, 17 Hun, 470. An interested party cannot testify that an alleged con- versation or an interview concerning the agreement or transaction at issue did not take place, any more than TJNDEE SECTIONS 829, 830 CODE CIVIL PROCEDUKE. 139 he can testify concerning the transaction or conversation. Walsh V. McArdle, IS Hun, 411. Thus a party cannot testify he did not see, or did not hear, a personal transaction with a certain deceased per- son. Mulqueen v. Duffy, 6 Hun, 299. Also, in an action against the heirs of a deceased per- son for specific performance of a contract for the sale of land made with the deceased, wherein admissions of the plaintiff had been proved, showing that he agreed to pay thirty dollars an acre therefor, it was held that he could not, in his own behalf, answer the question, " Did you ever agree to pay thirty dollars an acre for the land ? " Chadwick v. Former, 69 N. Y. 404 ; rev'g 6 Hun, 543. Thus it was held that a witness could not testify that certain conversations did not take place between himself and the deceased. Clarke v. Smith, 46 Barb. 30. Or that no such transaction took place. D?jer v. Dyer, 48 Barb. 190. Or that the note was without consideration. Benedict v. Driggs, 34 Hun, 94. Thus, in an action by an administrator upon a bond, the defendant was held to be precluded from testifying as to the amount of the consideration he received. Stan- ley y. MT^tYne?/, 47Barb. 586. Also, that the plaintiff suing upon a note made by decedent could not testify that it had not been paid. JZoweK v. Fau ^'cfcZen, 6 Hun, 115 ; aff'd TO N. T. 595. Neither can the claimant upon a reference of a disputed claim testify that the note purporting to have been made by the decedent had never been paid, nor the interest. Myer v. Hunt, 38 St. Eep. Y39 ; 14 Supp. 4T1. Nor can the vendor of goods testify, in an action to recover their price, that he has never been paid for them. Braymen v. Stephens, T9 Hun, 28. Also, in an action against an executor, where a demand for services rendered 140 THE COMPETEKCY AND EIGHTS OF WITNESSES. to deceased was set up as a counterclaim, the plaintiffs were not allowed to answer the question, "Was it true it all had been paid ? " Williams v. Davis, Y Civ. Pro. 282. In an action for money had and received by the de- fendant's intestate, where the defense was that the money had been placed in the hands of the deceased for the pur- pose of defrauding the plaintiff's creditors, it was held that he could not testify in his own behalf that he had not given the deceased the money for that purpose. Tooley V. Bacon, 8 Hun, T6 ; aff'd TO N. Y. 34. See Hard v. Ashley, 111 N. Y. 606 ; rev'g 53 Hun, 112. In an action to avoid a deed as to part of certain prem- ises, it was held that the defendant could not be asked if he had stated that if the deed included the fifteen acres he would correct the mistake made by the deceased grantor. Mills v. Mills, 8 Supp. 811. Where the mere fact that a party has had a conversa- tion with a deceased person, to whom the opposite party stands in the relation specified in the section, is a material question, it is not competent for such party to testify that he had the conversation. Maverick v. Marvel, 90 N. Y. 656. In an action to foreclose an equitable lien for unpaid purchase money of land sold by the plaintiff's father since deceased, the contract for which was assigned to the defendant by his deceased father, and the defense was payment, and the defendant testified to admissions made by the plaintiff that he had received payment by allowance of the amount on a sale of a contract by the defendant's father to plaintiff; it was held that this testimony did not permit the plaintiff to deny he had the transaction in question. Brown v. Burgett, 15 Supp. 942 ; 40 St. Kep. 564. UKDEK SECTIONS 829, 830 CODE CIVIL PEOCBDUEE. 141 Exceptions. The rule above stated is, however, only a general rule, and is qualified by the further ruling of our courts, to the effect that when a party has given material testimony as to extraneous facts, which may or may not involve the affirmative or negative of the ex- istence of personal transactions with the deceased, the adverse party may also testify to extraneous facts which tend to negative or affirm the existence of such transac- tions or conversations. Lewis v. Merritt, 98 JST. Y. 206 ; Finney v. Orth, 88 N. Y. 447 ; Carney v. Wadhams, 9 Civ. Pro. 204. Thus, in an action brought by an executor for an alleged conversion of certain notes, and the plaintiff testified that such notes were kept by the deceased prior to her death in a trunk in her room, where he saw them the morning before she died, but could not find them the day after she died, and he also showed that the defendant was in the room of the deceased during her last hours. The notes were afterwards found in his possession, and he claimed them as a gift from the deceased. It was held that the defendant could answer the question, "Did you take these notes from any trunk or person ? " Lewis v. Merritt, 98 N. Y. 206. Also, when a hostile witness had testified that, after the death of the alleged donor, the donee stated she never had the notes in question in her possession, and had never received any interest upon them, the donee was held competent to deny such testimony, and also to state that at the time such notes were in her trunk in her bed- room. Bix V. Hunt, 16 App. Div. 541. Also, when a witness had testified to certain interviews between the deceased and the defendant in his presence, it was held that the defendant could testify that the 142 THE COMPETENCY AND EIGHTS OP WITNESSES. witness was not present, and that the interviews in ques- tion did not take place where he had stated, but in an- otlier room. Pinney v. Ortli, 88 N. Y. 447. It has also been held that a party may testify to an intrinsic fact which tends to negative a personal transac- tion with the deceased, where no statement of the sub- ject-matter is embraced in the question. McKenna v. Bolger, 49 Hun, 259 ; 11 St. Eep. 102. And it matters not whether the subject of the testimony ruled on is to prove a negative or affirmative. Clark v. Smith, 46 Barb. 30 ; Dyer v. Dyer, 4S Id. 190 ; Stanley v. Whitney, 4Y Id. 586. Thus, where a husband made a claim against the estate of his wife, it was held competent for him to testify to extraneous facts showing that he acted as her agent. That he might also show the payment of interest, taxes and other expenses relating to his wife's property, these being independent facts which his wife did not personally participate in. Zinke v. Ziiike, 90 Hun, 127 ; 35 Supp. 645. This rule applies, not only where a party is called in his own behalf, but also when called in behalf of another party. Fox v. Black, 61 Barb. 216. § 50. Indirect evidence. The rule laid down prohibit- ing the testimony as to transactions or conversations with decedents by persons disqualified under this section, can- not be evaded by the adoption of indirect methods to ob- tain the evidence desired. Matter of Humfreville, 6 App. Div. 535 ; 39 Supp. 550. Thus, a witness cannot be asked if he was in the habit of borrowing money from the deceased. Alexander v. Dutcher, 7 Hun, 439 ; aff'd 70 N. Y. 385. Also held, that where executors were not competent to prove pay- UNDER SECTIONS 829, 830 CODE CIVIL PKOCEDURE. 143 ment of the claim at issue, to the deceased, they could not testify to the fact that the deceased had no other sources of income than such payments. Jaques v. El- more, T Hun, 615. Neither can the plaintiff testify as to who was the owner of the property in dispute, which was placed in the hands of defendant's intestate. Tooley v. Bacon, 8 Ilun, 176 ; aff'd 10 N. Y. 34. Nor, in an action against executors, upon a bond alleged by the defendants to have been altered after its execution, can the plaintiff testify that he saw the bond in their attorney's hands be fore its execution, and it then contained the clause in question. Pease v. Barnett, 30 Hun, 525. Where the defendant claimed that he had indorsed the note in suit as a mere surety for another, it was held he could not be asked the following questions, to substan- tiate his claim : "At the time you indorsed that note, or at the time you executed the bond and mortgage, did you receive anything for it ? " "Did you ever receive any money upon this note or mortgage or bond from anybody?" Auhurn Savings Bank v. Brinkerhoff, 4:4: Hun, 142. But he may be asked if he had ever seen the note. Redfield v. Stitt, 45 Hun, 592 ; 10 St. Eep. 366. In an action to recover a balance due upon a land con- tract, brought by the administrators of the vendor against the administrators of the vendee, the defendant was held incompetent to testify that the vendor made no claim after the death of the purchaser for anything due on the contract. Parks v. Andrews, 56 Hun, 391. Also, in an action by administrators to recover money paid after the death of the intestate to the latter's daughter on checks drawn by them, she was held incompetent to answer questions as to whether her father ever promised 144 THE COMPETENCY AND EIGHTS OF WITNESSES. to pay certain money to her. McMurray v. Innis, 38 St. Eep. 489. But it has been held that a widow, upon a reference of her claim against the estate of her husband, could be asked, " From the date of her marriage who provided the necessaries of the house, and who supported the family ? " Denise v. Denise, 110 N. Y. 562 ; aff'g 41 Hun, 9 ; 18 St. Eep. 873. In an action to recover bonds deposited by the plain- tiff, with the indorsements thereon alleged to have been in blank, with the deceased assignor of the defendant, which appeared on the trial with the name of the de- fendant's assignor written in the blank, it was held that the plaintiff could not testify that he never transferred the bonds and never saw them after the deposit. Hills V. Heermans, 17 Hun, 470. But also held that he might be asked, "At the time you left those bonds in the safe was the name of the assignor on either of the bonds, or anywhere on these in- struments at the time ? " Wadsworth v. Heermans, 85 N. Y. 639 ; aff'g Hill v. Heermans, 22 Hun, 456. It was also held incompetent for a party to testify that he made a certain indorsement on the note before the de- livery of the deed, that the last time he saw it before de- cedent's death was on a certain date, and that afterwards he found it in decedent's trunk. Van Vechten v. Van Vechten, 65 Hun, 215. Incidents of a transaction. This prohibition not only covers transactions and conversations, but is also ex- tended so as to include acts and incidents which may seem to be independent facts, but might establish indi- rectly the material fact sought to be established by show- ing what was done at the time of the interview between TJNDBE SECTIONS 829, 830 CODE CIVIL PKOCEDTJEE. 145 the witness and the deceased. Neither, under such cir- cumstances, can a witness testify to subsidiary facts, which originate in, or proceed from, such transactions. Clift V. Moses, 112 N. Y. 426 ; 21 St. Eep. Ill ; Denise T. Denise, 110 N. Y. 562 ; aff'g 41 Hun, 9. Thus it has been held that a party cannot testify to the fact that he carried an inkstand with him to the interview. Du Bois v. Baker, 40 Barb. 556 ; aff'd 30 N. Y. 355. Nor can a party testify that he saw the deceased sign a paper. Dunham v. Jayne, 16 Abb. Pr. N. S. 31Y. Nor can a witness be asked, in denial of that allegation, if he put any property in the hands of the deceased for the purpose of defrauding his creditors. Tooley v. Bacon, 8 Hun, 176 ; aff'd TO N. Y. 34. Nor that the articles in controversy were delivered at de- ceased's establishment. Hay v. Midler, 7 Misc. 670 ; 28 Supp. 57. "Where certain personal property was enclosed in a box and handed by the plaintiff to an intermediary to deliver it to defendant's testator, it was held that the plaintiff was not competent to testify to the specific articles in the box for the purpose of establishing delivery. Gregory V. Fichtner, 38 St. Rep. 192. In an action to recover securities belonging to plaintiff which she had delivered to the defendant's intestate as her agent, a box in which she kept securities of which the plaintiff then made a list, and from which she was then able to state the amount, it was held that she was incompetent to state what the securities were. Doolittle V. Stone, 28 St. Eep. 319 ; 8 Supp. 605 ; 5 Silv. Sup. Ct. 412. Nor is it competent to testify to the address on a package sent to a person since deceased. Stewart v. Pat- terson, 37 Hun, 113. Nor, where the defense was pay- 10 146 THE COMPETENCY AND EIGHTS OF WITNESSES. meiit, was the plaintiff allowed to testify that the receipt offered in evidence by the defendant has been changed since he gave it to defendant's intestate so as to make it a receipt in full instead of one on account. Bougliton V. Bogarclus, 35 Hun, 198. Independent facts. This rule does not, however, pre- clude a witness from giving testimony to facts other than transactions with the deceased personally, which, as against the heirs at law, may tend to prove the existence and binding force of the contract at issue. Card v. Card, 39 N. Y. 317. The rule seems to be now established that if the fact testified to is an independent one, no error is committed in its reception, although it may corroborate in some de- gree the evidence given involving a transaction between the witness and the deceased. Tomlinson v. Seifert, 2 St. Eep. 283. Thus, where a husband claimed against his wife's estate for money expended by him for her, he was held compe- tent to testify to extraneous facts showing that he acted as her agent. He was also permitted to show that he paid the interest, taxes and other expenses upon her buildings, these being independent facts in which his wife did not participate. ZinTce v. Zinke, 90 Hun, 127 ; 35 Supp. 645. Neither is collateral testimony relating to facts not dependent upon the evidence of the deceased party, but having a tendency to maintain the defense of the party from whom the evidence is proposed to be derived, in- cluded within this section. Gilbert v. Sanders, 10 St. Rep. 43. Thus, in an action to recover the value of bonds de- livered to the defendant's testator for safe keeping, the UNDER SECTIONS 829, 830 CODE CIVIL PEOCEDTJEB. 147 plaintiff was allowed to testify to the exact number of bonds then owned by her. Price v. Brown, 5 St. Rep. T. Upon the trial of an action, where the principal con- tention was the ownership of a certain mare, the plaintiff proved that the intestate before his death showed the witness a paper which appeared to be a bill of sale to the defendant from the former owner, and another paper which appeared to be a bill of sale from the defendant to the deceased. It was held that the defendant could be asked whether he ever signed such a bill of sale. Tun- son V. Salisbury, 15 App. Div. 215. It has also been held that a party might testify that she had the custody of a deed executed by the deceased, both before and after its acknowledgment, and down to the time of trial, where the delivery of the deed was the question at issue. Viall v. Leavens, 39 Hun, 291. Also, that an interested party could testify that he saw the deed at issue in the desk of the deceased. Blaesi v. Blaesi, 42 Hun, 159. It has also been held that a party might testify to the simple fact that a conversation was had with a deceased person, without giving any details of the conversation, it not being obnoxious to the statute, unless the mere fact that a conversation took place is the material fact to be proved. Hier v. Grant, 47 N. Y. 278. Also where an action was brought to set aside certain conveyances of the deceased grantor, it was held that the defendant might be asked how long one of the deeds had been in his possession. Spicer v. Spicer, 54 N. Y. Supr. 280. Also held, that a party might testify that on a certain occasion he drove his team to the house of the plaintiff's intestate. Crowley v. Davis, 4 Week. Dig. 466. Also, 148 THE COMPETENCY AND EIGHTS OP "WITNESSES. a son was allowed to testify that he saw the deceased on a certain day at a certain place, where it was claimed he made a payment at that time on the account at issue. Matter of Brown, 38 St. Eep. 130. § 51. Proceedings under tlie will. The prohibitions of this section apply to, and are in favor of, an exec- utor who offers a will for probate. Schoonmaker v. Woolford, 20 Hun, 166. Thus, a specific and residuary legatee cannot testify on the probate of a will in hehalf of the contestants, who seek to set aside a codicil thereof as to conversations or transactions of the dece- dent with witness and others in his presence when the result of the establishing of said codicil would diminish the amount he would otherwise receive. Will of Duti- ham, 121 N. Y. 575 ; aff'g 15 St. Eep. 869. But such legatees may be called and examined as to such matters by a contestant of the will, as in such case the witness is not examined in his own behalf or interest since his in- terest is to have the will sustained. Matter of Potter, 17 App. Div. 267 ; Albany County Savings Bank v. McCarty, 149 N. Y. 71, 84. Also, where a person has been named as a legatee on condition that he perform certain services of a religious character, he is disqualified under the statute from testi- fying to conversations with the deceased. Matter of Burke, 5 Redf. 369. Also, a legatee of the income for life, the principal to go to her heirs, cannot testify to any conversation with deceased tending to diminish the legacy, by proving advances made during the lifetime of the testator. Benjamin v. Dimmick, 4 Eedf. 7. But a beneficiary under the will may testify to the execution of a codicil thereto, where the codicil has made no change in her interests and rights in the estate. Matter UNDER SECTIONS 829, 830 CODE CIVIL PKOCBDURK. 149 of Clark, 82 Hun, 341; 31 Supp. 476; 64 St. Eep. 85. Nor can a legatee called as a witness for a contestant be asked a question which calls for an answer which will disclose a personal transaction with the decedent. Will of Stewart, 24 St. Rep. 322. Nor can a proponent of a will and a beneficiary under it testify that he heard it read over to the deceased. Matter of Hopkins, 6 St. Eep. 390. Nor, in a contest of a will on the ground of fraud, can a beneficiary thereunder testify to a conver- sation he heard, in which he took no part, between the deceased and an attesting witness. In re Bernsee, 141 N. Y. 387 ; 57 St. Rep. 601. Neither can a beneficiary or devisee testify in behalf of the proponent of a will. Matter of O'Neil, 26 St. Rep. 242 ; Lee v. Dill, 39 Barb. 516. A plaintiff, in an action to establish a lost will against the administrators and next of kin, cannot testify to a conversation had between himself and the deceased at the time of the execution of the will and before on that subject. Simon v. Cloffy, 46 Barb. 438 ; aff'd 41 N. Y. 619. Nor can she testify that it was exhibited to her by the deceased, and that she read it in his presence. Keery v. Dimon, 37 Supp. 92 ; 72 St. Rep. 125. Also, where the probate of a will was opposed by a stranger in blood to testatrix, but who claimed under a former will, he was held to be an interested person within the statute. Matter of Smith, 96 N. Y. 516. A subscribing witness to a will is not competent to prove its execution, when he did not see the signature of the testatrix thereon. Matter of handy, 148 N. Y. 407 ; 14 App. Div. 160 ; 43 Supp. 689 ; 77 St. Rep. 689 ; Matter of Mackay, 110 N. Y. 611 ; Lewis v. Lewis, 11 N. Y. 220. 150 THE COMPETENCY AND EIGHTS OE "WITNESSES. It was also held a reversible error to allow the wife of the testator, who had acted as his interpreter, the testa- tor being paralyzed so as to deprive him of speech, to testify on the probate of his will, as to the wishes, inten- tions and directions of the deceased as expressed through her, she being a legatee, devisee and sole executrix under said will. Lane v. Lane, 95 N. Y. 4:95. Also held error, on such proceedings, to permit the executor, who presented the will for probate, and was the principal legatee, after proving the loss of a former will, to testify to its contents, and state that a memo- randum made by him was produced at an interview between himself and the decedent, and that from it the other will was drawn by him. Matter of Smith, 95 N. Y. 516. But an executor's right to commissions as such does not render him incompetent by reason of interest. Matter of Wilson, 103 K Y. 374 ; 3 St. Rep. 613. On the probate of a will, the daughter cannot testify to personal transactions or conversations with her father. Matter of Lasak, 31 St. Rep. 203 ; 10 Supp. 80 ; 131 N. Y. 621. It has also been held that she is not restored to competency by withdrawing as a contestant, and with-, drawing her appearance therein. Id. Nor can a daughter, where she is an interested party, testify to a conversation between the testator and his wife in which she took no part. In re Pahnateer, T8 Hun, 43. Nor can she testify that she has not received money which the will states she has, no other evidence of the gift having been produced. Doughty v. Doughty, 5 St. Rep. 95. A widow, who would have an inchoate right of dower in the property were the will declared void, cannot testify UNDER SECTIONS 829, 830 CODE CIVIL PROCEDURE. 151 on probate proceedings to transactions or conversations with the testator. Steele v. Ward, 30 Hun, 566. But the wife of a son of decedent can so testify in such pro- ceedings, her contingent dower in her husband's estate should the will be refused probate being considered an interest too remote. Estate of Scherrer, 22 Daily Reg. No. 4. It is the general rule that, upon probate proceedings, contestants are incompetent to testify to personal trans- actions or communications with the deceased, by reason of interest. Matter of O'Neil, 26 St. Rep. 242 ; Matter of Berrien, 24 Id. 332 ; Schoonmaker v. Wolford, 20 Hun, 166 ; Snyder v. Sherman, 23 Id. 139. Although legatees cannot, generally speaking, testify to such matters upon probate proceedings, yet they may do so, if they have executed a valid release of all their interest in the estate in question. Loder v. Whelpley, 111 IV. Y. 239 ; 19 St. Rep. 631 ; 16 Civ. Pro. 89 ; 1 Dem. 368. But the disability is not removed when the party exe- cuting such release proposes to give such testimony in behalf of such successor to such interest. O'Brien et al. v. Weiler, 140 N. Y, 281 ; 55 St. Rep. 637. § 62. Objections to witness. The incompetency of a witness cannot be inferred or presumed, it must be made out by the party alleging it. Steele v. Ward, 30 Hun, 555. Objections to the reception of incompetent testimony must be made at the time the same is offered, and the grounds thereof must be specifically stated. Much con- fusion seems to have arisen as to the manner and words in which this objection should be couched, arising from the apparent conflict of authorities upon this point. Thus it would seem that no objection would hold unless 152' THE COMPETENCY AND EIGHTS OP WITNESSES. this section of the Code was specially referred to as the ground of objection. Cross v. Smith, 86 Hun, 49 ; 32 Supp. 6Y1 ; Somerville v. Crook, 9 Hun, 664 ; Stevens v. Brennan, 'i'9 Hun, 254 ; Sanforth v. Ellithorpe, 22 Week. Dig. 829 ; Levin v. Bussel, 42 JST. Y. 261 ; Williams v. Sergeant, 46 Id. 481 ; Quinhy v. Strauss, 90 Id. 664. On the other hand, it has been held that an objection that the witness is not competent under section 829 of the Code is not sufficient, as being too general. JIam V. Van Orden, 84 N. Y. 271. A careful examination of these authorities will gen- erally show that the real ground for holding the objec- tions insufficient was that the objections were too general, not that the particular section was not men- tioned. An objection must be so made, and so ex- pressed, that the real ground thereof is clearly un- derstood by the court, and if this is the case, the phraseology is not important. This view of this much- discussed point seems to be completely borne out by the later decisions, which hold that it is not necessary to specifically refer to the section under which the objec- tion can be sustained, but it will be sufficient to base the objection upon the ground that the question calls for testimony relating to personal transactions or conversa- tions with the deceased and an interested v/itness. Sanforth v. Ellithorpe, 95 N. Y. 48 ; Boughton v. Bogardus, 1 Civ. Pro. 252. Where the court has erred in receiving incompetent evidence, which was properly objected to, the error can only be disregarded in appeal, when it is clearly seen that its reception did no harm. Foote v. Beecher, 'IS N. Y. 155 ; Hohart v. Hobart, 62 Id. 80 ; Schoonmaker v. Wol- ford, 20 Hun, 166. UNDER SECTIONS 829, 830 CODE CIVIL PROCEDURE. 153 Nevertheless, even if the objection raised to the recep- tion of this evidence is too general to grant a reversal if the court overrules the same, yet should the court sustain it, that ruling will be sustained on appeal, under this section. Tooley v. Bacon, 10 JST. Y. 34. It has been held that an objection to the declarations of a parent as to legitimacy of issue upon the ground of hearsay does not raise the question of incompetency under this section. Bell Y.Bumsted, 34 St. Rep. 393 ; 14 Supp. 697. Also, where, upon a trial, the intestate's son, who was entitled to a share in the estate, gave testimony which in part related to personal transactions with decedent, and partly to other matters, his testimony was objected to as incompetent, but the objection was held to be too general to raise any question upon appeal. Biggs v. Am. H. Soc. 35 Hun, 656. An objection to the testimony should be made when the same is offered. It is a reversible error in the court to refuse to allow an interested witness to be sworn, either as a witness in his own behalf, or in behalf of one of the parties to the action. The prohibitions of the stat- ute extend only to the testimony, and it may be that he could have given evidence of facts which would have changed the issue. Card v. Card, 39 N. Y. 317 ; Ham V. Va7i Orden, 84 N. Y. 257 ; Sanforth v. Ellithorpe, 95 Id. 48 ; Hoar v. Hoar, 23 Hun, 33 ; Biggs v. Am. H. Soc, 35 Id. 656. The usual practice is to allow the witness to give his testimony until it appears that his evidence comes within the rule, and then make the objection. As stated already, the objection must be made when the incompetent testimony is given, and not before. 154 THE COMPETKNCY AND BIGHTS OF WITNESSES. Therefore, even though the objection was couched in proper form, yet if it was made before the witness had been sworn, and not made again thereafter, it will not avail. Hoar v. Hoar, 23 Hun, 33. It has been held, however, that if an objection to incompetent testimony has once been properly made, it is not necessary to renew the objection and exception each time testiraony is given by the same witness, or others bearing the same relations toward the deceased. Hobart v. Hobart, 62 N. Y. 80 ; Schoonmaker v. Walford, 20 Hun, 166. Unless the objection to such testimony is made at the proper time, a motion afterwards made, to strike out the objectionable evidence as incompetent as within the pro- hibition of the statute, may not remedy the omission. Cross V. Smith, 85 Hun, 49 ; 32 Supp. 671 ; Hoyt v. Hoyt, 112 N. Y. 493. On this point the court says : " It is entirely clear that a party who has sat by during the reception of incom- petent evidence, without properly objecting thereto, and thus taken his chance of advantage to be derived by him therefrom, has not, when he finds such evidence preju- dicial to him, a legal right to require the same to be stricken out." Levin v. Russel, 42 N. Y. 261. This, however, seems to be largely a matter discretion- ary with the trial court, and its exercise of discretion thereon will not as a rule be disturbed on appeal. The court says upon this subject : " Usually the objec- tion must be made when the incompetent evidence is offered, and this is the rule as to all incompetent evidence. But if the objection be not made at the time, and the omission is shown to have been from mistake or mis- understanding, the trial coixrt may permit it to be made at any time before the close of the trial, by a motion to UNDER SECTIONS 829, 830 CODE CIVIL PROCEDURE. 155 strike out the incompetent evidence. This is not uncom- mon practice in the trial of cases. Wlien the objection is not made at the time the evidence is offered or given, it is in the discretion of tlie trial judge to permit it to he made at a later stage of the trial. That discretion should be carefully exercised, so that no harm will come to the other party ; and it should be exercised when it is just that the incompetent evidence should be excluded, and no harm done to the opposite party from the delay in making the objection." Miller y. Montgomery, 78 N. Y. 286 ; Matter of Burke, 5 Eedf . 369. Thus, where a witness for the plaintiff gave evidence of a conversation with the decedent, which went to aid the plaintiff, and the latter subsequently put in evidence assignments of the claim in question to him from the witness, it was held that a motion to strike out the testimony should have been granted. Campbell v. Hub- hard, 16 Week. Dig. 29. But on an unfriendly accounting against an admin- istrator, his testimony of transactions and conversations with the decedent called out by the moving party, it was held that the same could not be stricken out at the lat- ter's request. Crowe v. Brady, 6 Eedf. 1. Also held, that on a commission to examine a party before trial, interrogatories should not be stricken out as inadmissible, when it is not certain that objections to them would be raised upon the trial. Wilcox v. Dodge, 53 Hun, 565. Unless the objection is raised upon the trial of the ac- tion, the question will not be considered upon an appeal. Sacia v. Decker, 1 Civ. Pro. 4Y ; aff'd 1 Id. 54 ; 10 Daly, 204. If the original question asked the witness does not dis- close the incompetency of the testimony, he may be cross- 156 THE COMPETENCY AND EIGHTS OF WITNESSES. examined in regard to his answer without the cross-ex- amining party waiving his objection. Mills v. Kerno- chan, 3 St. Eep. 152. Also, where incompetent testimony has been received against the objection of the opposite party, the latter may cross-examine the witness as to the transaction. White v. White, 16 Week. Dig. 45. Tlie surety upon the bond of a non-resident executor is so interested in the event of an accounting of his prin- cipal, as to render him incompetent under the statute, to testify to personal transactions with the deceased on be- half of the executor, but the fact that the objectors to the accounting called him to testify to other matters to which he was competent to testify was held not be a waiver of their rights to object to the calling out of in- competent evidence upon cross-examination. Miller v. Montgomery, IS JST. Y. 282 ; Boston v. Scramling, 31 Hun, 467. The fact that the cross-examination of the witness involved also details relating to transactions with the deceased, generally stated upon his direct examination, does not preclude the cross-examining party from mov- ing to strike out the whole testimony as incompetent under the statute. Kerr v. McGuire, 28 N. Y. 446, 452. § 53. Competency restored. There are certain excep- tions to the rule regarding the incompetency of witnesses under this section. The statute itself designates some of the relaxations thereof in this respect, stating that the rule does not apply when " the executor, administra- tor, survivor committee or person so deriving title or interest is exam.ined in his own behalf, or the testimony of the lunatic or deceased person is given in evidence concerning the same transaction or communication." Section 829 of the Code of Civil Procedure ; Rogers v. UNDER SECTIONS 829, 830 CODE CIVIL PROCEDURE. 157 Rogers, 153 N. Y. 343 ; Kelly v. Burroughs, 33 Hun, 349 ; aff'd 102 N. Y. 493 ; Smith v. Christopher, 3 Hun, 585 ; Sweet v. Low, 28 Id. 432 ; Clark v. Bruce, 12 Id. 247 ; Marhel v. Benson, 55 How. Pr. 360 ; Shepherd v. Patterson, 3 Dem. 183. Thus, where an executor had alleged ownership in a certain bond found in the testator's trunk, and the widow testified to the declarations of the deceased as to ownership in himself. The executor produced two writ- ten declarations signed by the testator concerning the matter, which were held competent upon the ground that the party in interest had testified to the declarations of decedent. Smith v. Christopher, 3 Hun, 585. Also, where the executor had testified in his own behalf that he had called upon the trustee of the alleged trust and demanded the money received by him from the testator, and that the trustee then admitted the delivery of the same to him by the deceased, the trustee was held com- petent to testify as to what the real transaction was with the deceased, and not what it appeared to be, from that portion of it which was related by the executor. Todd V. Vaughan, 90 Hun, 70 ; 69 St. Rep. 861 ; 35 Supp. 457. Also, where the administrator brought suit against a physician for causing the death of the intestate, and the plaintiff, together with the wife and daughter of the deceased, were examined in behalf of the plaintiff as to what occurred at defendant's visits to the deceased, the defendant was also allowed to testify to what occurred. Markell v. Benson, 55 How. Pr. 360. Where an interested party testifies to declarations of the deceased, kindred declarations have been held admis- sible. Marsh v. Brown, 18 Hun, 319. But the fact that an executor, administrator or others 158 THE COMPETENCY AND EIGHTS OF WITNESSES. have testified to one transaction witti the deceased does not render the other party competent to testify to other transactions, but he must be limited to the matters tes- tified to by the others. Trimmer v. Trimmer, 90 N. Y. 675 ; Rogers v. Rogers, 153 N. Y. 34:3 ; CJiadwich v. Fonner, 69 N. Y. 404 ; Rogers v. McGuire, 90 Hun, 455 ; 37 Supp. 76 ; 72 St. Rep. 87 ; Ward v. Plato, 23 Hun, 402 ; Hammond v. Schultze, 45 Supr. 611 ; Gardner V. Hirsch, 37 Id. 503 ; Petit v. Geesler, 58 How. Pr. 195. Thus, where the administrator testified to certain admissions made by tlie defendant regarding the tei-ms of a certain contract between him and the deceased, on which the action was founded, the other party was held incompetent to testify as to the terms of the contract so claimed to be admitted. Chadwick v. Fonner, 69 N. Y. 404 ; rev'g 6 Hun, 643 ; Contra, Markell v. Benson, 65 How. Pr. 360. Where a surviving partner testified that a bill had not been paid, it was held that the defendant could not tes- tify that he had paid it to the deceased partner. Petit V. 'Geesler, 58 How. Pr. 195. Also, in an action by a surviving partner, for goods sold by the firm, where he testified to the negotiations between himself and the defendant, and stated that the actual sale was made by his deceased partner, the defendant was not allowed to give any testimony as to what took place between him- self and the deceased at that time. Goodwin v. Hirsch, 37 Super. 603. Where the question was as to an agreement made be- tween the plaintiff and the deceased, as to the payment of certain land bought by the defendant, who gave evidence of certain declarations of the plaintiff that he had made such an agreement, the plaintiff was not UNDER SECTIONS 829, 830 CODE CIVIL PROCEDURE. 159 allowed to deny that he had so agreed with the decedent. Cliadwick v. Former, 69 N. Y. 404. Also, where the executor, the plaintiff, was examined as a witness as to the language used by the defendant in asserting a claim for unpaid rent, it was held that this did not authorize an examination of the defendant in his own behalf to show what the agreement of hiring with deceased was. Hammond v. Schultze, 45 Supr. 611. Where the party representing the deceased, as a wit- ness in his own behalf, has given material testimony, the adverse party, although precluded from directly proving the existence of a transaction or communication with deceased, may yet testify as to extraneous facts tending to controvert such evidence given, although such facts may incidentally tend to establish the infer- ence that such a transaction or conversation has, or has not, taken place. Lewis y. Merritt, 98 N. Y. 206. See, also, 113 N. Y. 386 ; Pinnetj v. Orth, 88 N. Y. 447. Neither is the door opened to an adverse party for the admission of such testimony, from the fact that proof of such matters was made by a competent third party. Lyo7i V. Bicker, 56 St. Rep. 804 ; 141 N. Y. 225. jSTor does the testimony of a disinterested witness remove the bar to admit testimony of an interested person as to the same transactions. Hard v. Ashley, 44 St. Eep. T92 ; 18 Supp. 413. But the mother of a beneficiary under the will may testify as to such matters. In re Bellows, 22 Supp. 290 ; 61 St. Rep. 782. "Where evidence of a deceased plaintiff in a former trial is given upon the second in behalf of the represent- atives, the defendant may contradict, correct or supplant 160 THE COMPETENCY AND EIGHTS OF WITNESSES. the same as to anything which occurred at the trans- action or interview in question. Potts y. Mayer, 86 N. Y. 302 ; Bobbins v. Pultz, 48 Supr. 510. But the testimony of the deceased on another trial, brought upon other causes of action, does not render such evidence com- petent. Wood V. Holmes, 19 Week. Dig. 471. Effect of cross-examination. Another exception to the rule of incompetency may arise from the cross- examination of a witness or party. Where a party on cross-examination elicits a partial disclosure of a transaction not open to proof by his ad- versary, he thereby admits the other on the re-direct examination to explain the same and also to detail the complete transaction. Merritt v. Campbell, 79 N. Y. 625 ; Hoive v. ScJiweinberg, 23 Supp. 657 ; 4 Misc. 73. But where a party who is himself excluded from testi- fying to certain matters draws, upon cross-examination of the adverse party, testimony in regard to those trans- actions, this does not allow him to testify as to such pro- hibited facts nor contradict them ; as in such a case the adverse party is not deemed to have been examined in his own behalf within the meaning of the statute. Corning v. Walker, 28 Hun, 435 ; aff'd 100 N. Y. 547 ; Miller V. Adkins, 9 Hun, 9. But where the plaintiff called the defendant, who testi- fied to having written letters in which he stated that his father had given him money, the defendant may on cross- examination explain the character of the gift, to show that it was not an advancement. Sanford v. Sanford, 6 Lans. 486. Effect of release. Legatees or interested parties, while generally prohibited from testifying as to conversations or transactions with the deceased, yet are permitted to TTNDER SECTIONS 829, 830 CODE CIVIL PEOCEDTJBE. 161 do SO, if they have executed a valid release of all their interest in the estate. Loder v. Whelpley, 111 N. Y. 239 ; 19 St. Rep. 631 ; 16 Civ. Pro. 89 ; 1 Dem. 368. But the disability is not removed when the release is by one of two plaintiffs, the effect of which is to vest the interest released in his co-plaintiff. O'Brien v. Weiler, 110 K Y. 281 ; 55 St. Eep. 637. Nor when the releasee proposes to testify in behalf of such successor in interest. Id. A release of the interests of a proposed witness in the estate in question, which names no releasee and is not shown to have been delivered to any one, is insufficient to qualify an incompetent witness. Matter of Torring- ton, 79 Hun, 128 ; 61 St. Rep. 426. § 51. Under section 830. As section 830 of the Code of Civil Procedure seems to naturally be used in con- nection with section 829, it is deemed proper to insert it here. This section provides that : " Where a party (or wit- ness) has died or become insane since the trial of an action or the hearing upon the merits of a special proceeding, the testimony of the decedent (or insane person), or any person who is rendered incompetent by the provisions of the last section, 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, subject 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. The original stenographic notes of such testi- mony, taken by a stenographer who has since died or become incompetent, may be so read in evidence by any person whose competency to read the same accurately is established to the satisfaction of the court." 11 162 THE COMPETENCY AND BIGHTS OF AVITKESSES. To authorize the testimony to be used under this statute, the parties must have been parties in the prior suit, tlie issue must be the same, the testimony offered the whole testimony, and the right to cross-examination must have existed. People ex rel. v. Brugman, 3 App. Div. 155 ; Morehouse v. Morehouse, 41 Hun, 146 ; 11 Civ. Pro. 20 ; 3 St. Eep. T90 ; Varnum v. Hart, 47 Hun, 18 ; 14 St. Eep. 140 ; Vail v. Craig, 13 St. Eep. 549 ; 10 Supp. 101 ; Odell v. Solomon, 16 St. Eep. 577 ; 4 Supp. 400 ; 55 Supr. Ct. 410 ; Miller v. McGucken, 20 Week. Dig. 429 ; Bradley v. Merrick, 25 Hun, 272 : aflf'd 91 N. Y. 293. Also held, that the same ruling applies where the jury disagreed upon the former trial. Lawson v. Jones, 12 Week. Dig. 551 ; 61 How. Pr. 421 ; 1 Civ. Pro. 247. Where both the plaintiff and defendant had been ex- amined in an action before trial, under a stipulation, and the defendant thereafter died, and the action was con- tinued against his executor, it was held that the plain- tiff's deposition could be read in evidence, although relat- ing to personal transactions with the deceased. 3£ac- Donal V. Woodbury, 30 Hun, 35 ; 3 Civ. Pro. 337. Where the plaintiff had given testimony on the trial, but before it was completed one of the defendants died, it was held that such occurrence did not authorize the striking out of plaintiff's testimony. Comins v. Hetfield, 80 N. Y. 261 ; aff'g 12 Hun, 375. Also, that the testi- mony of a party, taken before trial, at the instance of his adversary, is admissible at the trial, notwithstanding the subsequent death of the adversary before trial. Bice V. Motley, 24 Hun, 143. Where, upon the first trial, the husband of the contest- ant testified, and before the second trial the contestant UNDER SECTIONS 829, 830 CODE CIVIL PROCEDTJKE. 163 died, it was held that it was competent to read the hus- band's testimony upon the second trial. Matter of Budlong, 54 Hun, 131 ; 26 St. Eep. 863 ; 1 Supp. 289. But in an action to recover for damages for an injury, the plaintiff's testator was examined in his own behalf before trial. While the action was pending he died, and the action was brought by his executor. It was held that the deposition could not be read in evidence against the objection of the defendant. Murphy v. N. Y. C. & H. B. Co., 30 Hun, 358. Also held, that the deposition of a deceased wife, in an action against her husband, was not competent evi- dence in proceedings relative to the custody of their child, upon the question of the fitness of the husband to its custody. People ex rel. v. Brugman, 3 App. Div. 155. OHAPTEE V. PRIVILEGED COMMUNICATIONS. Sec. 55. Preliminary. 56. Communications to an attorney. 57. What relations must exist. 58. Cessation of relations. 59. Objections to testimony. 60. "Who decides as to relationship and privilege. 61. What oommunioations are privileged. 63. What oommunioations are not privileged. 63. On probate of vpill. 64. Waiver. 65. Communications to physician. 66. What are privileged. 67. What are not privileged. 68. Probate proceedings. 69. Objections to testimony. 70. Waiver. 71. Communications to clergymen. § 55. Preliminary. There is a certain specified class of persons, the members of which, from the peculiar re- lations which must necessarily exist between them and persons seeking their aid, counsel or advice, are pro- hibited from making public any confessions, admissions or communications made to them, or any information derived by them, from such persons, which are made, or gathered, while the specified confidential relations ex- isted between the parties, which tend to the injury of their informants, or affect adversely their interests. Among the persons whose lips are thus sealed by statute are attorneys, physicians, clergymen and husbands and wives. 164 PEIVILBGBD COMMUNICATIOKS. 165 §56. Communications to attorneys. "An attorney or counsellor at law shall not be allowed to disclose a communication made by his client to him, or his advice given thereon, in the course of his professional employ- ment ; nor shall any clerk, stenographer or other person employed by such attorney or counsellor be allowed to disclose any such communications or advice given there- on." Code of Procedure, § 835. It has been held that this section applies to testament- ary cases. Mason v. Williams, 53 Hun, 398. Also, that advice given by a corporation counsel to officers or boards of a city government is privileged. People v. Gilon, 18 Civ. Pro. Rep. 109 ; 9 Supp. 243. This rule also applies to statements and declaratious made during consultations. Smith v. Smith, 1 T. & C. 63. But it has been held that communications made by a client to his attorney, for the purpose of obtaining pro- fessional advice or assistance as to the commission of a crime, are not privileged. People v. Blakeley, 4 Park, 176 ; Bank, etc., v. Mesereau, 3 Barb. Ch. 598 ; Covenyy. Tannahill, 1 Hill, 33. This statute was not enacted for the benefit of the at- torney, nor is it a privilege, which, strictly speaking, belongs to him, although he may exercise it. The bene- fits of this act are for the client only, by whom such information has been imparted, or to whom the advice has been given. Hoyt v. Jackson, 3 Dem. 368. This rule may be said to be of universal observance, and is based upon the ground that every client should have perfect freedom in consulting with his legal ad- viser. In all courts, therefore, a seal is placed upon a lawyer's lips as to all such transactions between himself 166 THE COMPETENCY AND EIGHTS OF WITNESSES. and clients, whether of words, deeds or acts, unless the client himself consents to the disclosure. Root v. Wright, 84 N. Y. T3 ; rev'g 21 Hun, 344 ; Carner v. Piatt, 15 Abb. N. S. 337 ; 36 Supr. Ct. 361 ; Yates v. Olmstead, 56 N. Y. 632 ; Bacon v. Frishie, 80 N. Y. 394 ; Britton v. Lorenz, 45 N. Y. 51 ; State v. Dawson, 90 Mo. 149 ; Parker v. Carter, 4 Mun. (Va.) 273 ; Craw- ford y. McKissocJc, IPort. (Ala.) 433; McLellan-v. Long- fellow, 32 Me. 494 ; Cheiv v. Farm. Bank, 2 Md. Ch. 231 ; Foster Y. Hall, 12 Pick. (Mass.) 89 ; State v. Hazleton, 15 La. Ann. 72 ; Satterlee v. Bliss, 39 Cal. 489 ; Milen v. State, 24 Ark. 346 ; Pierson v. Steortz, 1 Mon. (Iowa) 136 ; JenkinsonY. State, 5 Blackf. (Ind.) 465. This rule is not confined in its operation to communications made in contemplation of a suit, but extends to any matter which is the proper subject of professional employment, and so connected with the employment as attorney or counsel as to afford a presumption that it was the ground of the address by the client. Boot v. Wright, 84 N. Y. 72 ; rev'g 21 Hun, 344 ; Bacon v. Frishie, 80 N. Y. 394 mod'g 15 Hun, 26 ; Yates v. Olmsted, 56 N. Y. 632 mod'g 65 Barb. 43 ; Britton v. Lorenz, 45 JST. Y. 51 aff'g 3 Daly, 23 ; Carner v. Piatt, 15 Abb. N. S. 337. The fact that this advice is given gratis has no effect upon this rule. March v. Ludlow, 3 Sandf. Ch. 351. Neither is it necessary that the communications between them should have had reference to any particular suit. Gage v. Gage, 13 App. Div. 565 ; 43 Supp. 810 ; 77 St. Eep. 810. This privilege is also by this section extended so as to include all such communications or transactions between the client and the attorney's clerk. Code Civ. Pro. § 835 ; Sihley v. Waffle, 16 N. Y. 180 ; Brand v. Brand, 39 How. PRIVILEGED COMMUNICATIONS. 167 Pr. 193 ; Jackson v. French, 3 Wend. 33T ; Sandberger V. Oorham, 5 Oal. 450. It has also been held that an agent and the interpreter who acts between the attorney and his client come within the statute. Jackson v. French, 3 Wend. 337 ; Parker V. Carter, 4 Mun. (Va.) 273. It has been held both ways as to whether this rule covers one employed as counsel who has in fact not been duly licensed to practise law, but is merely a practitioner in justices' courts. Benedict v. State (Ohio), 11 N. E. Eep. 125 ; Temple v. Frost, 10 Iowa, 266. A person merely studying law in a lawyer's office seems to be without this rule. Barnes v. Harris, 7 Cush. 576. If others overhear such privileged communications between the client and attorney, they are competent witnesses. People v. Barker, 60 Mich. 277 ; Ooddard v. Gardner, 28 Conn. 172. Thus the jailer has been al- lowed to give testimony as to what he heard a prisoner tell his counsel concerning the case. Cotton v. State, 87 Ala. 75. But a scrivener, as the term is used in the United States, does not come within this rule. De Wolfe v. Strades, 26 111. 225 ; Barum v. Fonts, 15 Ind. 50 ; Coon V. Swan, 30 Vt. 6 ; Semple v. Frost, 10 Iowa, 266. The fact that certain correspondence between an at- torney and his client had been admitted in evidence upon a former trial, in violation of this rule, does not justify a repetition of the error upon a subsequent re-trial. Fire Assn. V. Flemming (G-a.), 3 S. E. Eep. 420. § 57. What relations must exist. Before a privilege upon this ground can be claimed, it must clearly appear that the relations of attorney and client existed between 168 THE COMPETENCY AND EIGHTS OF WITNESSES. the parties at the time, and that the communication was confidential and so regarded. AUhouse v. Wells, 40 Hun, 336 ; Bogert r. Bogert, 2 Edw. Ch. 399 ; Rochester City Bank v. Suydam, 5 How. Pr. 254 ; Marsh v. Howe, 36 Barb. 649 ; Sharon v. Sharon, Y9 Cal. 633 ; Brown v. Matthews (G-a.), 4 S. E. Rep. 13. And the burden of proving such relationship rests upon the party striving to suppress the evidence. Benihan v. Dennin, 103 N. Y. 573 ; aff'g 38 Hun, 2Y0 ; Rousseau v. Bleau, 131 N. Y. Ill ; Sharon v. Sharon, T9 Cal. 633. A formal retainer is not necessary to constitute this relationship. Gage v. Gage, 13 App. Div. 565 ; 43 Supp. 810 ; 11 St. Eep. 810. It has been held that even where the attorney did not understand he was acting as such, yet if the communi- cations were made to him in good faith, they were privi- leged. Aldermen v. People, 4 Mich. 414. It has also been held that where a prisoner supposed that he was dealing with one who was to act as his attorney, and in reliance upon that fact makes to him confidential communications, such communications are privileged irrespective of the fact whether such person who assumed so to act was an attorney or not. People V. Barker, 60 Mich. 277 ; People v. Stewart, 75 Mich. 21. But a simple inquiry of an attorney as to the existence of a matter of fact in which the inquirer is interested, does not create such a relation, nor prevent the attorney from testifying to what took place between them. Plane Manufg Co. v. Trawley (Wis.), 32 N. W. Rep. 768. § 58. Cessation of relations. The cessation of the re- lation of attorney and client does not give the former liberty to divulge the former confidential communica- tions which may fairly be said to have been induced by PRIVILEGED COMMUNICATIONS. 169 the previous relationship. Meyers v. Dorman, 34 Hun, 115 ; 20 Week. Dig. Ill ; Morris v. Cain (La.), 1 S. Rep. 797. Neither can a former attorney for a party be required by his former client's opponent to produce papers, with- out that client's consent. Estate of Hoyt, 1 Civ. Pro. Eep. 374. But also held, that one who had on former occasions sustained the relation of attorney to a party since accused of a crime may disclose confidential communications made by the accused to him, after he had refused to act for the former in that case. People v. Hess, 8 App. Div. 143 ; Mandeville v. Guernsey, 38 Barb. 225. Also, where an attorney informed one to whom he stood in the relation of attorney in regard to certain pending matters, that he could not advise with him in reference to a note in suit, as, had he been employed by the opposite side, statements made thereafter to him by such person were held not privileged. Plane Manuf'g Co. V. Trawley (Wis.), 32 N. W. Rep. 768. On the other hand, where such relations did exist as to bring the communications within the statute, the death of the client does not unlock the attorney's lips, but the statute may be invoked by the executor. Pearsall v. Elmer, 6 Redf. 181. § 59. Objections to the testimony. Where objection under the statute is made to the reception of testimony by an attorney, which also includes testimony which was competent, the objection is too broad. Brennan v. Hall, 20 Civ. Pro. Rep. 434 ; 39 St. Rep. 130 ; 14 Supp. 864. But an action upon a promissory note, after an attorney had testified to declarations made by the trans- feree of the note, it appeared upon his cross-examination 170 THE COMPBTE3SCY AND EIGHTS OF WITNESSES. that he was acting as counsel for the transferee at the time such declarations were made and that they were made to him as such. It was held error to refuse to- strike out the testimony. Loveridge v. Hill, 96 N. Y. 222. § 60. Who decides as to relation and privilege. When an attorney denies that he sustained the relation of attorney to the party seeking to exclude his evidence under the statute, the court decides from the facts ap- pearing whether he did or did not occupy such profes- sional capacity. Bacon v. Frisbie, 80 N. Y. 394. Where an attorney refused to testify to confidential communications between himself and client, based upon his opinion under oath that the transaction was such as he was privileged from testifying to, he was held to be properly sustained in his refusal. McClure v. Good- enough, 19 Civ. Pro. Eep. 191 ; 12 Supp. 459. It has also been held that the attorney cannot judge for him- self if a document called for is privileged or not, but must produce it for inspection of the court. Mitchell's Case, 12 Abb. 249. § 61. What commnnications are privileged. Of course all communications or transactions which occur between a lawyer and his client are not privileged, but from their peculiar nature certain of them are so deemed. Thus a counsel cannot be compelled to testify as to proof of claim in bankruptcy. Lockivood v. House, 49 Supr. Ct. 500 ; aff'd 101 N. Y. 647. Also, where the accused were charged w ith stealing articles among which were "one hundred and sixty dollars of current silver coin of the United States," it was held error to allow their attorney to testify that they paid him as a retainer forty- five dollars in silver and five dollars in gold. State v. PEIVILEGED COMMTJNICATIONS. 171 Dawson, 90 Mo. 149. Also, he cannot testify that his client executed a deed which he attested. Rousseau v. Bleau, 38 St. Eep. 221. The prohibition includes instructions given to an at- torney relating to the drawing of a will, and to conver- sations had with that attorney to enable him to carry out those instructions. Matter of Coleman, 111 N. Y. 220 ; rev'g 1 Dem. 368. And this too although the at- torney asked no questions and gave no advice. Id. The same rule applies to communications by word or act of a client to an attorney employed to draw a deed, and also to counsel upon that subject, and cannot be given in evi- dence by the attorney in an action between the grantor and a third person. Barry v. Coville, 53 Hun, 620 ; 25 St. Rep. 658 ; T Supp. 36. Testimony of an attorney representing a purchaser of real estate in preparing the deed, as to declarations of his client to the effect that he held the property for the bene- fit of another, is privileged. Mclntyre v. Costello, 6 Supp. 39Y ; 24 St. Eep. T65. But the attorney may testify that he drew a deed of his client's property conveying the same to certain per- sons, as knowledge thus obtained is not a privileged communication. Somtner v. Oppenheim, 14 Misc. 605 ; 40 Supp. 396 ; 78 St. Eep. 396. Also see Hebhard v. Haughian, TO N. Y. 54. A communication is privileged which was made to an attorney for the purpose of having him draw up an affidavit to procure a reduction of an assessment of his real estate. William v. Fitch, 18 N. Y. 546. Also, the information given by the client upon which the attorney drew the complaint, although not sworn to nor read over by the client. Armstrong v. People, YO N. Y. 38. Also, 172 THE COMPETENCY AND EIGHTS OP WITNESSES. the information necessary to enable his attorney to decide a complaint in his client's action. Sibley v. Waffle, 16 N. Y. 180. Thus on a trial for seduction, the complainant'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 N. Y. 38. But held that a pleading is not regarded as privileged, when it was not found in, nor produced from, the papers of the attorney who drew it, who had since died, but was found among the papers of the plaintiff's wife, whose title was confirmed by it, and who has a right to use it to repel any assault upon her title. Wilson v. Clancy, 6 App. Div. 449. But an attorney is incompetent to testify to any in- formation gained by him through professional relations with a party, or that he has such information as to create a belief in his mind as to the question at issue. Eastman v. Kelly, 16 St. Eep. 894 ; 1 Supp. 866. But it has been held that such facts regarding his client or the cause, which the attorney learned from others, are not privileged. Johnson v. Davergne, 19 Johns. 134 ; Hunter v. Watson, 12 Cal. 363 ; Rhodes v. Selin, 4 Wash. C. C. Y15 ; Patton v. Moore, 29 N. H. 163 ; Rogers v. Dare, Wright (Ohio), 136 ; Wilson v. State, 24 Ark. 346. Where communications are made to an attorney by either of two or more parties in the presence of the others, while he is employed as their common attorney to give advice as to matters in which they are mutually interested, the rule prohibits him from testifying to such communications in an action between his clients and third parties. Root v. Wright, 84 N. Y. 72 ; rev'g 21 Hun, 244. PRIVILEGED COMMUNICATIONS. 1T3 But where two or more persons together consult an attorney for their mutual benefit, or where he has acted for both parties, the attorney may, in a subsequent action between the parties, testify in regard to confiden- tial communications so made to him by them. Sanford V. Frost, 9 App. Div. 55 ; Britton v. Lorenze, 45 N. Y. 52Y ; Rosenberg v. Rosenberg, 40 Hun, 91 ; Sherman v. Scott, 2YHun, 331 ; Cahoon v. Com., 21 Graft. (Va.) 822 ; Hmilonr. Doherty (Ind.), 9 N. E. Eep. Y82 ; Robsonr. Kemp, 5 Esp. (Eng.) 52 ; Contra, Hull v. Lyon, 27 Mo. 670. All letters from an attorney to his client or from the client to the attorney, which are confidential in their nature, are also privileged. Matter of Whitlock, 15 Civ. Pro. Rep. 204 ; 2 Supp. 683. Thus, where a clienb, in divorce proceedings, had made an affidavit that he did not know the whereabouts of his wife, it was held error, upon his trial for perjury, for the wife's attorney to pro- duce letters written by the husband to her, tending to show that he did know her whereabouts, which were in- troduced without the wife's consent, and against her express wish. Selclen v. State, 74 Wis. 271. Also, a paper executed between an attorney and client, and having reference to the action, is privileged. Genet v. Ketcham, 62 N. Y. 626. Nor can a former counsel for a party to a litigation be required to produce papers received from such client, without the latter's consent. Estate of Hoyt, 7 Civ. Pro. Eep. 374. Papers entrusted to an attorney by his client are held not necessarily to be deemed privileged, and if he swears he is ignorant of their contents are not so deemed. Mitchell's Case, 12 Abb. 249. Also, if a document in the attorney's posses- sion is called for, he must produce it for the inspection of 174 THE COMPETENCY AND EIGHTS OF WITNESSES. the court. Id. The production of documents in the hands of counsel can be resisted only where a controversy exists, or is anticipated in relation to the subject on which communications were made to counsel or the documents entrusted to him. People v. Sheriff, 29 Barb. 632 ; Pech v. Williams, 13 Abb. 68 ; MitchelVs Case, 12 Abb. 219. Writings, documents and the like, of third parties, even though delivered to the attorney by his client, are not privileged. Matter of Whitlock, 15 Civ. Pro. Eep. 201 ; 2 Supp. 483 ; 21 St. Eep. Y19. § 62. What communications are not privileged. Cer- tain communications and certain information, gained from the client, are not considered privileged. Thus it was held that the attorney who drew the plaintiff's deed of the land for which the money in question was received could testify to that fact, to declaration by grantee or grantor at the time the deed was drawn, made in the presence of the plaintiff, and relating to the agreement for the investment of the money. Sheldon v. Sheldon, 11 Supp. 477 ; 33 St. Rep. 754 ; Greer v. Greer, 56 Hun, 251 ; 34 St. Eep. 448 ; Hehbard v. Haughian, 70 N. Y. 54 ; Shufelt-v. Wati^ous, 16 Week. Dig. 198. Also, that a deed was acknowledged at the grantor's house. Mut. Life Ins. Co. v. Carey, 54 Hun, 49.3. Also, to the instruc- tions given to him at the time, where the issue was whether an assumption clause had been inserted without the knowledge or consent of the grantee. Van Alstyne V. Smith, 82 Hun, 382 ; 63 St. Rep. 595 ; 31 Supp. 277. Also held, that the attorney must testify as to the de- livery to him of an instrument by his client, for delivery to another. Rousseau v. Bleau, 131 N. Y. 177. Also, the attorney who drew the will may testify to the dec- larations of the testator in the presence of witnesses at privilbg'bd communications. its the time of its execution, in relation to the will, and his satisfaction with its contents. Will of Smith, 39 St. Eep. 698 ; 15 Supp. 425. An attorney may testify that his client directed him to make^ and that he wanted him to make, an assignment of a bond and mortgage ; also to directions given by his client for his actions. Brennan v. Hall, 20 Civ. Pro. Eep. 434 ; 39 St. Eep. 130 ; 131 N. Y. 160. Also, to declarations of his client made in the presence of the adverse party. Hebbard v. Haughian, YO N. Y. 54 ; VlHiiting v. Barney, 30 N. Y. 330 ; Prouty v. Eaton, 41 Barb. 409 ; Woodruff v. JIusson, 32 Barb. 557 ; Brand v. Brand, 39 How. Pr. 193 ; Colt v. McConnell, 116 Ind. 249. Nor are communications made in the presence of all parties privileged. Britton v. Lorenz, 45 N. Y. 51 ; aff'g 3 Daly 23 ; Whitting v. Barney, 30 N. Y. 330 ; Smith V. Crego. 54 Hun, 22 ; 7 Supp. 86. Nor conversa- tions had in his presence between his client and third party or as to the declarations of such third party, Brennan v. Hall, 131 N. Y. 160 ; 39 St. Eep. 130. Also, statements made by two mutually interested parties in the presence of each other, to an attorney, may be testified to by the attorney after their death, in an action between their personal representatives. Hurl- burt V. Hurlburt, 21 Civ. Pro. Eep. 277 ; 128 N. Y. 420 ; aff'g 18 St. Eep. 407 ; 2 Supp. 317 ; Sherman v. Scott, 27 Hun, 331 ; 2 Civ. Pro. 366. An attorney may also testify to facts which the parties to an agreement openly stated to each other and re- quested him to embody in an agreement. Matter of Hicks, 14 St. Eep. 320. Also, to a conversation had with his client touching the disposition of the proceeds of a collected claim. Mulford v. Muller, 1 Keyes, 31 ; 3 Abb. 176 THE COMPETENCY AND EIGHTS OP WITNESSES. Ct. App. Dec. 330. Also, to the fact of his employment. Hampton v. Boylan, 46 Hun, 151 ; 10 St. Eep. 788. On a trial for an assault, testimony of an attorney, that at a certain time after the assault he was employed by a third person to do some business with the defendant, and that after the business was transacted the defendant used threatening language against the assaulted person, held not objectionable as disclosing a privileged com- munication. State V. Merchant (N. H.), 18 Ct. Eep. 654. Where the defendant was arrested for attempting to obtain money on false pretenses from a railroad company, and it was alleged that he sought to obtain damages for two trunks which he falsely claimed had been lost by the company, the court held that the defendant's attorney was properly required to testify as to his employment by the defendant to demand compensation from the com- pany. White V. State, 86 Ala. 69. Also, that an attor- ney must testify that, in collecting a claim which his client had assigned, he acted in behalf of such client, and that he was forbidden by the latter from paying the proceeds over to the assignee. Mulford v. Muller, 8 Abb. 330. A communication by one interested in an estate as a legatee to the attorney of the executor, with reference to a matter connected with the estate, is not privileged. Althouse V. Wells, 40 Hun, 336. Nor are the circum- stances of a mutual contract between himself and his client — such as a mortgage — when its validity is attacked within the rule. Foster v. Wilkinson, 37 Hun, 242. Nor a communication by a plaintiff to his attorney for the purpose of its publication to the defendant. Bart- lett V. Bunn, 10 Supp. 210. Nor where such communi- cation was imparted to the attorney with a request to PEIVILBGBD COMMUNICATIONS. 177 disclose it to another. Collins v. Robinson, 72 Hun, 495. And the attorney may testify to the purpose for which such communication was made to him. Id. Communications made to a friend, or to an attorney in the presence of a friend, are not privileged. People v. Buchanan, 145 N. Y. 1 ; 64 St. Eep. 427. Nor are com- munications made to an attorney who had acted as a mut- ual friend of the parties in an attempted settlement of the claim by defendant. Honletibeck v. McOibhon, 60 Hun, 26 ; 14 Supp. 393 ; 20 Civ. Pro. Rep. 406 ; 38 St. Eep. 652. An attorney who was also a surrogate's clerk was per- mitted to testify to communications made to him by the plaintiff as to the claim in suit, when the plaintiff endeav- ored to procure his services in arranging a settlement, and he declined to act. Avery v. Mattice, 29 St. Rep. 706 ; 9 Supp. 166. Also held, that terms of compromise offered by an attorney to the creditors of his client are not confidential. McTavish v. Denning, Anth. 155. A direction by a client to his attorney, to employ a certain person in connection with the suit in question, is not privileged. Martin v. Piatt, 51 Hun, 429 ; 21 St. Eep. 330 ; 4 Supp. 359. Also held, that this section does not shield a party from a disclosure by him of the facts relating to his delivery to his attorney of letters which are the legitimate subject of inquiry. Chellis v. Chapman, 26 St. Rep. 953 ; 7 Supp. 78. Also held, that an attorney for the defendant can be compelled to produce letters written to the de- fendant by the plaintiff. Harrisburg Car Manufg Co. V. Sloan (Ind.), 21 N. E. Eep. 1088. Also, that an attorney may be compelled to prove the existence of a paper, and that it is in his possession, so that the other party may give secondary evidence of its 12 178 THE COMPETENCY AND EIGHTS OF WITNESSES. contents. Brmidt v. Klein, 17 Johns. 335 ; Jackson v. McVey, 18 Id. 330. Also held, that an attorney may testify to the hand- writing of a former client. HoUhausen v. Pondir, 55 Supr. Ct. 73 ; 18 St. Rep. 369 ; afE'd 29 Id. 996. An accomplice who has turned state's evidence has been held not to be privileged in regard to answering questions which disclose his confidential communications to his attorney. People v. Oallagher, 75 Mich. 512 ; Jones V. State (Miss.), 3 So. Eep. 379. § 63. On probate of a will. It has been held that the same rule applies under probate proceedings as to the privilege of communications by word or act of a client to his attorney, employed by him to draw his will, upon that subject, or made to others in the attorney's presence, and they cannot be disclosed by the attorney on the pro- bate of the will, unless he was a subscribing witness thereto. Mattel^ of O'Neil, 26 St. Eep. 242 ; 7 Supp. 197. Thus it was held that the attorney could not state a conversation had between him and decedent relating to the drawing of a codicil, not executed prior to the in- strument propounded. Pearsall v. Elmer, 5 Eedf. 181. Also, a conversation in relation to preparing a new will. Estate of Wood, 3 Law Bull. 71. Also, as to communica- tions made to him by the testator, not in the presence of the subscribing witness or any third party, relating to the disposition of his property. Matter of McCarthy, 38 St. Rep. 121. But held that the testimony of the attorney who drew the will is admissible in connection with other evidence, to show the purpose of the testator in making a particular bequest therein. Sanford v. Sanford, 61 Barb. 293 ; 5 Lans. 486. Also, one acting as legal adviser of a testator, PRIVILEGED COMMUNICATIONS. 179 who becomes thereafter a subscribing witness, may tes- tify to matters relating to its preparation and due exe- cution. Matter of Elston, 6 Dem. 154 ; Code Civ. Pro. § 836. This rule does not apply where the attorney who drew the will is employed to contest it, and he cannot claim privilege against testifying. Sheridan v. Houghton, 16 Hun, 628 ; 6 Abb. N. C. 234 ; aff'd 84 N. Y. 643. It was held error, in probate proceedings, to refuse to permit the proponents to show by the draughtsman of the will, who was also an attorney and trustee under it, the instructions received by him, and that they were car- ried out. Matter of Chase, 41 Hun, 203 ; 4 St. Eep. 195 ; Matter of Austin, 42 Hun, 616. Also held, that where there is a contest of a will, the written instructions of the testator to the attorney who drew the will are not privileged. In re Chapman, 27 Hun, 573. An attorney is also a competent witness to prove all acts of a testator connected with the making and execu- tion of the will, which tend to uphold it. Matter of Mc- Carthy, 55 Hun, 7 ; 28 St. Eep. 342. § 64. Waiver. The privileges granted by this section may of course be waived by the client, and when this is the case the attorney has no option in the matter. Code Civ. Procedure, § 836 ; Westover v. ^tyia Life Ins. Co., 99 N. Y. 56 ; Bacon v- Frisbie, 80 N. Y. 394 ; Banh v. Mesereau, 3 Barb. Ch. 596. This waiver need not be in writing, or in any particu- lar form, but it must clearly show the intention to ex- empt the attorney in such case. Matter of Coleman 111 N. Y. 220 ; 19 St. Eep. 501. This privilege may also be waived by the personal representatives of the client. Staunton v. Parker 19 180 THE COMPETENCY AND EIGHTS OE "WITNESSES. Hun, 55 ; Whelpley v. Locler, 1 Dem. 368 ; Allen v. Pub. Admr., 1 Bradf. 221 ; Pearsall v. Elmer, 5 Eedf. 181. It has also been held that this privilege remains to the client after his interest has been assigned. Benjamin v. Coventry, 19 Wend. 353. This waiver may also be made indirectly. Thus, where the defendant himself examined his coun- sel as a v/^itness, he waives his privilege, and cannot ob- ject to the testimony as incompetent. Benjamin v. Coventry, 19 Wend. 353 ; Masterton v. Boyce, 53 Hun, 630 ; 6 Supp. .65 ; Ohio Code Civ. Pro. § 315. Also held, that the client has the right to call his counsel as a witness to testify to conversations between them. Smith v. Crego, 61 Hun, 22. Where the client himself subpoenas his attorney to produce papers, he cannot object if the papers are pro- duced pursuant to the subpoena, but gives his adversary the right to put those pertinent to the issue in evidence. Estate of Hoyt, 1 Civ. Pro. Eep. 374. It is the i-ule in England, and also seems to be held in some of our states, that a waiver of privilege is made when the defendant himself goes upon the stand ; and that upon cross-examination he may be asked questions touching the subject-matter of those confidential or secret matters which have been confided by him to his counsel. Woburn v. Henshaw, 101 Mass. 193 ; King v. Barrett, 11 Ohio St. 261 ; Com. v. Nichols, 111 Mass. 285. But this rule does not appear to be in general favor in our courts, and it will need more careful ex- amination of this subject, and a greater weight of authorities than are at present obtainable, before a rule of such doubtful expediency will be held to be binding upon American courts. Indeed it would appear that the con- PRIVILEGED COMMUNICATIONS. 181 trary view ■would be more generally held, since the courts have emphatically decided generally that the protection of the client and legal adviser in this respect are co- extensive, and that professional communications are ab- solutely privileged. Bigler v. Reher, 43 Ind. 112 ; Barker v. Kuhn, 38 Iowa, 395 ; State v. White, 19 Kans. 445 ; Boho v. Bryson, 21 Ark., 387 ; Hemmingway v. Smith, 28 Vt. 401 ; Carnes v. Piatt, 15 Abb. (N. Y.) Pr. N. S. 337 ; Alderman v. People, 4 Mich. 414 ; Dittenhofer v. State, 34 Ohio St. 91. Where a testator asks his attorney to act as a witness to his will he waives the privileges of secrecy afforded by the statute. Matter of Coleman, 141 N. Y. 220 ; 19 St. Eep. 501 ; In re Gagan's Will, 20 Supp. 426 ; 21 Id. 350. The statute upon this point is : "But nothing herein contained shall be construed to disqualify an attorney in the probate of a will heretofore executed or offered for probate, or hereafter to be executed or offei'ed for probate, from becoming a witness as to its preparation and execution, in case such attorney is one of the sub- scribing witnesses thereto." Code Civ. Pro. § 836. It has also been held that where there are several de- fendants in an action, who are jointly interested in the legal proceedings, and they have made confidential com- munications to, or consulted with, their common counsel, relating to the matters at issue, such matters concerning their common cause are privileged as to all the defend- ants, and it is not sufficient to render their attorney a competent witness as to the same, that the majority of the defendants have united in waiving their privilege ; all must waive it in order to render the attorney com- petent to divulge such communications. Bank v. 182 THE COMPETENCY AND FaGHTS OP WITNESSES. Mesereau, 3 Barb. Ch. 596 ; Doe v. Watkins, 3 Bing. (N. C.) 421 ; Beynell v. Sprye, 10 Beav. 51. It also seems that even where the partj^ making such confidential communications is not a party to the action, an objection by the party against whom it is offered will lie on the ground of public policy. Bacon v. Frisbie, 80 JSr. Y. 394. § 65. Communications to physicians. "A person duly authorized to practise 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 ca- pacity." Code Civ. Pro. § 831. Where a party seeks to exclude the testimony of a physician, the burden of proof rests upon him to bring the case within the provisions of the statute. People v. Schuyler, 106 N. Y. 298 ; aff'g 43 Hun, 88 ; Heath v. Broadway & Seventh Ave. B. B. Co., 5T Supr. 496 ; Henry v. N. Y. & L. E., etc., B. B. Co., 19 Civ. Pro. 188 ; 57 Hun, T6. The burden of proof is upon the party who seeks to exclude the testimony, not only of showing that the in- formation was acquired by the witness attending the patient in a professional capacity, but it must be shown in addition that it was such as was necessary to enable him to act in that capacity. Stowell v. Am. Belief Ass'n, 1 Silv. Sup. Ct. 246. The privilege conferred by this section is for the benefit of the patient, and not the physician. Johnson v. Johnson, 14 Wend. 636. Before this statute can be invoked, however, it must appear that the relation of physician and patient really existed between the witness and the objecting party, and PEIVILBGED COMMUNICATIONS. 183 the information was necessary to enable him to act. Edington v. ^tna Life Ins. Co., 11 N. Y. 564 ; rev'g 13 Hun, 543 ; Herrington v. Winn, 60 Hun, 235 ; Henry V. N. Y. L., etc., R. B. Co., 19 Civ. Pro. Eep. 188 ; 51 Hun, 16 ; Heath v. Broadway, etc., B. B. Co., 5T Supr. 496. This section excludes any knowledge derived by the physician frpm his patient, either by the patient's state- ments, or the statements of others present, or his own observation of the patient's symptoms. Edington v. Mut, Life Ins. Co., 67 N. Y. 185 ; rev'g 5 Hun, 1 ; Dilleber v. Home Life Ins. Co., 69 N. Y. 256 ; Grattan v. Met. Ins. Co., 80 N. Y. 281 ; Grattan v. Nat. Life Ins. Co., 15 Hun, 74 ; Edington v. JEtna Life Ins. Co., 11 N. Y. 564. This statute applies only to information acquired by the physician in attending the patient in a professional capacity for the purpose of enabling him to act in that capacity, and does not apply to information obtained by him in any other way. Benilian v. Dennin, 103 IST. Y. 573 ; aff'g 38 Hun, 570 ; Fisher v. Fisher, 42 St. Eep. 100 ; 129 N. Y. 654 ; 3 Silv. Ct. App. 640 ; 22 Civ. Pro. Eep. 48 ; HoytY. Hoyt, 9 St. Eep. 731 ; In re Lowensteine Will, 2 Misc. 323 ; 21 Supp. 931 ; Henry v. N. T., etc., B. B. Co., 57 Hun, 76 ; 19 Civ. Pro. Eep. 188. Nor are phy- sicians disqualified from testifying as to those matters which are apparent to all persons skilled in medicine, whether called professionally or not. In re Lotuensteine Will, supra. On the other hand, it has been held that it is not necessary to establish that the knowledge which a physician has acquired in respect to his patient, while attending her professionally, was necessary to enable him to prescribe for her ; it is only necessary in order to 184 THE COMPBTEKCY AND EIGHTS OF WITNESSES. exclude his testimony to show that he acquired the in- formation during tlie course of his professional visits. Matter of Darragh, 53 Hun, 591 ; 22 St. Rep. 553 ; rev'g 15 St. Eep. 452. But this provision does not apply to a physician who makes a casual prescription for a friend when meeting him upon the street. EcUngton v. Mut. Life Ins. Co., 5 Hun, 1 ; rev'd on other grounds, 67 N. Y. 185. But see Peojile v. Stout, 3 Park, 670. This statute excludes information derived from the sense of sight, as well as the sense of hearing, and it is not requisite to its exclusion that formal proof should be given, in the first instance, that the information was necessary to enable the physician to prescribe. Grattan V. Met. Ins. Co., 80 N. Y. 281. Nor need the examina- tion or consultation be private, in order that the statute may apply. Id. A physician himself is a competent witness to show whether his knowledge of a fact regarding his patient was or was not necessary to the due performance of his professional duties. Estate of Darragh, 15 St. Eep. 452 ; rev'd on another point, 52 Hun, 591 ; 22 St. Eep. 553. If the communications made by the patient are those upon which the physician relies in prescribing for the former, they are privileged. Edington v. ^tna L. Ins. Co., 17 Week. Dig. 566. And whether the witness was actuated by curiosity or a higher motive makes no dif- ference. Grossman v. Sup. Lodge, 25 St. Eep. 843 ; 6 Supp. 821. It has been held that it is sufficient to bring the case within the section that the physician attended as such and acquired his information in that capacity. Brigham v. Gott, 20 St. 420. And a physician who attends with the attending physician for the purpose of consultation PIIIVILEGED COMMUNICATIONS. 185 with the latter in regard to the patient's condition is within the section. Benihan v. Dennin, 103 N. Y. 573 ; aff'g 38 Hun, 270. It makes no difference upon the question whether the evidence of the physician is incompetent under this sec- tion : First : That the physician had not known the patient until the first interview. Grattan v. Met. Ins. Co., 24 Hun, 43. Second : That he was not consulted for a prescription and did not prescribe, hut only for advice as to the patient's ability to continue in business. Id. Third : That the patient's employer requested the phy- sician to examine him for that purpose, and paid for the physician's services. Id. But held, that a physician not employed by the plaintiff, but sent by the defendant to procure information as to the extent of the plaintiff's in- jury, and to obtain admissions as to the accident, is not within the prohibition. Heath v. Broadway, etc., R. JR. Co., 29 St. Eep. 267 ; 8 Supp. 863. Where a physician is selected by the prosecution and sent to a prisoner after a crime has been committed, and the prisoner accepts his services in a professional charac- ter, disclosures made by him are privileged ; and this rule applies to both civil and criminal proceedings. Peo- ple V. Murphy, 101 N. T. 126 ; rev'g 22 Week. Dig. 145. But a physician employed by the prosecution for the special examination of a person accused of a crime, for the purposes of prosecution, is not attending a patient in a professional capacity, and the physician is not ren- dered incompetent on that ground to disclose informa- tion acquired by him in such capacity. People v. Hoch, 150 N. Y. 291. Thus held, where a physician was sent by 186 THE COMPETENCY AND EIGHTS OF WITNESSES. the prosecution to examine a prisoner as to his sanity. People V. Sliney, 137 N. Y. 670. As to jail physicians, the tendency of the decisions seems to be, that they do not come within the prohibi- tions of this section. People v. Schuyler, 106 N. Y. 298 j aff'g 43 Hun, 88. This statute has been held applicable to proceedings upon an inquisition in lunacy, and the evidence of an attending physician held incompetent thereon. Matter of Baird, 11 St. Eep. 263. But see In re Benson, 16 Supp. 111. Also held to apply to the affidavit of a physician made for the purpose of supporting application for ap- pointment of committee of a lunatic or habitual drun- kard. Matter of Hoyt, 20 Abb. N. C. 162. This rule, however, seems to apply only to regular licensed medical practitioners, and does not extend to medical students, irregular practitioners or attendants in a physician's office. Wiel v. Cowles, 45 Hun, 307 ; 12 St. Rep. 427 ; Kendal v. Grey, 2 Hilt. 300. The death of the patient does not remove the obligation of secrecy. Grattan v. Met. Life Bis. Co., 80 N. Y. 281. Also held, that if the result of the whole examination cannot be given because forbidden by statute, no part thereof is proper. Id. A physician may, however, testify to the facts, that a person was his patient ; that he attended such person as his patient ; and the dates and number of times, hourly or daily, that he did so attend such patient. Patten v. N. L. & A. Bis .Assoc, 133 N. Y. 450 ; 22 Civ. Pro. Rep. 247 ; 45 St. Rep. 661. § 66. What are privileged. Information obtained by a physician with respect to the health of the insured, or as to other matters, while such insured was his patient. PRIVILEGED COMMUNICATIONS. 187 is privileged. Diliher v. Home L. Ins. Co., 10 Week. Dig. 180 ; 64 N. Y. 256 ; Patten v. United L. & Ace. Ass^n, 16 Supp. 376. Thus, in an action on a life insurance policy, the court refused to permit the certificate of the physician, fur- nished by the guardian to the association, and stating the cause of death to be delirium tremens, to be read in evidence. Buffalo L. T. & S. Dep. Co. v. Knights' T. & M., etc., Ass'n, 126 N. Y. 451 ; 38 St. Eep. 240. Also held, that a physician cannot testify to the physical con- dition of the insured at a time subsequent to the issuing of the policy ; nor is the privilege waived by offering the certificate of the death of the insured. Redmond v. Ind. Ben. Assoc, 28 Supp. 1075. In an action upon a life insurance policy which con- tained a clause avoiding it in case insured committed suicide, it appeared that the insured hanged himself. Plaintiff claimed that the deceased was insane at the time. A physician who attended the deceased shortly before his death was asked by the plaintiff, "How did you find him ? " It was held that such evidence was in- competent, on the ground that a waiver of such privi- lege cannot be made by the personal representatives of deceased. Westover v. JEtna L. Ins. Co., 99 N. Y. 56. But this rule has now been changed by the present sec- tion eight hundred and thirty-six of the Code. It has also been held incompetent for a physician to testify whether a party had a venereal disease while under his care. Sloan v. N. Y. C. R. R. Co., 45 N. Y. 125. Also, he cannot testify, in an action for divorce, to conversations with his patient tending to show him guilty of the charge of adultery. Hunn v. Hunn, 1 T. & C. 499. But held in a civil action for seduction that a physi- 188 THE COMPETENCY AND EIGHTS OF WITNESSES. cian called by the plaintiff was competent to certify that the defendant had consulted him as to the best means of l^rocuring an abortion. Hewitt v. Prime, 21 Wend, 79. In an action for personal injuries, a physician upon whom the plaintiff called the day after the accident was asked by the defendant's counsel if he conversed with her about the injuries, and if he made an examination of her. It was held that the question was incompetent within the statute. Feeny v. L. I. R. B. Co., 116 N. Y. 376 ; 26 State Rep. 729 ; aff'g 5 Id. 63. In an action for personal injuries, plaintiff's physician in attendance on the day of the amputation of plaintiff's leg was asked Vjy the defendant's attorney, "What was the condition of plaintiff's leg at that time ? " Held incompetent. Jones V. B. B. & W. E. B. B. Co., 21 St. Eep. 169 ; 3 Supp. 253. Also, in a similar action, where a physician testified he had visited the plaintiff professionally, and found no indications of injuries, he was held incom- petent. Williams v. Johnson (Ind.), 13 N. S. Rep. 872. Neither can physicians who attended a party prior to the infliction of the injuries complained of be examined as to the prior physical condition of the party, when the latter has not put the same in issue. Butler v. M. R. B. Co., 3 Misc. 453 ; 30 Abb. N. C. 78 ; 22 Sup. 163 ; 21 Id. 142. Upon a trial of an indictment for assisting in procur- ing a miscarriage, it was held that statements made by the defendant to the physician when called to attend the woman when dangerously ill, in reply to his inquiries and to enable him to prescribe for her, were privileged People V. Brower, 53 Hun, 217 ; 24 State Eep. 938. It has also been held that a physician cannot be com- pelled to deliver to a receiver of his property his original PEIVILEGED COMMTTKICATIONS. 189 book of account, which contains privileged information concerning his patients. Kelly v. Levy, 29 St. Rep. 659 ; 8 Supp. 849. Also held, that such a book of account is not subject to inspection and discovery at the instance of the defendant, in an action brought by him. Mott v. Consumers' Ice Co., 2 Abb. N. C. l-iS. § 67. What are not privileged. A physician who at- tended the deceased is competent on reference of a claim against his estate for services brought by a professional nurse, to testify to such services, and also to statements made to him by the deceased in reference thereto. Re McQueen's Estate, 13 Supp. 705 ; 37 St. Eep. 602. A physician who attended an injured person at a rail- road crossing may testify as to his declarations concern- ing means taken to warn him of an approaching train, Broivn v. B. W. <& C. B. B. Co., 45 Hun, 439 ; 12 St. Rep. 446. Also, as to the probable permanency of the physical ailments, where he does not claim that such ail- ments were caused by the accident. Brown v. Third Ave. B. B. Co., 18 Misc. 584 ; 42 Supp. 700 ; 76 St. Rep. 700. A physician who attended a 'testator during the last year of his life was held competent to answer questions which went only to his observations made of outward visible facts that were seen by him on those occasions when he was not attending testator as a physician. Burley v. Barnhard, 9 St. Rep. 587. Also held, in an action against a life insurance com- pany upon a policy, when a physician testified, in behalf of plaintiff, that he had attended the policy-holder for several months, and then ceased doing so, althoiigh his acquaintance with him continued until the latter's death, that he might testify whether the testator was cured 190 THE COMPETENCY AND EIGHTS OE "WITNESSES. when lie ceased attendance upon him, and also as to his general health, judging only from his appearance since the relation between them had ceased. Edington v. JEtna Life Ins. Co., 11 N. Y. 564 ; rev'g 13 Hun, 543. Also, in an action of the same nature, held that the defendant might prove by physicians the naked fact that he at- tended the deceased professionally. Numrich v. Supreme Lodge, 3 Supp. 552. But held, in a similar case, where the defense was false representations on the part of the insured in mak- ing his application, that he was not suffering from a certain disease, that it was incompetent to allow physi- cians to testify that they had treated the insured prior to the date of the policy, and that they were specialists and competent to treat such diseases. McCormick v. United L. & A. Ins. Ass'n, 79 Hun, 310 ; 60 St. Eep. 589 ; 29 Supp. 364. As to whether this section authorizes a physician to testify that a patient was free from a disease, quaere. People V. Schuyler, 106 JST. T. 298 ; aff'g 43 Hun, 88. It has been held that this statute cannot be invoked to shield one charged with the murder of his patient. Peo- ple V. Harris, 136 N. Y. 448. On the trial of an indictment for murder by poisoning, a physician who was called to attend the deceased while sick from the poison, was allowed to state for the prose- cution what he learned from his own examination and the statements of deceased to him. Pierson v. People, T9 N. Y. 424 ; aff'g 18 Hun, 239. A physician called as a witness was allowed to state what took place between the decedent and another phy- sician, when it appeared he was not the physician of the decedent at the time, nor attended at the time for PEIVILEGED COMMUNICATIONS. 191 the purpose of prescribing. Stowell v. A^n. Belief Ass^n, 23 St. YOG. § 68. Probate Proceedings. This statute is applicable to testamentary cases. Mason y. Williams, t>Q Han, S98 ; Loder v. Murphy, 111 N. Y. 239. When a probate of a will is contested upon the ground of unsoundness of testator's mind, a physician who attended the deceased professionally is not a competent witness for the con- testants as to any knowledge gained while attending deceased. Matter of Coleman, 111 N. Y. 220; 19 St. Eep. 501 ; In re Connor, ,5 Silv. Sup. Ct. 261 ; 27 St. Eep. 905 ; Matter of Hannah, 11 St. Eep. 807. But it has also been held that a physician is competent to testify to such facts in favor of the contestants, when they waived the privilege as the personal representatives of deceased. Staunton v. Parker, 19 Hun, 55. In proceedings to probate a will, the opinion of a physician based on facts and observations derived by him while attending the testator, as to whether the tes- tator could correctly and intelligently comprehend the nature and condition and value of his property, is ad- missible. Van Orman v. Van Orman, M St. Eep. 82i ; 11 Supp. 931. Also held no error for physicians to testify in favor of proponents as to declarations of testator as to the contest- ant's mental incapacity. Hoyt v. Hoyt, 112 N. Y. 493. Also, the family physician can testify, on probate of a will, as to family events in no way connected with physical complaints, and which were not obtained for the purpose of treating a patient. Matter of Boury, 8 St. Eep. 809. Also, as to declarations of testator as to making his will, and his advice upon the subject. Mat- ter of CNeil, 26 St. Eep. 242. Also, to other statements 192 THE COMPETENCY AND EIGHTS OF WITNESSES. made to him by the testator, which were not necessary to enable him to act professionally. Matter of Ilalsey, 29 St. Eep. 533 ; 9 Supp. Ml. Where a physician was called for the purpose of show- ing that decedent was unconscious on a certain day, he should be permitted to state as to whether the informa- tion he obtained was necessary for him to prescribe, or whether he obtained any information that day that was so necessary, and whether the decedent's condition was such that any person of ordinary intelligence could understand it as well as a physician. Ilerrington v. Winn, 20 Civ. Pro. Eep. 326 ; 38 St. Rep. 83. Also held competent, in an action contesting the valid- ity of a will, for the deceased's physician to testify that, in his interview with testatrix, her gestures and con- versation, language, everything that he could observe, impressed him as coming from a person of ordinary sound mind. Steele v. Ward, 30 Hun, 555. § 69. Objections to testimony. Under the statute, the former rule, limiting the right to object to a physician's testimony to the patient himself, is now done away with, and the personal representatives of a deceased patient may now claim the like privilege. Code Civ. Pro. §§ 834, 836. The right of objecting to disclosures by a physician of a privileged communication may also be exercised by an assignee, and his right is not affected by the death of the patient. Edington v. Mut. L. Ins. Co., 67 N. Y. 185 ; n N. Y. 564. But it has been held that a witness cannot make the objection. Johtison v. Johnson, 14 Wend. 637. Nor a defendant in a criminal trial invoke the privilege of an- other person in respect to privileged communications PEIVILEGED COMMIJKICATIONS. 193 made by another person to his physician. People v. Murphy, 101 N. Y. 126. The objection to such disclosures must be made at the time the evidence is given. Hoyt v. Soyt, 112 N. Y. 493 ; 21 St. Eep. 593 ; aff'g 9 Id. T31 ; 45 Hun, 590. An objection as to the proof of the medical attendant being duly authorized to practise must have been taken at the trial to be available on appeal. Record v. Village of Saratoga, 46 Hun, 448 ; 12 St. Eep. 395. §70. Waiver. "But a physician or surgeon may, upon a trial or examination, disclose any information as to the mental or physical condition of a patient who is deceased, which he acquired in attending such patients professionally, except confidential communications and such facts as would tend to disgrace the memory of the patient, where the provisions of section eight hundred and thirty- four have been expressly waived on such trial or examination by the personal representatives of the de- ceased patient, or if the validity of the last will and testament of such deceased patient is in question, by the executor or executors named in said will, or the surviving husband, widow or any heir at law or any of the next of kin of such deceased, or any other party in interest." Code Civ. Pro. § 836. Under the Code prior to the present amendments the privilege of waiver in this respect, where the validity of a will was at issue, was confined to the executors thereof, but it is now extended so as to include the persons men- tioned in the statute. Matter of Murphy, 85 Hun, 5Y5 ; 33 Supp. 198 ; 66 St. Eep. 826. The waiver need not be in writing or in any particular form, but it must clearly show the intention to exempt the physician in such case. Matter of Coleman, 111 N. Y. 220 ; 19 St. Eep. 501. 13 194 THE COMPBTEXCY AND EIGHTS OF WITNESSES. Where a physician is called as a witness by his patient the latter's attorney may waive the privilege in his client's behalf. Alberti v. N. T., L. E., etc., B. R. Co., 118 N. Y. YY ; 27 St. Rep. 865 ; aff'g 43 Hun, 421. Where the statutory provisions have been waived by the patient, and the information has been made public, the right to object is also waived. McKinney v. Grand St., etc., B. B. Co., 104 N. Y. 352 ; 4 St. Eep. 349 ; rev'g 35 Hun, 668. It has been held that this section does not apply in a case where the privilege was expressly waived by the de- ceased in the contract upon which the action is brought. Foley V. Boyal Arcanum, 78 Hun, 223 ; 28 Supp. 952 ; 60 St. Eep. 221 ; aff'd 151 N. Y. 196. Thus, where an application for a policy of life insurance contained the following stipulation: "The provisions of section 834 of the Code of Civil Procedure of the State of New York, and of similar provisions in the laws of other states, are hereby waived, and it is expressly con- sented and stipulated that, on any suit on the policy herein applied for, any physician who has attended or may hereafter attend the insured may disclose any in- formation acquired by him in anywise affecting the declarations and warrants herein made." It was held such stipulation was a direct waiver, and the testimony of an attending physician was competent on the trial of an action on the policy. Doiigherty v. Met. L. Ins. Co., 87 Hun, 15 ; 33 Supp. 873 ; 67 St. Eep. 489. Also held, that such stipulations were not against public policy. Id ; Foley v. Boyal Arcanum, 151 N. Y. 196. In the above cases, however, the stipulations were made before the amendment to the statute in 1891, which provides that such waiver shall be made upon the PRIVILEGED COMMUNICATIONS. 195 trial. But in a more recent case the court states, with- out reserve, that such a stipulation is valid even with the present amendment. Holden v. Met. Life Ins. Co., 11 App. Div. 426 ; 42 Supp. 310 ; 76 St. Eep. 310. It does not seem to be at all clear, however, that such is the case. The latest decision upon this subject, in Foley v. Royal Arcanum, supra, carefully refrains from deciding this point, but bases its finding solely upon the ground that the stipulation was made prior to the amendment of 1891, and that the subsequent amendment requiring the waiver to be made on the trial did not affect it. It would seem, therefore, that until a positive interpreta- tion of the statute on this point is given by the court of last resort, the effect of such a stipulation, made since the amendment of 1891, is a matter of doubt. It has been held that a decedent, by requesting phy- sicians called to examine her as to sanity to witness her will, expressly waives her privilege of objecting to the disclosure of information thus acquired. Matter of Freeman, 46 Hun, 458 ; 12 St. Eep. 175. But held, in an action to recover for personal injuries, that the plaintiff by waiving her right in respect to one physician, did not authorize the defendant to call the others who had attended her. Hope v. Troy L. R. R. Co., 40 Hun, 438 ; aff'd 16 St. Eep. 948 ; 110 N. Y. 643. But, on the other hand, it was held that where a party, who had been attended by two physicians at the same ex- amination, calls one of them as a witness to testify as to what took place at that time, he thereby waives his privileges and cannot object to the testimony of the other physician or to the same transaction. Morris v. N. T. & O. R. R. Co., 148 N.. Y. 88 ; rev'g 73 Hun, 660 ; 56 St. Eep. 31 ; 26 Supp. 342. 196 THE COMPETENCY AND EIGHTS OP WITNESSES. Where the plaintiff, in an action for personal injuries, testifies without any reservation whatever as to his in- juries and their effect upon him, or testifies to a con- sultation with his physician concerning the injury, he waives his privilege. Treanor v. Man. R. Co., 41 St. Eep. 614 ; 16 Supp. 536 ; 21 Civ. Pro. Eep. 364 ; rev'g 39 St. Rep. 186 ; 14 Supp. 270 ; Marx v. Man. B. R. Co., 66 Hun, 575 ; 10 Supp. 159 ; 31 St. Eep. 914. Upon this point the court says: "The patient may keep the door of the consultation room closed, but he cannot be permitted to open it so far as to give an im- perfect and erroneous view of what took place, and then close the door when the actual facts are about to be dis- closed. ... In construing this legislation we must consider the object that was sought to be obtained, viz., the greatest freedom in consultations with a physician. The reason for the rule no longer exists where the party himself pretends to give the circumstances of the privi- leged interview." Marx v. R. R. Co., supra. But held that it is not a waiver by the plaintiff of his right to close the lips of his physician, in an action to recover for injuries for the loss of his leg, by offering tes- timony to the fact that it was broken. Jones v. B., B., etc., R. R. Co., 21 St. Eep. 169 ; 3 Supp. 253. It seems to be a question whether a patient who calls witnesses as to his mental condition does not waive his privilege. People v. Schuyler, 106 N. Y. 298 ; aff'g 43 Hun, 88. But the interposition of a general denial in an action for medical services is not a waiver of the provisions of the statute. Van Allen v. Gordon, 83 Hun, 379 ; 31 Supp. 907 ; 64 St. Eep. 781. Where this privilege is waived, the physician has no PEIVILBGED COMMUNICATIONS. 197 option in the matter, but must answer the questions. Valensin v. Valensin (Cal.), 14 Pac. Eep. 397 ; Brown V. Met. L. Ins. Co. (Mich.), 32 N. W. Rep. 610. Thus held, that he may be compelled to state the result of a post mortem examination made by him. Summers v. State, 5 Tex. App. 365. § 71. Communications to clergymen. Such communi- cations or confessions, as are made to one's clergyman, priest or spiritual adviser in the exercise of such clerical character, are also privileged. This privilege did not exist under the common law, and confessions made to priests or clergymen were competent in evidence. Thus, when the prisoner, being a Roman Catholic, made a con- fession before a Protestant clergyman, that confession was permitted to be given in evidence upon his trial, and he was convicted and executed. Rex v. Spark (Eng.), N. P. C. 78. It was also held, upon a trial for a capital oflfense, that a clergyman is bound to disclose what has been revealed to him as matter of religious confession ; and in that case the prisoner was also convicted and exe- cuted. Bex V. Oilham (Eng.), Ry. & M. C. C. R. 198. The common law having originally been accepted in this country, the doctrine in this respect was also incor- porated in our laws. But the manifest injustice of such a rule has for some time been recognized by the jurists of the United States, and the old dogma of the common law in this respect has been largely done away with. Statutory enactments have placed confessions of this nature in the position that they ought to occupy on the ground of public policy, and placed the seal of prohibi- tion upon all such admissions or confessions. In this state it is provided that : "A clergyman, or other min- ister of any religion, shall not be allowed to disclose a 198 THE COMPETENCY AND EIGHTS OF WITNESSES. confession made to him, in his professional character, in the course of discipline enjoined by the rules of practice of the religious body to which he belongs." Code Civ. Pro. § 833. It is on the principle here embodied that suits cannot be maintained which would require a disclosure of the confidences of the confessional. Totten v. U. S., 2 Otto (U. S.), 105. Thus, where it appeared that a chaplain in a work- house had frequent conversations in his pastoral capac- ity with the inmates, it was held that he should not be called as a witness to confessions so received by him. Bex V. Griffin (Eng.), 6 Cox, C. C. 219. Limitation of this privilege. Admissions or confes- sions are not per se privileged because made to a clergy- man, but they must have been made to him in his pro- fessional character in the course of discipline enjoined by his Church. Thus, admissions made to a clegyman may be received in evidence in a criminal case, when they were not made to him in his spiritual character. People V. Gates, 13 Wend. 311. Also, communications received by a priest may be properly testified to when not so made. Gillooley v. State, 58 Ind. 182. Waiver. This prohibition of disclosures of confidential communications by a clergyman is intended only for the benefit of the penitent, and cannot be given by clergj^- men as evidence, unless the privilege is waived, upon the trial or examination, by the person so confessing. Code Civ. Pro. § 836. CHAPTEE VI. HUSBAND AND WIFE. Sec. 73. Preliminary. 73. What are oonfldential communications. 74. What are not confidential communications. 75. Husband and wife as witness for or against the other. 76. In actions for divorce. 77. In actions for criminal conversation. 78. In criminal oases. 79. Crimes committed against each other. § Y2. Preliminary. " A husband or wife is not compe- tent 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 marriage, or disprove the allegation of adultery. A husband or wife shall not be compelled, or without con- sent of the other, if living, allowed to disclose a confi- dential communication, made by one to the other, during marriage. In an action for criminal conversation, the plaintiff's wife is not a competent witness for the plain- tiff, 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 confidential communication had or made bet^veen herself and the plaintiff." Code Civ. Pro. § 831. " The husband or wife of a person indicted or accused of a crime is in all cases a competent witness, on the ex- amination or trial of such person ; but neither husband nor wife can be compelled to disclose a confidential com- 199 200 THE COMPETENCY AND EIGHTS OP WITNESSES. munication, made by one to the other during their mar- riage." Penal Code, § Y15. Burden of proof. It has been held that where the complaint is verified, the averments set forth in rule seventy-three are prima facie evidence, and the burden of proof is shifted upon the defendant, who must contro- vert the same as matter of affirmative defense. Farace V. Farace, 1 Civ. Pro. Eep. 419. § Y3. What are confidential communications. Except as to the specific actions mentioned in the statute, a hus- band or wife is a competent witness for or against the other, except as to what are deemed confidential marital communications. Code Civ. Pro. § 828. This was not the rule formerly, but recent stattites in this and most other states now place the husband and wife, generally speaking, in the same category as other witnesses. But these statutes, like our own, while grant- ing competency to married persons to be witnesses for or against the other, do not affect the prohibition regarding confidential communications had between them ; such cannot be disclosed. Jones v. Simpson, 59 Mo. 180 ; Young v. Gilvian, 46 N. H. 186 ; Beeves v. Herr, 59 Id. 81 ; Costello v. Costello, 41 Ga. 613 ; Moore v. Wingate, 53 Mo. 398 ; State v. McCord, 8 Kan. 232 ; Robinson v. Chadwick, 22 Ohio St. 527 ; Keater v. DimmicJc, 46 Barb. 158 ; Montgomery v. Pickering, 116 Mass. 227 ; Barker V. Kuhn, 38 Iowa, 395 ; Lingo v. State, 29 Ga. 470 ; Oriffln V. Smith, 45 Ind. 366 ; Walker v. Sanborn, 46 Me. 470 ; Cross v. Butledge, 81 111. 266 ; Jennie v. Mar- ble, 37 Mich. 319 ; Petmechy v. People, 2 Cr. Eep. 450 ; afif'd 99 N. Y. 415 ; Pillow v. Thomas, 57 Tenn. 12 ; U. S. V. Jones, 32 Fed. Rep. 569. The communications which a husband or wife are pro- HUSBAND AND WIFE. 201 hibited from disclosing are such as are expressly made confidential, or are of that nature, or induced by the mar- ital relation ; they do not refer to ordinary conversations relating to matters of business ; ParMiurst v. Berdell, 110 N. Y. 386 ;-15 Civ. Pro. Eep. 355 ; 18 St. Eep. 193. A communication is confidential within the meaning of this section when it is of a character that it cannot be supposed that both husband and wife could have been willing to discuss the subject in the presence of others. Warner v. P. P. Co., 133 N. Y. 181. Thus, after marriage has been proved and admitted, neither husband nor wife can disprove that sexual relations existed between them during their married life. B V. Reading (Eng.), Cas. Temp. Hardw. 79 ; B V. Luffe, 8 East (Eng.), 192 ; Wright v. Holgate (Eng.), 3 C. & K. 158 ; Murray v. Milner, 12 Ch. D. 345. But where the marriage or date of birth of a child is in dispute, the evidence of the parents is competent both to show they never were married, or the birth of the child before marriage. Murray v. Milner, 12 Ch. D. 345. It was held that a wife cannot testify to matters for which if true her husband might be indicted. Stewart v. Johnson, 3 Harr. (N. J.) 87. Also held, that a husband who contests his wife's will cannot testify to confidential communications had with his wife during marriage. Maynard v. Vinton, 59 Mich. 139. Nor, on a bill filed by a wife for moneys received by her for her husband, can she testify to the admissions of her husband. Gray v. Oray, 39 N. J. Eq. 511. Also, where the wife sought to show that her husband gave her money to take up certain notes. Washington v. Bedford, 10 Lea (Tenn.), 246. In an action for libel a husband cannot testify as to 202 THE COMPETENCY AND EIGHTS OF "WITNESSES. conversations he had with his wife, where such conversa- tions might tend to show that an unlawful intimacy- existed between the wife and a third party. Warnet- v. P. P. Co., 132 N. Y. 181. There are many authorities which hold that death does not remove the prohibition of the statutes. Barnes V. Camack, 1 Barb. 392 ; Gray v. Cole, 5 Harr. (Del.) 418 • Coffin V. Jones, 13 Pick. (Mass.) 444; Dexter v. Booth, 2 Allen (Mass.), 559; Cooke v. Grange, 18 Ohio, 626; Cornell v. Venarsdalen, 4 Pa. St. 364 ; BohVs Appeal, 98 Pa. St. 501 ; Cross v. Rutledge, 81 111. 266 ; Patton v. Wilson, 2 Lea (Tenn.), 101 ; Walker v. Sandborn, 46 Me. 470 ; Pillow v. Thomas, 57 Tenn. 120 ; Griffi,n v. Smith, 45 Ind. 366 ; Collins v. Mack, 31 Ark. 684 ; Lingo v. State, 29 Ga. 470 ; Spradling v. Conway, 51 Mo. 51 ; Williams v. Baldwin, 7 Vt. 503 ; jSfem v. £ow- ma?^, 13 Pet. (U. S.) 209 ; Wood v. Chetwood, 27 N. J. Eq. 311 ; Aveson v. iTwmajis (Eng. ), 6 East. 192 ; O'Con- nor V. Majoribanks (Eng.), 4 M. & G-. 435. Thus held, that the husband of a deceased wife, could not testify in a suit against the interests of her succession to what took place during her lifetime. Succession of Wade, 21 La. Ann. 343. Also, where a deposition contained com- munications held by deponent and her husband during his lifetime, they were held incompetent. French v. Wade, 35 Kan. 391. Also held, that divorce does not unseal the lips of the former husband and wife in this respect. Barnes v. Camack, 1 Barb. 392 ; Chamberlin V. People, 23 N. Y. 85 ; Ratcliff v. Wales, 1 Hill, 63. It has been held that the prohibition extends to con- fidential communications imparted by husband or wife to a third party. Brown v. Wood, 121 Mass. 137. Also, a conversation between husband and wife overheard hj HUSBAND AND WIPE. 203 small children, held to be privileged. Jacobs v. Hester, 113 Mass. 157. But held that a third person overhear- ing such conversations might testify thereto. Gannon V. People, 12T 111. 518. Also, a wife is competent to testify to such declarations and statements made to third persons in her presence. Mercer v. Patterson, 41 Ind. 444. Neither are conversations between husband and wife in presence of third parties, or overheard by third parties, privileged. Com. v. Oiff, 110 Mass. 181 ; Floyd V. Miller, 61 Ind. 224 ; State v. Carter, 35 Vt. 378 ; Pratt v. Delavan, 17 Iowa, 307 ; Allison v. Bar- row, 3 Cold. (Tenn.) 414 ; Fay v. Ouynon, 131 Mass. 31 ; State V. Hoyt, 47 Conn. 518, 540 ; Keator v. Demmick, 46 Barb. 158 ; State v. Buffington, 20 Kan. 599, 613. Nor a conversation between a prisoner and his wife. Simon's Case (Eng.), 6 C. & P. 332. The fact of non-communication between husband and wife has also been held to be privileged. Simon's Case (Eng.), 6 C. & P. 332. It has also been held that in all cases this privilege is personal, and does not attach to the subject-matter. State V. Buffington, 20 Kan. 599, 613 ; Com. v. Giff, 110 Mass. 181 ; State v. Hoyt, 47 Conn. 518 ; State v. Carter, 25 Vt. 378 ; Allison v. Barrotv, 3 Cold. (Tenn.) 414. § 74. What are not confidential communications. All communications are not privileged, nor is every- thing which has taken place between a man and his wife during coverture deemed privileged. Thus, where a bill was filed to set aside two deeds for fraud on the part of the husband, it was held that the wife was competent to testify to transactions with her husband. Crimmins v. Crimmins, 10 Alt. E. 800. Also held, that there can be no secrets or confidences 204 THE COMPETENCY AND EIGHTS OF WITNESSES. between husband and wife regarding trust property held by one or both, which a court of equity will allow one of them to keep from the cestui que trust. Wood v. Chit- wood, 27 N. J. Eq. 311. Also, that secrets disclosed in the ordinary course of business or the confidence of friendship are not privileged. Wilson v. Rastall (Eng.), 4 Ter. T58. A declaration made by the defendant the second night after marriage that he did not love the plaintiff and had made a mistake in marrying her is not a privileged com- munication. Fowler v. Fowler, 33 St. Eep. 746 ; 19 Civ. Pro. Eep. 282. Nor is a letter, written by the plaintiff and delivered to the defendant shortly before leaving him, giving her reasons for leaving, incompetent as a declaration made to defendant himself of facts which he had an opportu- nity to deny or excuse. Id. Nor a pretended confes- sion of adultery made by the husband in the hope of ren- dering a similar confession from his wife. Id. It has been held that the correspondence of a husband and wife, which is in control of a third party, may be used in evidence. State v. Bufflngton, 20 Kan. 599. In an action for a separation on the ground of cruelty, where the defense sets up a counterclaim for adultery, the defendant may testify in detail as to a conversation had with the plaintiff, his wife, where it is competent on the issue ; where such issues are tried together this diffi- culty seems inherent. Testimony competent on either issue must be admitted. Woodrich v. WoodricTc, 141 N. Y. 457. Where insanity is the issue, it has been held that its exhibition is not a communication in the sense of being a voluntary confidence, and a wife can testify she noticed HUSBAND AND WIFE. 205 nothing of the kind in her husband. U. 8. v. Ouiteau, 1 Mackey's Eep. 498. It has also been held that this prohibition only relates to communications made between husband and wife during the existence of marital relations, and anything which may have been communicated by a man to a woman before his marriage to her is not privileged. Otis V.Spencer, 102 111. 622. Nor do those made at the very time of marriage seem to come within the rule. People v. Bertholf, 24 Hun, 272 ; Van Tuyl v. Van Tuyl, 57 Barb. 235. The words in the section, "except to prove the fact of marriage," refer to the marriage which took place be- tween the parties, and it is not competent thereunder for a party to testify to a previous marriage, for the purpose of showing that her subsequent marriage to his adver- sary in the action was void. Finn v. Finn, 12 Hun, 339. See Southwick v. Southwick, 49 N. Y. 610. § 75. Husband and wife as witnesses for or against the other. In an action between husband and wife either is a witness for or against the other, save in the cases excepted in this section. Code Civ. Pro. § 828 ; Birdsall v. Patter- son, 61 N. Y. 43 ; Southwick v. Southwick, 49 N. Y. 510 ; aff'g 2 Sween. 234 ; Patterson v. N. Y. Cent. R. R. Co., 62 Barb. 364 ; Wehrkamp v. Willett, 1 Keyes, 250 ; Bailey v. Bailey, 41 Hun, 424 ; 3 St. Eep. 132 ; Minier V. Minier, 4 Lans. 421. This section does not apply to cases where the couple have lived together without being married. Dennis v. Crittenden, 42 N. Y. 542. In an action for a separation, where the plaintiff alleged the refusal of the defendant to allow her to re- turn home, his slanders of her, and accusations made by 206 THE C05IPETENCY AND EIGHTS OP "WITNESSES. him of her unchastity, and the defendant alleges her adultery with a person named, at a certain place,, which the plaintiff denies, it was held that the plaintiff could testify that there had been no impropriety between her and her alleged paramour. De Meli v. De Meli, 120 N. Y. 485 ; 31 St. Eep. TOi ; aff'g 11 Id. 291. Also, where a wife brought an action against her husband to recover an alleged balance of moneys belong- ing to her and received by him as her agent, the defend- ant was allowed to testify to conversations with her in which she agreed that the sums so paid should apply as payment of certain bills by him. Soutliwich v. South- wick, 49 N. Y. 510. Also, where husband and wife were co-plaintiffs, it was held that the husband could give evidence in her favor upon the trial of the action. Bird- sail V. Patterson, 51 N. Y. 43. It was also held, in an action on a promissory note by an indorsee against the maker, that the wife of the payee might testify in favor of the maker. Armstrong V. Noble, 55 Vt. 428 ', Morgan v. Hyatt, 62 Ind. 560. Also, that the wife is competent to support the title of her husband's baillee. Funk v. Dillon, 21 Mo. 294. Also, where a woman applies property taken upon execu- tion against her husband, she may testify in her own behalf. Furrow v. Cliapin, 13 Kan. 107. Also, where the defendant in replevin pleads the ownership of his wife, she may prove the same. McNail v. Leigler, 68 111. 224. In actions brought against railroad corporations for injury to the wife, the husband was held a competent witness in her behalf. Matteson v. N. Y. Cent. R. B. Co., 62 Barb. 364. § Y6. In actions for divorce. In actions for divorce, HUSBAND AND WIFE. 207 a party is not confined to denials, but may testify to affirmative facts to disprove the allegations of adultery. Stevens v. Stevens, 5i Hun, 490 ; 27 St. Eep. 602 ; 8 Supp. 47 ; Irsch v. Irsch, 12 Civ. Pro. 181. Or to avoid the inference to be drawn therefrom. Steffens v. Stef- fens, 33 St. Eep. 643 ; 11 Supp. 424 ; 19 Civ. Pro. 267. The husband or wife can testify to any fact or circum- stance within his or her knowledge, competent and ma- terial on the question as to whether the act as charged was committed. Huntly v. Huntly, 73 Hun, 261 ; 26 Supp. 266. Also held, that in spite of this section, a husband or wife is competent as a witness in favor of the other, in an action for divorce on the ground of adultery. Bailey V. Bailey, 41 Hun, 424 ; 3 St. Eep. 132. Also held, that the testimony of the wife as to the fact of adultery will not be considered even when no objec- tion was taken by the defendant. Fanning v. Fanning, 20 Supp. 849. Confessions of adultery made by a defendant and proved on the trial, and which are not denied by him, will warrant a decree of divorce. Sigel v. Sigel, 20 Supp. 377. But a husband cannot testify to the material facts tending to establish the adultery of his wife. Cohvell v. Colwell, 14 App. Div. 80 ; 43 Supp. 439 ; 77 St. Eep. 439. When the plaintiff brings an action for divorce, and the answer puts in issue the residence of the plaintiff at the time of the commission of the adultery and the com- mencement of the action, the plaintiff is incompetent to testify as to such facts. Dickinson v. Dickinson, 63 Hun, 516 ; 45 St. Eep. 323. In an action for an absolute divorce, in which counter 208 THE COMPETENCY AND EIGHTS OF WITNESSES. charges of adultery are made in the answer, testimony of the plaintiff which is competent upon the issues pre- sented by the answer is admissible, although incompe- tent, upon the charges made by the complaint. McCar- thy V. McCarthy, 143 N. Y. 235 ; 62 St. Rep. 184. § 77. In actions for criminal conyersation. This sec- tion does not apply where the husband seeks damages for criminal conversation, and he may give testimony in his own behalf relating to the fact at issue. Smith V. O'Brien, 24 St. Eep. 708 ; 6 Supp. 174 ; Woods v. Gledhill, 56 Hun, 220 ; 31 St. Eep. 103 ; 9 Supp. 266. In an action for criminal conversation, a plaintiff's di- vorced wife is a competent witness for him to prove the marriage and offense. Wottrich v. Freeman, 71 N. Y. 601 ; Ratcliffe v. Wales, 1 Hill, 63 ; Dickerman v. Graves, 6 Cush. (Mass.) 309. But a wife cannot testify in favor of her husband in actions of this nature. Civ. Code, § 831. Cornelius v. Hamhay, 150 Pa. St. 359 ; Fratini v. Caslini, 66 Vt. 273. § 78. In criminal cases. Under section seven hundred and fifteen of the Penal Code, a husband or wife of the person on trial for a crime is a competent witness for or against the other. Thus, on the trial of a husband for murder, his wife is a competent witness against him. People v. Pet- mecky, 2 N. Y. Or. Eep. 458 ; aff'd 99 N. Y. 415. Also held, that letters from the defendant to his wife are com- petent. Id. On a trial for bigamy, the wife of the defendant may testify to the marriage and cohabitation. People v. Wentworth, 4 Or. Rep. 210. Upon a trial for murder, where the defense was in- HUSBAND AND WIFE. 209 sanity, the testimony of the defendant's wife to -mat- ters tending to show an adequate cause for the state of his mind existing subsequent thereto is competent. People V. Wood, 36 St. Eep. 952. The right to object to the competency of the wife as to the giving of evidence of confidential communications from the defendant, her husband, remains also with the husband, and upon his objecting she can neither be compelled nor allowed to testify to such matters. Id. § T9. Crimes committed against each otlier. Either party is competent against the other in cases of crimes committed by one against the other. People v. Nor- thriipp, 50 Barb. 149 ; People v. Carpenter, 9 Id. 580 ; People V. Fitzpatrick, 5 Park. 20. Thus, a wife is a competent witness against her husband for shooting at her. Beg. v. Pearce (Eng.), 9 0. & P. 907 ; also for at- tempting to poison her. People v. Northrupp, 50 Barb. 147 ; Com. v. Sapp (Ky.), 14 S. W. Rep. 834 ; she is also a competent witness against her husband upon a charge of procuring a miscarriage. State v. Dyer, 59 Me. 303. Also, where he is upon trial for assault upon her, she may so testify. Johnson v. State, 94 Ala. 53 ; Tucker v. State, 71 Id. 342 ; Turner v. State, 60 Miss. 351 ; ViHiipp Y. State, 34 Ohio St. 87 ; Stater. Davis, 3Brev. (S. Car.) 3; Com. v. Murphy, 4 Allen (Mass.), 491; U. S. v. Fitton, 4 Cranch (C. C.) 658 ; U. S. v. Smallwood, 6 Id. 35 ; Rex v. Azire (Eng.), 1 Stra. 633. Also, where he is upon trial for assisting another man to commit a rape upon her. Bex v. Castlehaven, 1 St. Tr. 393. The wife is also competent to prove acts of cruelty committed by her husband. People v. Mercein, 8 Paige, 46. In an action for separation, husband and wife are held 14 210 THE COMPETENCY AND EIGHTS OF WITNESSES. to be as competent as other witnesses. Casey v. Casey, 4 Daly, 270. Where the husband is the person injured by his wife, he may also testify against her. Whipp v. State, 34 Ohio St. 87 ; State v. Davidson, 77 N. C. 522. Thus, when the wife struck her husband with an axe, the husband was held competent to give evidence against her. State v. Davidson, 77 N. C. 522. CHAPTER VII. CONFESSIONS. Sec. 80. Statute regulating. 81. Preliminary. 82. Knowledge of the language requisite. 83. Weight of. 84. Its weight for the jury. 85. Identity of declarant must be proved. 86. Confession must be voluntary. 87. Induced by threats or compulsion. 88. Illustrations. 89. Threat or promise made indirectly. 90. Confessions induced by promise of reward or favor, or given under a stipulation. 91. Confessions of guilt other than the crime charged, made under inducements as to the latter. 93. Inducements by one in authority. 93. Statement made under duress. 94 Induced by artifice or fraud. 95. To officer or other person, while under arrest. 96. Statements made before coroner. 97. Judicial confessions. 98. Statement, how taken. 99. Statement unavailable for the defense. 100. When the court holds a preliminary examination to de- termine competency of confession. §80. Statute regulating. " A confession of a defend- ant, whether in the course of judicial proceedings or to a private person, can he given in evidence against him, unless made under the influence of fear produced hy threats, or unless made upon a stipulation of the district attorney that he shall not be prosecuted therefor ; but is not sufficient to warrant his conviction, without ad- 211 212 THE COMPETENCY AND EIGHTS OP WITNESSES. ditional proof that the crime charged has been com- mitted." Grim. Code, § 395. This statute was intended to apply only to voluntary confessions, and not to change the statutory rules relat- ing to the examination of persons charged with a crime. People V. Mondon, 103 N. Y. 211 ; 4 Cr. Rep. 559 ; People Y. Chapleau, 121 N. Y. 266 ; 30 St. Rep. 992 ; People V. McCallam, 3 Cr. Rep. 189 ; aff'd 103 N. Y. 583. " The admission of a member of an aggregate corpora- tion, who is not a party, shall not be received as evidence against the corporation, unless it was made concerning, and while engaged in, a transaction, in which he was the authorized agent of the corporation." Code Civ. Pro. §839. Confessions are also divided into verbal or written; and the question of weight to be attached to them is, generally speaking, dependent upon the class the par- ticular declaration belongs to. There are, of course, many instances, in which, from the peculiar circumstances surrounding the case, a written confession may be entitled to much less credence than many verbal statements ; but, as a general rule, the con- trary is the case, and oral confessions must be carefully scrutinized before implicit confidence should be accorded them. There are many substantial reasons for the observ- ance of this caution, — in the first place the confession does not come to the court and jury first hand, but comes through the medium of a third party, upon whose trustworthiness its entire value depends. It is not enough that the witnesses be honest and sincerely de- sirous of telling the exact truth, for, unfortunately, all CONFESSIONS. 213 these elements may be present, and yet the version, as de- tailed by them, be very far from the statement received. There must be taken into consideration the infirmity of the human memory, the liability to misapprehension of the real meaning of the phrases used, or indeed the in- ability of the party hiinself to correctly express his true wishes. It is, therefore, absolutely indispensable that the witness should have thoroughly understood the declarant, and that the latter was fully aware, both of what he was doing, and also the meaning of the language he was employing. § 82. Knowledge of the language requisite. Under ordinary circumstances it would be an unnecessary re- quirement that it should appear that the witness was conversant with the language spoken by the declarant, and was able to converse intelligently with him in that language ; but where the witness and declarant are of different nationalities, it must appear that the language used was understood by them both. Thus, where it was shown that the witness had a very imperfect knowledge of the language, it was held to disqualify him from testi- fying to a conversation in which a confession was made, the whole of which was not understood by him. People v. Gillabert, 39 Cal. 663. However, it must not be understood that the witness is required to be very proficient in the tongue used ; it is sufficient if he is conversant enough with it to under- stand what the person says, or the substance, or the de- clarant is able to express himself in the language of the witness sufficiently well to convey his meaning to the witness. Berry v. Com., 10 Bush (Ky.), 16. Thus, where the witness, called to detail the confession made to him by the defendant, said, " He talked in very broken Eng- 214 THE COMPETENCY AND EIGHTS OF "WITNESSES. lish, and told me substantially as I have related it here, as near as I can get at it," it was held to be fairly in- ferred that the witness understood the defendant. Peo- ple V. Minisci, 46 Hun (N. Y.), 682. Where the confession was made partly in German and partly in English, and the witness did not understand German, it was held admissible, the court stating, " If the witness had said that a part of the same admission was in German and part in English, I think the evidence would have been inadmissible. But it appears the ad- missions were at the police office, after the prisoner had been searched and the bills found ; it does not appear that any portion of the admissions were in German. " People V. TJiomas, 3 Park (N. T.), 256. It is also necessary, irrespective of the language in which the confession is couched, that the person to whom it was made, or heard it, should also be able to remember distinctly the material parts of the admission. The exact words, the whole of the conversation, or that he in fact heard all that the accused said in the same conversa- tion, is not necessary to entitle the witness to give what he did hear in evidence, provided what he testifies to was substantially the conversation he heard. State v. Avery, 31 La. Ann. 181 ; Eskhridge v. State, 26 Ala. 30 ; Kendall v. State, 65 Id. 492 ; State v. Pratt, 88 N. C. 639 ; Berry v. Com., 10 Bush (Ky.), 15 ; Taylor v. Com. (Pa.), 18 A. Rep. 558. Where, however, only part of the conversation has been given by a witness, the defendant has the right to put in evidence all the rest or remainder of that same conversation which goes to explain or qualify that por- tion testified to. Plainer v. Plainer, T8 N. Y. 90 ; State V. Huson, 3 Sneed, 691 ; Real v. People, 42 N. Y. 2Y0 ; CONFESSIONS. 215 State V. Mock, 48 Wis. 271; State v. Brown, 1 Mo. App. 86. Thus, where the charge was extortion, and a witness for the prosecution testified to a confession by the accused to him at a certain time and place, which was in sub- stance that the prisoner admitted to him some of the facts and circumstances at issue, and also stated that his extortion was committed for the purpose of being re- venged upon the prosecutor for a wrong received, the prisoner was held competent to state the whole conver- sation which took place between him and the witness. People V. PenhoUow, 42 Hun, 103. This conversation, however, must be the identical one already referred to, for subsequent conversations or state- ments made at other times are not competent to qualify or explain the one given in evidence. Heal v. People, 42 N. y. 270. The condition of ihe defendant when he made his confession must also be taken into consideration in determining its value. His mental faculties may be disordered to such a degree as to preclude all idea of rational narrative, or his physical disability may render him unable to comprehend the nature of his statement, or, in his terror, words may unwittingly fall from his lips which are liable to a construction foreign to his intention, or he may even, in his fear and confusion, accuse himself and others of a crime of which they are innocent. An instance of this is seen in the celebrated case of the two Booms, who were convicted of the mur- der of their brother-in-law. They had a violent quarrel with their relative in a field, during which they felled him to the ground with clubs. He was seen no moi-e by the neighbors, who suspected that he was murdered. 216 THE COMPETENCY AND EIGHTS OF "WITNESSES. Seven years after, this suspicion was roused to a great extent by some foolish person's dreams, and the subse- quent finding of some articles belonging to the supposed murdered man concealed upon the premises of the ac- cused, and also in a hollow stump some bones were dis- covered. The accused, upon being arrested and tried, confessed their guilt and were condemned to die. For- tunately for them, before the day of execution the brother-in-law was found. N. Am. Review, vol. x., p. 418. There are also cases where a confession has been made by an innocent party in order to shield the guilty one. WarickshalVs Case, 1 Leach, Cr. Cases (Eng.), 299, n. Therefore, it is observed that two elements enter into the consideration of , a confession, and upon which its importance entirely depends, — the truth of the confession itself and the testifying character of the witness who repeats it upon the witness stand. § 83. Weight of. Most of the reasons for cautious scrutiny in regard to reception of confessions are re- moved and cease to apply when the confession is the deliberate act of the defendant, and only made as the result of calm, collected and careful thought. When a confession bears imprinted upon it such conditions, it becomes at once the most effectual evidence possible to obtain. People v. Bennett, 37 N. Y. 133. § 84:. Its weight for the jury. The amount of credit to which a confession is entitled is a matter for the con- sideration of the jury, and their determination must depend largely upon the circumstances which arise in each case. Any evidence which goes to support its credi- bility can be introduced by the people, and such evidence as may tend to destroy its claim to belief, or establish CONFESSIONS. 217 the illegality of its procurement, is proper on the part of the defense, — such as unlawful inducements, intoxica- tion, insanity and the like. People v. Kertz, 42 Hun, 336. § 85. Identity of declarant must be proYed. It is self- evident that no confession can be received in evidence against the defendant, unless absolute proof of his iden- tity vsrith the declarant be established. Therefore the person to whom the confession was made must show that the accused was the author of the admissions, and that he and no other made the confession which he formerly received and now details upon the witness stand. No particular mode of identification is required, any satisfactory means or manner of so doing are sufficient for that purpose. Thus a witness was allowed to give in evidence a confession which was made to him by the de- fendant, who was invisible to him at the time, through a soil pipe, he being able to swear to his identity by knowledge of the sound of his voice. Brown v. Com., Y6 Pa. St. 319. Identity can also be proved by a confession of that fact, made by the person arrested to the sheriff, provided such confession was not obtained in any of the ways which by law exclude evidence of confessions from being employed. State v. Foster, 36 La. Ann. 877. § 86. Confession must Ibe voluntary. There is one most essential qualification, which applies alike to all confessions of whatsoever nature and kind they may be, or how and where made, and that is, they must have been entirely free and voluntary in their inception. The existence of any fact, which robs a statement of this in- dispensable attribute, at once destroys its efficacy and 218 THE COMPETENCY AND EIGHTS OF WITNESSES. stamps its incompetency. It is absolutely necessary that it was a free-will offering on the part of the wrongdoer, caused by the desire on his part to sincerely and truth- fully state his connection with the crime of which he stands charged, and not a statement forced from him by any apprehensions of personal injury, or determined upon by reason of the influence exerted upon him of promise of money consideration, or hope of favor or re- ward. The existence of perfect freedom to act, with the mind unbiased by hope of gain or governed by fear, must have been present, and thus afforded the declarant an opportunity of choosing, and a freedom of choice, or the confession will not be admitted. Peoplb v. Druse, 103 N. Y. 655 ; People v. Mondon, Id. 311 ; Cr. Code, § 395 ; Cox V. People, 80 N. Y. 500 ; Oiven v. State, 78 Ala. 425 ;, Beery v. U. S., 21 Col. 186 ; State y. Guild, ION. J. L. (5 Halst.) 163 ; Tex. Cr. Code, Art. 662 ; Peojjle v. PMlUps, 42 N. Y. 200 ; People v. Wentz, 37 N. Y. 309 ; People v. McMahon, 15 N. Y. 384 ; Yates v. State, 47 Ark. 172 ; State V. Potter, 18 Conn. 166 ; State v. Carrick, 16 Nev. 120 ; People v. Porton, 49 Cal. 632 ; State v. Bostich, 4 Harr. (Del.) 563 ; Price v. State, 18 Ohio St. 418 ; Metz- ger v. State, 18 Fla. 481 ; Byrd v. State, 68 Ga. 661 ; Larose v. Com., 84 Pa. St. 200 ; Brown v. People, 91 111. 506 ; State v. Freeman, 12 Ind. 100 ; State v. Oossett, 9 Eich. (S. C.) L. 428 ; State v. Sopher, 70 Iowa, 494 ; Bedor v. Com., 80 Ky. 468 ; State v. Rigshy, 6 Lea (Tenn.), 554 ; State v. Wilson, 3 La. Ann. 497 ; Niclwlson v. State, 38 Md. 140 ; Grosse v. State, 11 Tex. App. 364 - Com. V. Nott, 135 Mass. 269 ; Lambert v. State, 23 Miss. 322 ; State v. Day, 55 Vt. 510 ; Hector v. State, 2 Mo. 166 ; State v. BrocJcman, 46 Mo. 566 ; State v. Simon^ 50 Id. 370 ; State v. HopJcirk, 84 Mo. 278 ; State v. CONFESSIONS. 219 Squires, 48 N. H. 364; Thompson v. Com., 20 Gratt. (Va.), T24 ; State v. Hogan, 54 Mo. 192 ; State v. Jones, Id. 4T8. It has been held that if no inducements have been held out, the confession will not be rejected because the de- clarant was not entirely without hope or fear. State v. Staley, 14 Minn. 105. This is correct, if nothing has been done by any one to produce the fear which he feels, and if the fear is of that nature which arises not from any outside influence, but is adduced from innate appre- hension arising from the knowledge of guilt and dread of the natural consequences of the act. Thus the fear of legal punishment which the fact of being arrested in- spires, or seeing the evil he has occasioned, or being con- fronted with the evidences of his giiilt, do not come under that definition of fear which the law declares will in- validate a confession. People v. Thorns, 3 Park, 256 ; Allen V. State, 12 Tex. App. 190. Neither is a confession to be excluded by reason of the condition of mind of the accused induced by a knowledge of the public indignation or popular excitement over the commission of the crime. People v. Kurtz, 42 Hun, 355 ; Honeycutt v. State, 8 Baxt. (Tenn.) 3Y1. The great care which the law exercises in this respect, to secure complete freedom from compulsion, relates to anything which savors in the least degree of coercion. Thus where the grand jury causes the one whose case they are investigating to come before them and testify therein, it has been held that no statement which he may there make can be used subsequently against him, and that, too, notwithstanding the fact that prior to giv- ing his testimony he was fully warned according to the terms of the statute. People v. Singer, 5 Or. Eep. 1. 220 THE COMPETENCY AND EIGHTS OE WITNESSES. The ground held by the court is, that it was not a free act on his part, hut being brought before that body against his wish, he was, in fact, compelled to give tes- timony against himself. § 87. Confessions induced Iby threats or compulsion. As has already been stated, the confession, to be of any service against the defendant upon his trial, must be a free act on his part, and not one induced by coercion or threats. Also, if the circumstances under which he made it tend to create the presumption that such appre- hensions surrounded the declarant at the time, his con- fession will not be allowed in evidence, for not only must there be an entire absence of all threats, but in addition there must not appear any act or acts which would create the suspicion of the employment of coercion to gain the object aimed at. Where such suspicious circumstances do exist, it becomes the duty of the prosecution to re- move them, for upon it then devolves the burden of proof. This requirement is universal, and no confession extorted by fear produced by threats or coercion is allowable. N. Y. Code Cr. Pro. § 395 ; Hector v. State, 2 Mo. 165 ; State V. Simon, 50 Id. 370 ; State v. Hagan, 54 Mo. 172 ; State V. Jones, Id. 478 ; State v. Guy, 69 Id. 430 ; State V. Hophirk, 84 Id. 278 ; State v. Anderson, 96 Id. 241 ; People V. Ah Ki, 20 Cal. 177 ; Sarah v. State, 28 Ga. 576 ; Warren v. State, 29 Tex. 369 ; Greer v. State, 31 Id. 129 ; Elizabeth v. State, 27 Id. 329 ; State v. Cowan, 7 Ired. (N. C.) L. 339 ; State v. Motley, 7 Eich. (S. C.) 327 ; Gates v. People, 14 111. 433 ; U. S. v. Richards, 2 Cranch. C. Ct. 439 ; People v. Hoy Ten, 34 Col. 176 ; Janes v. Com., 2 Mete. (Ky.) 30 ; Frederick v. State, 3 W. Va. 695 ; U. S. v. Humphreys, 1 Cranch. C. Ct. 74 ; Miller v. State, 40 Ala. 54 ; Rutherford v. Com., 2 Mete. CONFESSIONS. 221 (Ky.) 387 ; Spears v. Ohio, 2 Ohio St. 583 ; State v. Nel- son, 3 La. Ann. 497 ; State v. Grant, 21 Me. 171 ; State V. BostwicJc, 4 Harr. (Del.) 563 ; Com. v. Taylor, 5 Cush. (Mass.) 605 ; Stephen v. State, 11 Ga. 225 ; Jordan v. State, 32 Miss. 302 ; Miller v. People, 39 111. 457 ; People V. 5'mt^/i, 15 Cal. 408 ; Smith v. State, 10 Ind. 106 ; Melvy V. ^Stofe, 3 Coldw. (Tenn.) 362 ; State v. Guild, 10 N. J. L. (6 Halst.) 163 ; State v. Walker, 34 Vt. 296 ; State Y. Day, 55 Vt. 610 ; State v. Revelle, 34 La. Ann. 381. The threats, however, must have been made prior to, or at, the time the confession is made, and not subse- quent thereto, or they have no bearing upon the compe- tency of the confession. Kellinberger v. People, 9 Colo. 233. It has also been held that the fact that threats were formerly made does not render the confession in- competent, if it is shown that all influence of fear from such threats was removed when the confession was subsequently made. Walker v. State, 9 Tex. App. 38. "Where threats have been made, however, the burden falls upon the prosecution of showing the confession was not due to such threats. Cain v. State, 18 Tex. 387. The threats must also be of a nature to awake some apprehension of a personal injury, not a pecuniary one. Thus a confession which the accused made of a larceny committed by him, under threat by the owner of bring- ing a civil suit against him for the same goods, was allowed upon the trial of the defendant for such larceny. Capper v. U. S., 1 Marr. (Iowa) 259. Also, the law does not regard acts which could only awaken fears in the breast of the guilty, and could by no means create apprehension in the mind of innocence. Thus the fact that the accused was compelled to touch 222 THE COMPETENCY AND EIGHTS OE WITNESSES. the body of the man whom he was at that time accused of murdering, and that from tlae agitated feelings en- gendered from that proceeding he made a confession, was held not to be a ground for rejecting it. People v. Johnson, 2 Wheel. Cr. Cases, 378. § 88. Illustrations. The defendant was indicted for the theft of money, promissory notes and receipts. He con- fessed in the following words : ' ' Yes, I took it then, but did not hide it when you said I did. I hid it at a different time." The evidence showed that the confession was not the result of any promise of benefit to the accused, but it was the result of fear of legal punishment. The confes- sion was held competent. Gentry v. State, 5 S. W. Kep. 660. Three persons to whom confession were made testi- fied that no threats nor promises were offered, but that the ■confessions were free and voluntary. The defendant con- tended that they were extorted by mob violence. The only evidence to support this claim was given by one witness that there was excitement in the village that day, and more or less talk of violence ; but no demonstration occurred, nor did it appear that the defendant was alarmed thereby. Held, that the confessions were properly admitted. State V. Anderson (Mo.), 9 S.W. Rep. 636. Also, where the officer making the arrest told the defendant that he had enough to convict her, and that she might consider herself under arrest, the court held that the language did not in itself constitute a threat which would rob the confession of its voluntary character. People v. McCallam, 5 Cr. Eep. 143 ; aff'd 103 N. Y. 587. Also, where the prisoner appeared, when arrested, very much frightened, yet where it was evident that this state of mind resulted from the fact of the arrest, and not from any threats made by individuals, such fear does not CONFESSIONS. 223 prevent liis confession, made while in that state, from being competent. People v. Thomas, 3 Park, 269. Also, where the prisoner, who was charged with mur- der, after his arrest and commitment to jail, was brought into the sheriff's office and asked by that oflBcer if he desired to make any statements as to his whereabouts on the day of the murder ; that if he did, he would take it down in writing. The accused replied that he did, and thereupon made a statement. The court held it was a voluntary one. Murphy v. People, 63 N. Y. 590. Also held, that the mere fact that the feet of the accused were tied at the time of the making of the confession does not render it inadmissible. State v. Patterson, 13 Mo. 695. Also, where the accused was told by the officer, after he was under arrest, that "he was in a bad fix, and had got caught at last," the court held that the confession he thereupon made was competent. People v. Wentz, 37 N. Y. 304. The confession also held competent where the defend- ant, after being arrested,' was told by an inspector of police that he (the prisoner) was charged with the mur- der, and that he, the inspector, had been watching him since the shooting, and had seen him try to steal a barrel of whisky the night befoi^e his arrest. He also told him about the pledging of the pistol, which the defendant had pawned the day after the murder, and which was sup- posed to have been the weapon with which the deed was committed. People v. McGloin, 91 N. Y. 241. Where the conduct of the officer who makes the ar- rest is such that it was held it might have been suffi- ciently threatening to elicit a confession, the court rejected the confession made. Say v. State, 6 Baxt. 224 THE COMPETENCY AND EIGHTS OP WITNESSES. Tenn.), 244. Thus, where one policeman said to another who was accused of larceny, in the presence of the super- intendent of police, " You had better own up. I was in the place when you took it ; we have got you down fine ; this is not the first you have taken ; we have got other things against you nearly as good as this," the confession thereupon made was held to be incompetent. Com. V. Nott, 135 Mass. 269. Also, where a mistress locked up her seventeen year old servant in out-house until she confessed herself guilty of the arson charged against her, the court held it was not voluntary but due to compulsion. Hooher v. State, 81 Ala. 51. On a trial for the murder of a child by drowning, it appeared that the prisoner had been told that she had to tell what she had done with the child, and that otherwise they would get after her about it. The prisoner had then accom- panied the sheriff to a stream, in which the body was afterwards found, and said if any one walnted their negroes drowned to bring them to her. The court held that the confession was made under menace, and was not admissible. State v. Crowson (N. C), 4 S. E. Eep. 143. But where the defendant was arrested, tied and brought to the house of his employer in another county, where one of the vests which was stolen was found upon him, which being shown to him by his employer, who at the same time said, "Where did you getthat vest ? " " From you, sir," was the reply, this statement was allowed. State V. Sanders, 84 N. C. 728. Where the prosecutor and several others pursued the prisoner, shooting several times at him, before they succeeded in capturing him, the confession which he made immediately after his capture was ruled out upon his trial as not being volun- tarily made. Com. v. Coffee, 108 Mass. 283. But the CONFESSIONS. 225 mere fact that the person who made the arrest was armed with a gun, which he carried at present arms, does not exclude a confession which the defendant makes to him. McElroy v. State, 75 Ala. 9. Nor where the defendant had surrendered to the prosecutor, who had drawn his gun on him, and after walking with him two miles, on assurance that he would be protected, confessed his guilt of the crime, such confession was admitted. Nelson v. State,S Heisk. (Tenn.), 232. Where an eighteen- year-old boy, in the hands of unauthorized captors who had put a rope around his neck, confessed the murder, the confession was excluded as being extorted by fear, and the court held that its incompetency was not cured by the fact that, prior to making it, the mob told him it might be used against him. State v. Bevels, 34 La. Ann. 381. Where the defendant, who was accused of murder, was brought handcuffed by of&cers to the place where the relatives of the deceased were, and threats were made, and abusive language used against him, but the officers assured him of their protection, his confession made while still handcuffed was held to be competent in evidence against him. Honeycutt v. State, 8 Baxt. (Tenn.) 371. § 89. Threat or promise made indirectly. It seems that it is not necessary that the threat or promise made use of should have been directly made to the prisoner in order to exclude a confession made by him subsequently, but it is sufficient if such inducements were made to one who, from the peculiar relations existing between him and the prisoner, would be naturally supposed to com- municate the same to the accused. Rex v. Harding (Eng.), 1 Ann. M. & 0. 340. IS 226 THE COMPETENCY AND EIGHTS OP WITNESSES. § 90. Confessions induced by promise of reward or favor, or given under a stipulation. Any confession which was made by reason of any inducements being held out to the declarant in any manner or way what- ever, of obtaining any material benefit, other th3,n one of a moral character, excludes the subseqent use of that confession. State v. Simon, 50 Mo. 370 ; State v. Hogan, 54 Id. 192 ; State v. Jones, 54 Mo. 478 ; State v. Phelps, Y4 Id. 128 ; State v. HopTcirk, 8-4 Mo. 278 ; People v. Wentz, 37 N. Y. 309 ; State v. Day, 53 Vt. 610 ; State V. Lowhorne, 66 N. C. 538 ; 1 Greenleaf Ev. 14th Ed. § 219 ; 3 Russ. Or. 368. Thus it has been held that such an inducement exists, where the confession was obtained by the complainant having promised the defendant that if he would confess to him his guilt, he would refrain from prosecuting him for the crime. Upon the subse- quent violation of his word by the prosecutor who pro- ceeded with the action, it was not permitted to him to use the confession he so obtained by his lying promise. Smith V. State, 10 Grat. (Va.) 734 ; Boyd v. State, 2 Humph. (Tenn.), 39 ; State v. Lowhorne, 66 N. C. 538 ; Murphy v. State, 63 Ala. 1. Where the prisoner was visited during the night, in his cell, by three persons in succession, who were none of them officials, but who held out promises of favor to obtain a confession, the court refused to receive the con- fession, saying : " No reliance can be placed upon ad- missions of guilt so obtained ; for the very obvious rea- son that they are not made because they are true, but because, whether true or false, the accused is led to be- lieve it is for his interest to make them." People y. Wolcott, 51 Mich. 612. But a statement made by a de- fendant to two of his bondsmen that he was short in his CONFESSIONS. 227 accounts, at the time when he was not charged with the crime or under arrest, or any promise made to shield him from a criminal prosecution, is competent. State v. Carrick, 16 Nev. 120. One suspected of a crime, and arrested, on protesting his innocence, was released. He was called before the grand jury for three successive days, being kept under strict guard, the jurors urging him strongly to tell the truth, and promising him protection. He made a state- ment implicating others, and was then removed, under guard, no one being allowed access to him. The state's attorney assured him that the state would deal fairly with him if he would tell the whole truth. The next morning, while waiting to be called before the grand jury, three persons were admitted to him, who urged him to make a fuller statement ; whereupon he read them a confession for the grand jury. The court held that such confession was traceable to inducement. People V. Wolcott, 51 Mich. 612. While the defendant, who was accused of a murder, was at the station-house, and after a watch belonging to the murdered woman had been found upon him, he was asked by an officer where the remainder of the jewelry was. He replied that he did not know anything about it. The officer having afterwards repeated the question, the accused said to him, "Will you do me a favor?" The officer answered, " I will if I can ; I sympathize with you, and I pity you ; you are in a bad fix." The prisoner requested him to send his clothes to his mother, and then, in answer to questions by another per- son, made a confession. The court held no illegal in- ducement had been held out, and that the confession was allowable. Cox v. People,19 Hun, 430 ; aff'd 80 N. Y. 500. 228 THE COMPETENCY A^D EIGHTS OF WITNESSES. Also, when the defendant after his arrest was informed by the district attorney that he need not make those certain statements, which he subsequently did make, as they would probably be used against him, the statement so made was held voluntary, and therefore admissible. Willett V. People, 27 Hun, 469. It seems to be the general rule that where the defend- ant is offered immunity from punishment by the district attorney, or by words led to believe he will receive a modification of his pimishment, if he will make a complete and full confession of all the details and par- ticulars of the crime under investigation, and that there- upon, relying upon such promise, he does make a true statement, the law prohibits the future use of the same against him. JST. T. Code Cr. Pro. § 395 ; People v. O'Neil, 5 N. Y. Or. E. 303 ; 3 Euss. Cr. 3Y3 ; Com. v. Knapp, 9 Pick. (Mass.) 496 ; NewmariY. State, 49 Ala. 9 ; Simmons v. State, 61 Miss. 243 ; Nomack v. State, 16 Tex. App. 1Y8 ; State v. Johnson, 30 La. Ann. Part II. 881 ; People V. Wolcott, 51 Mich. 612 : Porter v. State, 55 Ala. 95 ; State v. Phelps, 11 Vt. 116. The rule is so rigid in this respect, that anything said or done whereby the accused might reasonably suppose that he was giving his testimony under such a promise is sufficient to ex- clude it. Thus where the detective who brought the ac- cused from another state to the one where the crime was committed said in answer to his often repeated question, " What benefit am I to get out of this thing ? " " That there could be no promise made to him ; that the only benefit he could get out of the thing, so far as he could see, was the benefit any state witness got. " After- ward, in the office of the district attorney of the trial county, and in his presence, he said to the defendant. CONEESSIONS. 229 " If you want to make a statement to the district attor- ney you can do it ; you can use your own judgment as to whether you want to make a statement or not ; the district attorney will make you no promises. " Thereupon the district attorney said, " Any statement you may make must be voluntary, and you can make one or not as you please." Thereupon the defendant made a confession which was held to be incompetent, the court saying: " And in looking at this question we must re- member the principle of morals, that a promise must be taken against the prisoner, in the sense in which he believed, or should have believed, it was understood by the promisee. It cannot be permitted that the district attorney, or anyone who may justly be believed to act for him, can use language which he must have thought would be understood by the prisoner as an assurance of freedom from prosecution, and can thereby obtain a confession, and yet that the people can use that confes- sion, because before the confession was actually made the district attorney said he could make no promises." People V. Kurtz, 42 Hun, 335. In a similar case the court said : "A more serious offense was committed in the efforts to obtain the con- fession than the respondent was guilty of, even if his confession was true, as it was a perversion of the process of the law — poisoning of the foundation of justice." Flagg v. People, 40 Mich. Y06. Also, where the district attorney testified that "he may have said to him that he might be used as a state's witness," the court rejected the confession. State v. Johnson, 30 La. Ann. Part II. 881. But where one against whom a charge was being in- vestigated by the grand jury appeared and offered him- 230 THE COMPETENCY AND EIGHTS OP WITNESSES. self as a witness, and though told by the district attorney that he could not be compelled to give his evidence, ho still expressed his willingness to testify, was sworn and confessed the crime, this confession was declared to be admissible against him upon his trial. U. 8. v. Kirh- wood (Utah), 13 Pac. Eep. 234. Also, where the district attorney informed the prisoner after his arrest that he need not make certain statements which he did make or they would probably be used against him, his statement, thereafter made, was admitted. Willett v. People, 27 Hun, 469 ; aff'd 92 N. Y. 29. It has been held that where an offer to confess has been made and rejected, and no confession made, that such offer can be put in evidence. Perkins v. State, 60 Ala. 7. It would seem that any statement that the accused might make, after the district attorney has withdrawn his promise, would not be considered as affected by the promise and would be admitted in evidence. Simmons v. State, 61 Miss. 243 ; Bex v. Cleves (Eng.), 4 C. & P. 221. But it has been held, where the accused has already made a confession under a stipulation with the prosecut- ing officer that he should receive favor, a subsequent withdrawal of such promise will not render another con- fession made thereafter competent, unless the prisoner has first had it clearly explained to him that the confes- sion he made under promise could not be used against him. Porter v. State, 55 Ala. 95. There is another question which arises in this connec- tion, and that is, if after the defendant has been promised immunity if he would confess and testify against his associates, and he does so confess, but thereafter refuses CONFESSIONS. 231 to testify against his fellows, can his confession be used against him upon his own trial ? There is no settled uniform rule regarding this ques- tion, and in those cases where this point has been raised, we have decisions both in the affirmative and negative. Holding the affirmative : Com. v. Knapp, 10 Pick. (Mass.) 4Y8; State v. Moran (Ore.), 14 Pac. Eep. 419 ; Bex V. Budd (Eng.), Cowp. 331 ; Bex v. Burley (Eng.), 2 Stark. Ev. 13 ; Bex v. Moore (Eng.), 2 Lew. C. C. 37 ; Contra : Allison, Proc. Or. Law of Scotland, 463 ; Wor- nackv. State, 16 Tex. App. 1T8 ; Neely v. State, 22 Id. 324 ; Lopez v. State, 10 Id. 190. This section applies only to confessions of the principal, and does not prevent an accomplice who has been promised immunity if he would confess, , from giving his testimony against his fellow. People v. O'Neil, 6 Cr. Eep. 303. Before a confession is received in evidence the defend- ant is entitled to show that it was obtained from him through fear and by promise of immunity. Permitting him to show such facts afterwards and then striking out the confession is not sufficient. People v. Fox, 121 N. Y. 449. § 91. Confessions of guilt other than the one charged, made under inducements as to the latter. The fact that illegal inducements are held out to one charged with a certain specified crime, with intent to make him confess that crime, if successful, does, as has been seen, exclude the use of any statement relating to his connection with that crime, which he may make under such circumstances. Another question arises, however, if such prisoner, under such inducements, does not confess to his participation in the crime about which he is interrogated, but does 232 THE COMPETENCY AND RIGHTS OP WITNESSES. acknowledge his gailt of some other and different crime of which he was not suspected or at least not accused. It seems that where the crime he confesses to is so en- tirely distinct from that in which the efforts to secure a confession are made as to be completely unconnected with it, that then such confession is admissible in evi- dence, if he is placed upon trial for the commission of that latter crime. State v. Underwood, 'i'5 Mo. 230 ; Com. V. Whittmore, 11 Gray (Mass.), 201. The crime confessed must, however, be so unconnected with the one in which the illegal efforts to secure a con- fession are made, that it cannot be in any degree affected or influenced thereby. "Where such is not the case, the statement is excluded upon a trial for either offense. Bex V. Hearn (Eng.), 1 0. & M. 109 ; Grosse v. State, 11 Tex. App. 563. Confessions which the prisoner may make of his guilt as to other crimes, are not admissible upon his trial for the crime charged, as affecting his credibility, character, or for any purpose whatever. State v. Symonds, 67 Me. 148 ; Sutton v. Johnson, 62 111. 209. § 92. Inducements Iby one in authority. The induce- ments which are made by a private person, or by one who holds some position of authority or power to perform his threat or promise, vary widely in their effect. When such are held out to the prisoner by the latter class of persons, the character of the medium through which they come serves to render all confessions or statements made by reason thereof useless as evidence against the ac- cused. A threat or promise has no effect, unless backed up with the will and ability to carry it out, but when delivered to the defendant by one who possesses such power, the fears which are excited on the one hand by CONFESSIONS. 233 the threats, or the hopes aroused by the promises, serve at once to destroy all voluntary impulses, and as a rule vitiates the statement. People v. Wentz, ST N. Y. 303 ; Spicer v. State, 69 Ala. 159 ; Austine v. People, 61 111. 236 ; State v. Day, 55 Vt. 570 ; People v. Barrie, 49 Cal. 342 ; Young v. Com., 8 Bush (Ky.), 3G6 ; Vaughan v. Com., IT Gratt. (Va.), 576 ; Com. v. Culver, 126 Mass. 464 ; State v. York, 37 N. H. 175 ; Reg v. Taylor (Eng.), 8 Car. & P. 733 ; State v. Lowhome, 66 N. C. 639 ; State V. Wmfegferode, 9 Oreg. 153 ; State v. Kirby, 1 Strobh. (S. 0.) L. 156 ; Wilson v. State, 3 Heisk. (Tenn.), 232. It is important, therefore, not only to discover whether threats or illegal inducements were used, but also by whom and to whom. The question has not been generally decided if the threats or promises which are made to a prisoner are such as could be carried out only by a person clothed with authority so to do, it has any remedial effect upon a confession obtained thereby, that the person so making them did not occupy the position he pretended to, and in fact possessed no power to make good his words. The fact being that the prisoner at the time did really believe him to be a person holding authority and able to carry out his threats, it would seem that sound reasoning ought to exclude them. Indeed there is one decision which goes to sustain this view. People v. Wolcott, 51 Mich. 612. § 93. Statements made under duress. The same grounds which exist for the exclusion of a statement in- duced by threats appear in one extorted while the de- fendant was under duress, and render such a confession fatally defective. The duress meant by the statute must be a personal restraint exercised over the person of 234 THE COMPETENCY AND RIGHTS OP WITNESSES. the defendant contrary to his will and desire. A legal restraint, such as the incarceration of a person, legally committed or detained in jail, is not such a duress as can operate to the extent of invalidating any statement of the prisoner, which he may make while he is in that manner deprived of his liberty. The test seems to be, was the situation of the defendant such, that his loss of liberty was in itself a ground of apprehension of some personal harm, was the act which put him under restraint lawless, and illegal treatment reasonably to be inferred ?' If these conditions are present no act of his is binding, or words uttered by him to be used adversely to his in- terests. Thus on an indictment for arson, it appeared the de- fendant was a colored girl about seventeen years old, who was a servant of the prosecutrix, and of weak men- tal capacity, humble and docile in her disposition, and it also appeared that the prosecutrix had whipped her on several occasions. After the fire, the prosecutrix locked the defendant up in an outhouse, and then said to her, " Now, I reckon you will tell me something about burn- ing the house ; I believe you know all about it, "on which defendant confessed the arson. The court held that this confession was made under duress, as was also a similar statement made by her to another person, while she was thus confined, and that the admission in evidence of such confession was reversible error. Hoober v. State (Ala.), 1 So. Eep. 674. Thus also where a boy eighteen years of age was captured by a mob, who put a rope around his neck, the confession he made then was rejected. State V. Bevels, 34 La. Ann. 381. The guard in whose custody the defendant was put a rope around his neck and hung him up twice, when he confessed his guil^, CONFESSIONS. 235 and the next day was taken before a magistrate, ac- companied by two of the same guard, and there repeated his confession. The court held it inadmissible, since the confession was originally extorted from him by duress, and it did not clearly appear that the latter statement was not made under the influence which induced the former. Coffee v. State (Fla.), 6 So. Eep. 493. "Where, however, the defendant made a confession of incest to the daughter's husband under duress, but after- wards made the same confession to another person, when not threatened or menaced, such latter confession is properly admitted. MatthisY. Com. (Ky.), 13 S. W. Eep. 360. § 91. Induced Iby artifice or fraud. A confession which was obtained by any artifice or fraud practised upon the accused, provided it is not of that nature which would arouse feelings of apprehension on his part, or create such sentiments as might cause him to make a false statement, is not inadmissible because obtained in such a manner. Balho v. People, 80 N. Y. 431 ; State v. Staley, 14 Min. 105 ; State v. Hopkirk, 84 Mo. 278 ; State V. Brooks, 92 Id. 542 ; State v. Rush, 95 Id. 199 ; Price V. State, IS Ohio St. 418 ; People v. Druse, 103 N. Y. 655 ; State v. Phelps, 74 Mo. 128 ; Jefferds v. People, 5 Park, 522; Com. v. Hanlon, 3 Bi-ewst. (Pa.) 461. Nor indeed does it affect its competency, that it was obtained by deception, the prisoner having been misled as to the object and character of the ofificer. Jefferds v. People, 5 Park, 522. "Where a prisoner is falsely told that his accomplice has been arrested, or has confessed, the confession he thereupon makes by reason of this untruth will be allowed, although such mis- representations were made for the sole purpose of mak- 236 THE COMPETENCY AND EIGHTS OP WITNESSES. ing the defendant so do. People v. Druse, 41 Hun, 640 ; 103 N. Y. 656 ; Price v. State, 18 Ohio St. 418 ; State v. Jones, 54 Mo. 4T8. Also, a detective, who in oi'der to obtain a confession from one accused of a crime, disguises himself as a con- federate, or personates one also under the ban of the law, can detail such admissions as were made to him under the belief that his assumed character was what it purported to be. Campbell r. Com., 84 Pa. St. 18Y ; Ztate V. McLean, 36 Iowa, 343 ; Com. v. Wood, 1 Gray (Mass.), 86 ; State v. Brooks (Mo.), 5 S. W. Rep. 257. Also, held allowable to give the confession in evidence, which was obtained from the prisoner by falsely telling him his accomplices are in custody, or where he made it by reason of laboring under the mistaken supposition that they were. Rex v. Burley (Eng.), East T. 1818. Also, where a confession was made by the accused, while confined in jail awaiting trial, to a detective placed there upon a fictitious charge of crime in order to ingratiate himself with and obtain the defendant's confidence, is admissible on the trial of the defendant. State v. Brooks (Mo.), 5 S. W. Eep. 257. Also, where the prisoner asked the turnkey if he would put a letter in the box for him, and upon his promising to do so, gave him the letter, which the turnkey detained. Held admissible to use it upon the trial. Bex v. Dar- rington (Eng.), 2 C. & P. 418. But where defendant testified upon her cross-examina- tion that a certain letter offered as a confession was written at her mother's request, who came to the jail with another, and told her she had consulted a lawyer, who advised the writing of the letter, the court held that she has the right to prove by her mother and the CONFESSIONS. 237 other person, that at the conference she told them she was innocent of the alleged crime, since the conference and writing of the letter should be considered as one transaction, and should all go to the jury. People v. Yeaton (Cal.), IT Pac. Eep. 544. Where the accused gives a letter to another upon his promise to deliver the same to the address desired, or for the purpose of mailing, and which instead of so doing he opens, the contents are permitted in evidence. People V. McMahon, 15 N. Y. 384, 391. § 95. To officer, or other person while under arrest. The rule is almost general, that the mere naked fact, that at the time the defendant made a confession he was under arrest, and made it to the officer who apprehended him, or to some other custodian, does not render it in- admissible, unless indeed other disqualifying facts appear. N. Y. Code Cr. Pro. § 395 ; People v. Rogers, 18 N. Y. 9 ; Woodford v. People, 62 N. Y. 117 ; O'Brien V. People, 48 Barb. 274 ; Hartming v. People, 4 Park, 319 ; Murphy \. People, 63 N. Y. 590 ; Peoples. Deacons, 109 N. Y. 374 ; People v. Chacun, 102 N. Y. 669 ; aff'g 3 N. Y. Cr. E. 418 ; People v. Cox, 80 N. Y. 515 ; People V. Druse, 103 N. Y. 655 ; People v. Jaehne, 103 Id. 182 ; Anderson v. State, 25 Neb. 550 ; Eizzolo v. Com., 126 Pa. St. 154 ; Dodson v. State, 86 Ala. 60 ; Com. v. Holt, 121 Mass. 61 ; Harding v. State, 54 Ind. 359 ; State v. De- mareste, 41 La. Ann. 617 ; Bailey v. State, 80 Ga. 359 ; State V. Sopher (Iowa), 30 N. W. Rep. 917 ; Wolf v. Com. 30 Grat. (Va.), 833 ; State v. McLaughlin, 44 Iowa, 82 ; King v. State, 40 Ala. 314 ; State v. Suggs, 89 N. C. 527 ; State V. Patterson, 73 Mo. 695 ; State v. Carlisle, 57 Mo. 102 ; McCabe v. Com. (Pa.), 8 Atlantic E. 45 ; Boss v. State (Md.), 10 A. Eep. 218 ; State v. Bush (Mo.), 8 S. 238 THE COMPETENCY AND EIGHTS OF WITNESSES. W. Eep. 221; Com. v. Knapp, 9 Pick. (Mass.), 496; State V. Guy, 69 Mo. 430 ; Jackson v. State, 69 Ala. 249 ; Hopt V. Utah, 110 U. S. 574 ; Massey v. State, 10 Tex. App. 645 ; contra, Baker v. State (Tex.), 8 S. W. Eep. 23 ; State v. Phelps, 11 Vt. 116 ; State v. Oeorge, 15 La. Ann. 145. Thus, it has been stated by the court where this ques- tion arose, " There being no inducement, promise, threat or menace used to obtain the confession, or influence its being made, it is very clear, upon principle and au- thority, that it was properly admitted." People v. Wentz, 37 N. Y. 303. Also upon the same point by Judge Denio : " The objection to the testimony of the policeman assumes that no admission by a person ac- cused of crime, made to an officer who has him in cus- tody, can be received. It was not pretended that any threats, promises or other inducements to make a confession had been held out to the prisoner, but the objection was placed distinctly upon the ground first mentioned. I have looked carefully into all the cases referred to by the defendant's counsel in support of that position, and many others, and do not find that it has ever been held that the single fact of the prisoner being in ciistody was sufficient to exclude his declaration, whether made to the officer or third persons. On the con- trary, many of the cases, upon the competency of confes- sions, show that the prisoner was in custody at the time, and the question generally has been, whether the con- fession was voluntary, or was influenced by what was said to him by the officer or by others. " People v. Rogers, 18 N. Y. 9. Also: "No authority has been referred to which holds that a statement made under these circum- stances is inadmissible. The prisoner was at that time CONFESSIONS. 239 tinder arrest upon the charge of having committed the murder, and the statement was made to the officer in whose actual custody he had been up to the time that he was brought to the jail. But a statement made by a prisoner is not involuntary because made after his arrest to the officer who arrested him, and though made while in his actual custody." Murphy v. People, 63 N. Y. 590. Also held, on a trial for murder, that the testimony of the officers who arrested the defendant, of an admission by him that he committed the crime, is competent when it appears that the admission was made voluntarily, and without the influence of hope or fear, and not even in response to questions asked by the officers. State v. Sopher (Iowa), 30 N. W. Eep. 917. Also held, that the confession made by the defendant to the officer who holds him in custody is admissible in evidence against him, if it was fully and voluntarily made, and totally disconnected from any previous conversation or com- munication on the subject. State v. Demareste, 41 La. Ann. 617. To the same effect, held that evidence of a confession made by the defendant when he was arrested, there having been no threats or inducements made, ex- cept that in response to his request for advice he was told that if he was guilty, he " had better tell about it," but if not guilty he "ought not to own up," is admissible. Dodson V. State, 86 Ala. 60. Also, where the defendant was confined in jail, the confession he made to the sheriff was held admissible, where that officer testifies that such admission was made on the defendant's own motion, and without question or suggestion. People v. Oastro, 75 Mich. 137. In a trial for larceny, a policeman testified that after he had arrested the defendant and another, they disputed over the matter, and he said to them that 240 THE COMPETENCY AND EIGHTS OF WITNESSES. whichever one stole this vest should confess it, and de- fendant said, " I took tlie vest." He also swore that no inducement or threat was made to procure the confes- sion. It was held admissible. Bailey v. State, 80 Ga. 369. Also, where the defendant made criminating admissions upon being told by an officer having him in custody that his co-defendant had implicated him, but it did not ap- pear that such admissions were induced by promises, threats or intimidation, the court held the admissions competent. State v. Rush (Mo.), 8 S. W. Eep. 221. So also held admissible when induced by the officer having the defendant in custody, and who persuaded him that the evidence was sufficient to convict him, and that if he confessed he might possibly escape with a lighter punishment. People v. Deacons, 109 N. Y. 374. Upon this subject the court has said : " It is not suf- ficient to exclude a confession by a prisoner that he was under arrest at the time, or that it was made to an officer in whose custody he was, or in answer to questions put by him, or that it was made under hope or promise of a collateral nature." People v. Cox, 80 N. Y. 515. In a case of arson, the officer went into the room where the prisoner was confined, and told him he was in a bad fix, and had got caught at last. He then asked him to tell him who the others were, and in the course of conversa- tion with the prisoner, the latter asked him if they had got one D. and G. The officer asked him if they knew anything about it, and he said they did. The officer then asked the prisoner what was the first fire he was interested in. He said the first fire he had anything to do with was his father's barn, and that the next was the barn of one P., saying that he and the said G. set that CONFESSIONS. 241 on fire. The court held that as no promise or induce- ments had been lield out to the prisoner, his confession was wholly voluntary. People v. Wentz, 37 N. Y. 303. Also, where the prisoner was charged with murder, and was under arrest in jail, the officer asked him if he wished to make a statement as to his whereabouts on the night of the murder, and told him if he did he would reduce it to writing. The witness replied he did, and then made a statement. The court held that it was vol- untary and admissible in evidence. People v. Murphy, 63 N. Y. 590. § 9G. Statements made before coroner. "Whether or not the statement which the defendant made before the coroner, during the investigation into the cause of the death of the person for which crime he is undergoing trial, can be used against him, depends upon the fact as to whether he was under arrest for that murder at the time he testified, and, if so, whether his examination was conducted according to the statutory requirements. If he was not in custody at the time, charged with the commission of that crime, the testimony which he gave or the statement which he made, under oath though it be, is available against him upon his final trial. Hen- dricTcson v. People, 10 N. Y. 9 ; People v. Mondon, 103 N. Y. 211 ; People v. Thayer, 1 Park, 595 ; People v. Macleraney, 6 Id. 49 ; Clough v. State, 1 Neb. 320 ; State V. Taylor (Kan.), 13 P. E, 550 ; People v. Teachout, 41 N. Y. 1. This competency is not affected by reason of the fact that at that time he rested under suspicion of being the author of the crime, even if it appears that at the time he was testifying he himself was aware that he was suspected. Id. But a different aspect is presented if, at the time the 16 ■ 242 THE COMPETENCY AND RIGHTS OP WITNESSES. coroner is holding an inquest, it is known that a crime has been committed, and the defendant is also in custody accused of committing it, or as the supposed criminal. In that case his examination must proceed in strict con- formity to the statute, and any substantial deviation therefrom prevents the use of his statement against him thereafter. People v. Mondon, 103 N. Y. 211 ; People V. McMahon, 15 N. Y. 384 ; Crim. Code, §§ 188, 196, 198 ; Wood v. State (Tex.), 3 S. W. Eep. 336. On a trial for an indictment for murder, it appeared that the prisoner, who was an ignorant Italian laborer, unfamiliar with the English language, was arrested, without warrant, as the suspected murderer, and while under arrest was taken by the officer having him in charge before a coroner's inquest, and, after proof had been given of the homicide, was examined on oath by the district attorney and the coroner as to circumstances tending to connect him with the crime. It did not appear that he was informed he was not bound to an- swer questions tending to criminate himself. The prose- cution was permitted on the trial to prove under objec- tions and exceptions the statements so made by the prisoner. On appeal it was held fatal error. People v. Mondon, 103 N. Y. 211. But where the defendant was called and sworn at an inquest held over the body of his wife, and at the time no suspicion attached to him as her murderer, nor was it even suspected that the wife had died from poison ; the post mortem was not made until the following day, and it was not until the second day thereafter that defendant was arrested charged with the crime ; the court held, that as his statement had been made before he was charged with the ci'ime, and was not in custody at the CONFESSIONS. 243 time, it was admissible in evidence against him. Hen' drickson v. People, 10 N. Y. 12. Also, where the defendant appeared at a coroner's in- quest over his wife. At this time he was not under arrest, but knew he was suspected of the crime, having been told before he testified, by some one present, that " it was charged that his wife had been poisoned, and that he was the man that was going to be arrested for the crime." Before he was sworn the coroner also in- formed him, " that there were rumors that his wife came to her death by foul means and that some of these rumors implicated him." He thereupon went upon the stand and testified, and his statements were held competent in evidence against him upon his trial. Teachout v. People, 41 N. Y. 7. Bat where a constable took a man, without a warrant, and charged with the murder of his wife, before a coroner who was holding the inquest, by whom he was sworn and examined as a witness, his statement was held inad- missible on his trial for her murder. People v. McMahon, 15 N. Y. 384. Where the accused has appeared under arrest before the coroner, charged with the crime, and has been treated in every respect as one on his preliminary exami- nation before a magistrate, it therefore appears any state- ment he then makes must be taken without the ad- ministering of an oath, in order to render it available thereafter upon the trial. People v. Mondon, 103 N. Y. 211 ; People v. Martinez, && Cal. 278 ; State v. Garvey, 25 La. Ann. 191 ; People v. McMahon, 15 JST. Y. 384 ; Rex V. Lewis (Eng.), 6 C. & P. 161 ; Rex v. Davis (Eng.), Id. iTT ; Wheiting's Case, 8 Id. 238. Thus, where the defendant was accused of murder in 244 THE COMPETENCY AND EIGHTS OP WITNESSES. the first degree, and before the coroner's inquest requested to make a statement. He had first been informed by that official as to his rights, and that any statement he might make might be used against him. He made a statement, which was reduced to writing, but which he afterwards refused to sign. It was held that such state- ment was admissible against him on his trial for the homicide. People v. Chapleau, 121 N. Y. 266; 30 St. Eep. 989. A confession made under oath, by a person under arrest, is not inadmissible merely because it was made before one who was a coroner, if not made during a judi- cial proceeding. Tlius, where the defendant was in jail under an indictment for murder, and told an official he would like to make a statement. The latter said, that in that case he would send for the coroner to take it. The coroner was summoned to police headquarters where the accused was confined, and took down his statement under oath. It was held that the coroner was merely acting as a clerk or scribe, and that the confession was admissible. People v. McOloin, 91 N. Y. 241. § 97. Judicial confessions. Confessions are also di- vided into judicial and extra-judicial. A judicial confes- sion is one which is made by the accused before a court of competent jurisdiction, and one in which the prose- cution there pending had been properly instituted, and touching which the admission in question is made. In order to render available admissions or confessions made by the accused before a magistrate, the proceed- ings must have been conducted strictly according to law. "When the defendant is brought before a magistrate upon an arrest, either with or without warrant, on a CONFESSIONS. 245 charge of having committed a crime, the magistrate must immediately inform him of the charge against him, and of his right to the aid of counsel in every stage of the proceedings, and before any further proceedings are had." Grim. Code, § 188. See also Matter of Bamscar, 63 How. Pr. 255 ; People v. Mondon, 103 N. Y. 221 ; 4 Or. Rep. 561 ; People v. Palmer, 43 Hun, 407 ; 2 Or. Eep. 106 ; People v. Penhollow, 5 Or. Eep. 41 ; 42 Hun, 103 ; People ex rel. Burgess v. Risley, 66 How. Pr. 67. Where a defendant made a statement before the mag- istrate before whom he was brought, who did not inform him of his rights, the statement was not admitted in evi- dence on his trial. Coffee v. State (Fla.), 6 So. Rep. 493. The magistrate must also " inform the defendant that it is his right to make a statement in relation to the charge against him (stating to him the nature thereof) ; that the statement is designed to enable him, if he sees fit, to answer the charge, and to explain the facts alleged against him ; that he is at liberty to waive making a statement, and that his waiver cannot be used against him upon his trial." Grim. Gode, § 196. It is strictly requisite, in order to constitute the state- ment made by the accused upon his preliminary exam- ination before the magistrate admissible against him, that the magistrate inform him of the fact, that while he was at liberty to make such statement, yet he was not obliged to do so, nor answer any questions, and that a failure on his part so to do would not militate against him. State v. Boric, 74 N. C. 148 ; People v. Kelly, 47 Gal. 125 ; Wilson v. State (Ala.), 4 So. Rep. 383 ; Kirhy v. State (Tex.), 55 St. Rep. 165 ; People v. McMahon, 2 Park (N. Y.), 669, 670 ; Peopley. Hendrich- son, 1 Id. 416 ; State v. Lamb, 28 Mo. 218. Where it does 246 THE COMPETENCY AND EIGHTS OF "WITNESSES. not appear affirmatively that the defendant had been cautioned by the magistrate as required by the Code, it will not be presumed that the magistrate failed in his duty in that respect. People v. Stott, 6 Cr. Eep. 61. § 98. Statement, liow taken. "If the defendant chooses to make a statement, the magistrate must pro- ceed to take it in writing, without oath, and put to the defendant the following questions only : " What is your name and age ? "Where were you born ? "Where do you reside, and how long have you resided there ? "What is your business or profession ? " Give any explanation you may think proper, of the circumstances appearing on the testimony against you, and state any facts which you think will tend to your exculpation." Grim. Code, § 198. Must not be under oath. It is absolutely essential to the competency of the statement as evidence, that it was not taken under oath. People v. Mondon, 103 N. Y. 221 ; 4 Cr. Eep. 561 ; People v. McMahon, 15 N. Y. 384 ; State V. Garvey, 25 La. Ann. 191 ; People v. McMahan, 51 Pa. St. 384 ; State v. Boughton, 1 Ired. (N. C.) 96 ; Walker V. State (Tex.), 13 S. W. Rep. 503 ; Com. v. Harrman, 4 Barr, 269. It has been held, however, that where, during the in- vestigation, the defendant was sworn and testified, the court laboring under the error that the accused was a witness rather than the defendant, and upon discovering the mistake the statement was destroyed, the subse- quent statement which the defendant made before the same magistrate after being properly cautioned by him was allowed in evidence. Bex v. Wehh (Eng.), 4 C. & CONFESSIONS. 247 P. 564. It was also held, where the defendant had tes- tified upon a preliminary examination before the magis- trate who was investigating the crime, and before he had been charged with its commission, that his testi- mony so given could be used against him upon his final trial. Clough v. State, 1 Neb. 320. The English decisions, however, seem to hold directly the contrary. Thus where several persons, among whom was the accused, against whom at that time there was no specific charge, were examined under oath before a committing magistrate in regard to the crime, and he made a statement in common with the others. Subse- quently he was committed for trial by the magistrate, and upon his trial the court refused to allow his state- ment to housed against him. Rex v. Lewis (Eng.), 6 C. & P. 161 ; Beg. v. Whaley, 8 Id. 250 ; Beg. v. Owen, 9 Id. 238. This statement of the defendant must not be con- founded with testimony given upon a trial, for where on a trial the defendant voluntarily goes upon the stand and testifies in his own behalf, the statements thus made, though under oath, are admissible against him. People v. Kelley, 47 Cal. 125 ; Dickerson v. State, 48 Miss. 288 ; Com. V. Clai'k, 130 Pa. St. 641. The disqualification prescribed by the rule only applies to statements which are made during judicial investiga- tions or proceedings, but such a statement is perfectly competent against the defendant, unless both the oath and statement were given upon an examination con- ducted by a magistrate, to investigate the very crime for the commission of which the defendant was at that time charged. People v. McGloin, 1 N. Y. Or. E. 105 ; aff'd 91 N. Y. 211 ; People v. Teachout, 42 Id. 7. 248 THE COMPETENCY AND EIGHTS OF WITNESSES. TJie magistrate must not question the defendant. The Code provides that only those questions therein men- tioned shall be asked tlie defendant, when he desires to make his statement. Those facts which the defendant wishes to state must be allowed to come voluntarily from his lips unprompted or unsuggested by the magistrate. No more than he wishes to state should be forced from him by any in- quisitorial process on the part of the magistrate. Crim. Code, § 198 ; Com. v. Harriman, 4 Barr. 269 ; Wilson V. State (Ala.), 4 So. Eep. 383. § 99. Statement unyailaMe for the defense. The statement which the defendant makes cannot, it seems, be available in his behalf, nor be used on his trial to cor- roborate his testimony there given. Wilson v. State, 2 Swan. 237. The statement may, however, be used upon the de- fendant's trial when an attempt is made to show a vari- ance between his testimony and the statement, and the defendant has also the right to insist upon the whole of the statement being given in evidence, when the prose- cution only seeks, to introduce a portion thereof. U. S. V. Wilson, 1 Bald. T8, 96 ; U. S. v. Barlow, 1 Cranch. C. C. 94 ; U. S. V. Prior, 5 Id. 3T ; William v. State, 39 Ala. 552 ; State v. Isaac, 3 La. Ann. 359 ; Tipton v. State, Peck. (Tenn.), 308 ; Crawford v. State, 4 Coldw. (Tenn.) 190. § 100. When the court holds a preliminary examina- tion to determine competency of confession. Where a confession is offered in evidence, and an objection is made, the duty devolves upon the prosecution of mak- ing preliminary proof as to its voluntary character. Nicholson v. State, 38 Md. 140 ; State v, Garvey, 28 La. CONFESSIONS. 249 Ann. 925 ; Thompson's Case, 20 Gratt. (Va.) 724 ; People V. De Soto, 49 Cal. 69 ; Barnes v. State, 36 Tex. 356 ; People V. Kurtz, 42 Hun, 336. The rule is that before any confession can be received in evidence in a criminal case, the defendant is entitled to show that it was not vol- untary, or was obtained from him through fear or prom- ise of immunity. It is not enough to allow him to make such proof afterwards, and then strike out the confes- sion. People V. Fox, 121 N. Y. 449 ; Amos v. State (Ala.), 3 So. Eep. Y49 ; State v. Kinder, 90 Mo. 548 ; State V. Anderson, Id. 241. This rule does not require such preliminary proof, where no objection is made to the admissibility of the evidence. State v. Davis, 34 La. Ann. 35 ; Eberhart v. State, 4T G-a. 548, 608. Of course if it appears from the evidence itself that the element of any illegal inducement exists, or suspicion aroused as to its voluntary character, the proof necessary to ren- der it competent must be adduced by the prosecution. But where there is nothing on the surface to raise the suspicion that the confession is not the voluntary act of the accused and no objection made, but on the contrary there exists a total absence of all circumstances tending to impart an involuntary character to the confession, it is presumed to be voluntary, and a prima facie case is made out as to the voluntary character of the confession. Hopt V. Utah, 110 U. S. 574, 584 ; State v. Meyers, 99 Mo. 107. But where the defense does offer objections as to its competency, that fact must first be settled by the court on a preliminary examination. Willett v. People, 27 Hun, 469 ; People v. Kurtz, 42 Hun, 335 ; Hector v. State, 2 Mo. 166 ; State v. Patterson, 73 Mo. 695 ; Bufer v. State, 25 Ohio St. 463 ; Simmons y. State, 61 Miss. 243 ; 250 THE COMPETENCY AND EIGHTS OF WITNESSES. Murray v. State (Fla.), 6 So. Eep. 498 ; State v. Monnan, (S. C), 2 S. E. Eep. 621 ; Briscoe t. State (Md.), 8 A. Eep. 571 ; Nolen v. State, 8 Tex. App. 585 ; Brown v. ^'^aife, Tl Ind. 4Y0 ; State v. Konder, 96 Mo. 548 ; CT: iS. v. Stone, 2 Cr. L. Mag. Y69, 794. While the question as to the voluntary character of a confession is for the court, yet where this is a question of fact, depending on conflicting evidence, it should be sub- mitted to the jury. People v. Kurtz, 42 Hun, 336 ; Covi. V. Piper, 120 Mass. 185 ; Com. v. Coffee, 108 Mass. 285 ; People V. Barker (Mich.), 27 N. W. Eep. 539 ; Stallings V. Georgia, 47 Ga. 572 ; Volkavitch v. Com. (Pa.), 12 Atl. Eep. 84. As to whether this examination should take place in the presence and hearing of the jury, the authorities differ. Thus it has been held, that where the defendant so requests, the court should conduct such preliminary examination out of the presence and hearing of the jury. Ellis V. State (Miss.), 3 So. Eep. 188 ; Carter v. State, 37 Tex. 362. Other authorities hold that it may be con- ducted in the jury's hearing. Holsenbake v. State, 45 Ga. 43. Upon the trial of this question, the accused has the same rights as upon the trial of any other issue, and he is entitled to offer any evidence to show by what illegal inducements his confession was obtained. People v. Fox, 50 Hun (N. Y.), 604 ; State v. Kinder, 96 Mo. 548 ; Com. V. Culver, 126 Mass. 464 ; Brown v. State, 70 Ind. 576. Thus, where the judge held a preliminary exam- ination to determine this question, and excluded testi- mony offered by the defendant to prove that his confes- sion was obtained through fear and compulsion, it was held to be reversible error. State v. Kinder, 96 Mo. CONFESSIONS. 251 548. It has been also held that the testimony of the defendant, showing the illegal character of the confes- sion upon which he bases his objection to its admission in evidence, should be offered while that issue is pending, and if not given before his testifying in his own behalf before the jury, it affords no ground for excluding the admissions. State v. Rush, 95 Mo. 199. This, however, does not appear to be the general practice, but on the contrary it is held, that if at any time during the trial it appears that the confession was obtained by the induce- ments which the law declares renders a confession inad- missible, the court will, on motion, strike it from the case. Boh v. State, 32 Ala. 560 ; Metzger v. State, 18 Tla. 491 ; Ellis v. State (Miss.), 3 So. Eep. 188. Upon this preliminary examination, the counsel for the defendant may also cross-examine the witness, or he may cross-examine a witness who is about to detail the confession, in advance. Where the court has admitted the confession in evi- dence, either party is entitled to introduce all the evi- dence submitted to the court on the preliminary exam- ination as to its admissibility, and also every other circumstance may be shown pertinent to the issue, or relating to the weight or credit to be given to the con- fession, and if at any time before the close of the case, it should be shown that the confession was obtained in such a manner, or under such circumstances as to render it incompetent, it must be excluded. Ellis v. State (Miss.), 3 So. Eep. 188. Where the accused has made several distinct confessions, at different times, the state cannot be required to prove that the first was voluntary, before interrogating witnesses as to the others. State v. Wash- ington (La.), 4 So. Eep. 864. 252 THE COMPETENCY AND EIGHTS OF WITNESSES. However, where confessions are shown to have been obtained through improper influence, such influences will be presumed to enter into and give color to all sub- sequent confessions, unless the contrary is clearly shown. Murray v. State (Fla.), 6 So. Eep. 498 ; Barnes v. State, 36 Tex. 266 ; State v. Drahe, 82 JST. C. 592 ; State v. Brown, T3 Mo. 631. It has been held that it may be shown that the con- fession is competent, from the fact that the original im- proper influence used had ceased to exist at the time, either by lapse of time or other circumstances. U. S. v. Warden, 4 Mack. (U. S.), 503 ; State v. Guild, 5 Halst. (N. J.) 163. INDEX. PAQB ACCOMPLICE— definition of 58-60 as a witness 48-50 privileges of . . , 49, 51 cross-examination of 50-51 must be corroborated 51-54 extent of corroboration 54-58 decoys, detectives and spies are not 60 ACCUSATIONS— v^itness cannot be cross-examined as to 31 ACTIONS— by heirs , 80, 100 against heirs 128 by assignee of executor 106 by creditors 75, 107 against creditors 76 by devisee 128 against devisee 104 by attorney for services to deceased 110, 125 against administrator 66, 111 by administrator on behalf of creditors 128 by administrator to recover gifts causa mortis 131 by same to recover gifts inter vivos 131 by executors against creditors 75, 76 by executors against lessees 73, f4 by executors to foreclose a mortgage 85, 86 by executors on notes 93 by executor to recover goods claimed as a gift 101 by executors against executors of a firm 92 against executors on a note 90, 93 against executor of deceased partner 94 against executor for services to deceased 109, 113 253 254 INDEX. PAGE ACTIONS— Continued. against executors of firm 93 against executor in individual capacity 102 by mortgagee 130 by lessees against executor 73, 74 by one deriving title or interest 135 on promissory notes 89, 130 by a survivor against or joint maker , 87-94 to avoid a deed 103 against corporations 103 on an insurance policy 106 husband and wife for or against the other 205 same for divorce 206 by husband for crim. eon 208 criminal cases by husband or wife 309 witness in, for illegal sale of thing in action 38 by partners against executors of a firm 93 between personal representatives of deceased partners 98 by personal representatives of partners on a note 130 against partners on a note 89 by surviving partner 94 against survivor 95 ADMINISTRATION. (See Administrator.) ADMINISTRATOR. (See Executor.) statute affecting 66 who cannot testify against 66 when examined in own behalf 66 when declarations of, not evidence 73 cannot testify to his own claim against estate 76 testimony against, in action on notes 88 testimony of, in action on notes 89, 180 effect of cross-examination by his attorney of an adverse witness 102 may testify to physical condition and appearance of deceased 105 admissions by 107 action against Ill cannot testify to conversations had before his appointment . 119 evidence as to his alleged intestate being alive 120 trustees cannot testify against , 119 INDEX. 255 PAGE MlMmiSTRATOn— Continued. restrictions upon 131 claim against one claiming by gift 131 claim for services on his accounting 133 action against one " deriving title or interest " 135 cannot avail of the statute when 136 regarding declarations of deceased 137 when his evidence restores competency 157 when it does not have that eSect 158 AGENT— when does not come within the statute 84 rule regarding a deceased 84 may avail himself of statute, when 84 when present at conversation with deceased 134 conversation betweeen his principal and deceased 137 communications to, when privileged 167 APPEASANCE— of deceased, when cannot be shown 80, 105 when administrator may testify to 105 ARREST— witness cannot be examined as to 31 statements made while under 337 before coroner, while under 341 before magistrates, while under 344 statement, how made 346 ASSIGNEE— of executor, actions by 106 of deceased, actions by 107 of devisee 138 of mortgagee 130 ATTORNEY— when statute does not apply to 67 when statute does apply to 68 actions by, for legal services to deceased 110 lien for costs does not disqualify 123 nor being an executor 133 256 INDEX. PAGE ATTORNEY— Coraimwed. in action for service cannot testify to conversation of de- ceased and third parties in his presence 125 communications to, privileged 165, 170 ■what communications are not 174 what relations must exist 167 cessation of relations 168 objection to testimony of 169 who decides relationship and privilege 170 on probate of will 178 waiver of privilege 179 stenographer witliin statute 165 law clerk of, within the statute 167 law student of 167 ATTORNEY'S CLERK— cannot divulge communications 165, 166 ATTORNEY'S STENOGRAPHER— cannot divulge communications 165 BANKING CORPORATION— section does not apply to stockholder of 66 nor to oflScer 66 BEHALF— a defendant may testify 41, 128 a co-plaintiff or co-defendant 130 testimony in, defined 128 effect of 129 when competent 134 rule as to extraneous facts 142 claimant against estate 106 of administrator 76 of executor 102, 106, 109, 118 BENEFICIARIES— incompetent as witnesses 77, 78 when competent 161 release of interest 161 BOOKS OF ACCOUNT— are competent evidence 116 INDEX. 257 PAQE BOOKS ON ACCOV^T— Continued. how proved « . 116 entries in 117 BRIBERY— witness must testify to 38 CHILD— as witness 13 CLERGYMEN— communications to, privileged 197 CLAIMS AGAINST THE ESTATE. (See Disputed Claims.) when claimant may testify on accounting 106 bill for, to be scrutinized 107 for services 109 by administrator, on his accounting 133 by executor 109 testimony as to value of services Ill, 113 what conversations incompetent 119 declarations of deceased 137 testimony affirming or negativing 139 exceptions to rule 141 CLERK— attorney's, cannot testify to communications 165, 166 CLIENT. (See Attoenby.) CO-DEFENDANT. competent as a witness 48 testimony in behalf of 130 CODICIL. (See Proceedings under the Will.) CO-PLAINTIFF— testimony in behalf of 130 COMMITTEE— of lunatic 66 COMPETENCY OF WITNESS. (See Witness.) CONFESSIONS— statute regulating 311 must be corroborated 311 17 258 INDEX. PAGK CONFESSIONS— Coretotted. preliminary 311 by member of an aggregate corporation 212 knowledge of language requisite 213 weight of 216 weight of, for jury 216 identity of declarant necessary 217 must be voluntary 217 induced by threats or compulsion 320 illustrations 333 threats or promises made Indirectly 225 induced by promise of reward or favor, or given under stipu- lation 226 of guilt of other than the crime charged under inducements as to the latter 331 inducements by one in authority , 282 made under duress 233 induced by artifice or fraud 285 made while under arrest 287 made before coroner 241 judicial 244 how taken. . . 246 unavailable for defence 248 where court holds preliminary examination to determine competency 346 COMMUNICATIONS. (See Conversations; Privileged Com- munications ; Personal Transactions.) CONFIDENTIAL COMMUNICATIONS. (See Husband and Wife ; Communications.) CONVERSATIONS. (See PEmLEGED Communications.) with deceased, when incompetent 66, 75, 118 when competent 130 legatees cannot testify to 77, 78, 118 when competent 157, 161 beneficiaries incompetent 77, 78 when competent 161 heirs and next of kin incompetent 79, 80 with agent of deceased 84 INDEX. 259 PAGE CONVERSATIONS— CoMimteed. when agent may give 84 servivor or joint maker of note 87-94 definition of 118 against interest competent 123 as to gifts inter vivos 100, 103, 104 as to gifts causa mortis 101, 108, 115, 116, 136 in presence of third party 123-137 in other than probate proceedings 127 in probate proceedings 123 by one deriving title or interest 133 relates to negative and affirmative 138 exceptions to rule 141 indirect evidence of 143 CONTESTANTS OF WILL— " derive title or interest " under the statute 138 CONVICT— as witness 27-29 character, how proved 29-31 must be a criminal conviction 30 arrests not meant 31 accusations not meant 31 indictments not meant 31 CO-OFFENDER— a competent witness 48 CORPORATION— statute does not apply to stockholder of banking 66 nor to officer thereof 66 actions against 103 admissions by members of aggregate 213 CORONER— statement of accused before 241 COUNSELOR. (See Attorney.) COURT— prescribes mode of taking oath 4 may inquire as to belief of witness 5 decides competency of witness 7 260 INDEX. PAGE COURT— Continued. decides competency of infants 14, 18-30 powers of , in 18 instructions to infant by 19, 30 decides privilege of witness as to disparaging and criminat- ing questions 33 powers over cross-examination 46, 48 decides competency of witness 154 motion to, to strike out testimony 154, 155 objection must be made at trial 155 decides privileged communications 170 when, holds preliminary examination to determine compe- tency of confession 248 CREDITORS— when, cannot object to an allowance of claims by executors. 75 when competent to testify in action by 75 in action against 76 in action by administrator in behalf of 128 CRIMINAL ACTIONS— husband and wife competent for or against each other 208 CRIMINATING QUESTIONS. (See Disparaging Questions.) CRIMINAL CONVERSATION— husband and wife as witnesses 308 CROSS-EXAMINATION— of witness charged with lack of religious belief 24 cannot cross-examine infant, when 40 power of court over 46, 48 as to disparaging questions 32-36, 38 of defendant 43, 44 wide range of 44-46 of accomplice 50, 51 by attorney for administrator or executor 103 DEAF AND DUMB. (See Witness.) DEATH— of party since trial, testimony how used 161 of all parties does not render evidence competent 106 INDEX. 261 PAGE DECEASED— what is, under the statute 68 witness in former trial, testimony of 161 when his physical condition cannot be shown 80, 105 claim against estate of 106-119 transactions with 97-109 conversations with -. . . .67, 75, 118, 120, 123 between, and third persons 122 gifts by 101-116 conversation with, by one deriving title or interest 133 DECEDENT. (See Deceased.) books of account of , 116 entries in 117 declarations of 109, 136, 137 DECLARATIONS. (See also Confessions.) of intestate regarding disputed claim 109 effect of, generally 136 as to value or amount of his estate 137 DECOYS— are not accomplices 60, 64 DEFENDANT— as a witness 41-43 disparaging and incriminating questions 32-37 failure to testify 42 effect of testifying 43 credit of, for jury 43 cross-examination of 43, 44 wide range given on 44-46 effect of failure to call witness 44 effect of failure to call accomplice or co-defendant 44 failure to give evidence of good character 44 powers of court over cross-examination of 46, 48 accomplice as witness for or against 48-50 cross-examination of 50, 51 must be corroborated 51-54 intent of corroboration 54-58 definition of 58-60 decoys, detectives, spies 60, 64 262 INDEX. PAGB DEFENDANT— Continued. not rendered competent by testimony of surviving partner. . 95, 96, 97, 158 when he has been cross-examined by other side 102 in action to avoid a deed 103 evidence of admission by 103 as to gifts 100-103 in actions against corporations 108 plaintiff's presence at time of the conversation with deceased, effect of 119 examination of executor, effect of 129 when called by a plaintiff claiming through 139 when rendered competent by the testimony of an executor or administrator 156 when the effect is otherwise 158, 159 effect of proof by competent third party 159 cannot avail himself of his statement before magistrate 248 how may be used 248 DERIVING TITLE AND INTEREST— incompetency of person 66 definition of 132 contestants are 133 DEVISEE— is an interested person 68 witness in action against 104 cannot testify to physical condition of deceased 105 DETECTIVES— are not accomplices 60, 64 DISPARAGING AND INCRIMINATING QUESTIONS— allowanceof 22-36, 38 exemption from answering 32 need not give reason for refusal 37 when must answer 32-35 when may waive exemption 35 when deemed waived 35, 36 court decides privilege 33 when crime barred by statute of limitations 38 INDEX. 263 PAGE DISPARAGING AND INCRIMINATING QUESTIONS— CoKfrnwed. illustrations of oases 38 when, tends to degrade or disgrace 36. 1 "' who judges of effect 37 DISPUTED CLAIMIS. (See also Claims Against Estate.) competency of witness thereon 69 incompetency thereon 69, 92, 99 claims for services 109 DONEE— when assignee of 93 when not disqualified 93,100, 114 DOWER— when interest in disqualifies 120 DRUGS— when disqualified 100, 103, 104 over-indulgence in, by witness 27 DUELLING— witness must testify thereto 39 EXAMINATION— testimony of party dying before trial 161 EXECUTOR. (See Administrator.) statute affecting 66 who cannot testify against 66 effect of testimony in own behalf 66 when cannot testify against an heir 73 declarations of, when not evidence 73 lessees in actions against 73, 74 when cannot testify before suiTogate 75 when creditors cannot object to allowance of claim by 75 in actions against creditors 75, 76 legatee cannot testify against, when 77 is not interested within the statute 80 entitled to commission does not make interested 150 action by, to foreclose mortgage 85, 86 actions against, on note 90, 93 actions by, on note 93 264 INDEX. PAQB EXECUTOR— aonimwed. action against executor of deceased partner 94 actions by, to recover goods claimed as gift 101 sued in individual capacity 103 his accounting 106 his claim for services to deceased 109 action against, for services to deceased 109 action against, for board and services 113 effect of exhibiting books of account of deceased Il8 his own books, when excluded 118 may testify in behalf of personal representatives 131 also prove execution of will 131 settling accounts of deceased 139 effect of his testifying on adverse party 66, 139 when does not restore competency 139 restrictions relating to proceedings by 131 cannot invoke the statute, when 136 not chargeable with value or amount of deceased's estate by latter's declarations 137 negative or affirmative averments 138 exceptions to rule 141 cannot testify to contents of will when 150 surety on bond of , interested under the statute 156 when evidence restores competency 66, 157 when does not have that effect 158 FOEMEE ATTOENEY— communications to, privileged 168 FOEMEE CONVICTION— does not disqualify a witness 87, — S9 GAMING— witness must testify to 39 GIFTS CAUSA MOETIS— conversations to prove 101 evidence to support 101, 103 w^ho can make 115 are revocable 115 INDEX. 265 PAGE GIFTS CAUSA UOnTIS— Continued. what constitutes 116 actions by administrators to recover 131 actions by executors to recover 101 eflfect of declarations of deceased 137 GIFTS INTER VIVOS— competency of testimony to support 100, 108, 104 Incompetency of 100 what constitutes 113 how supported 114 illustrations 114 actions by administrators to recover 131 actions by executors to recover 101 evidence of person through whom title is claimed 135 effect of declarations of deceased 137 HEIRS— are interested within the statute 68 when cannot testify 79, 80 when can 78-81, 120 in actions brought by 100 testimony against 137 executors may testify in behalf of 131 cannot testify against 73 in actions against 138 HUSBAND— inventory of his estate, when not competent 75 when next of kin 79 when cannot testify 74 when can 81, 82, 133 when joining with wife in mortgage 86 promissory note made to wife 88 to suing note in wife's possession 90 to wife's claim for services 112 may testify to his claim against the estate of his wife, when 143, 146 testimony of deceased mdy be used , i 162 266 INDEX. PAGB HUSBAND AND WIFE— preliminary 199 confidential communications of 200 what are 200 what are not 203 may testify for or against each other 205 in actions for divorce 206 in actions for crim. con 208 in criminal cases 208 crimes committed against the other 209 IDIOTS— as witnesses 8, 13 ILLEGAL SALE OF CHOSE IN ACTION— witness must testify to 38 INCIDENTS OF A TRANSACTION 144 INDICTMENTS— witness cannot be asked as to 31 INFAMOUS PERSON. (See Convict.) INDEPENDENT FACTS— statute governing 146 INDIRECT EVIDENCE— prohibited 143 INFANT— when need not be sworn 12 as a witness 13 over fourteen years of age, effect of 14 under that age, presumption as to 14 under seven 18 true test of competency of 14^ 18 the Court decides competency 18- 20 how determined 19, 20 instructions to, by court 19 INSANE. (See Monomania.) when incompetent as witnesses 8 when are competent 9 when becomes so since last trial.: 161 INDEX. 267 PAGE INSURANCE POLICY— action on 106 INTEREST— successor in 66 what does not disqualify witness 66, 80 what does disqualify 68, 80 does not prevent proof of loss in action on insurance policy. 106 when lack of, does not render competent 126 INTERESTED PERSONS— who are 68, 156 cannot testify, when 68, 80 when may testify. 80 as to physical condition of deceased 104, 105 as to personal appearance of 105 when not yet excluded 126 in other than prohate cases 127 to negative or affirmative 138 exceptions to rule 141 cannot give indirect evidence , 143 as to incidents of a transaction 144 as to independent facts 146 when competency is restored 157 when not restored 158 effect of evidence of 158 evidence of third party 159 effect of cross-examination of 160 INTERPRETER— communications to, privileged 167 INTERLOCUTORY PROCEEDINGS— not within the statute 66 INTOXICATING LIQUORS— over-indulgence of witness in 37 INQUISITION OF LUNACY— effect of, on witness 13 LEGATEES— are interested persons 68 268 INDEX. PAGE LEGATEES— Continued. when incompetent 77, 125 cannot testify to physical condition of deceased 80, 105 effect on, by executor introducing books of account 118 standing on probate of will 136, 148, 149 when interest released 157, 161 LIFE INSURANCE POLICY— proof of loss in action on, when competent 106 LIQUORS— over-indulgence of witness in 37 LUNATICS— as witnesses 8-13 effect of inquisition of 13 lucid intervals 13 monomania 10 committee of, under section 839 of Code 66 MAKER OF NOTE. (See Peomissoky Notes.) MARITAL RELATIONS. (See Husband and Wife.) MARRIAGE. (See Husbajmd and Wife.) MENTAL CONDITION— of deceased, beneficiary cannot show 80, 105 when physician cannot show 191 MONOMANIA— effect of, on competency of witness 10 MORTGAGEES AND MORTGAGORS— when within the statute 85, 86 when competent 85, 86 as to transactions with deceased 130 MOTIONS— not within the statute 66 to strike out incompetent testimony 154, 155 NARCOTICS— over-indulgence in, by witness, effect of 37 INDEX. 269 NEGATIVE AND AFFIRMATIVE— prohibition of statute includes 138 exceptions to rule 141 ISTEXT OF KIN— when incompetent as witnesses 79 husband is, of wife .' 79 NOTES. (See Promissory Notes.) OATH— witness must ta,ke 3 infant need not, when 3 definition of 3 mode of taking 3, 4 on the Gospels 4 power of court to prescribe 4 statute regarding 4 when witness has no religious belief 4 witness may be asked as to the peculiar ceremonies of, he considers binding 5 irregularly administered 5 OBJECTIONS— to competency of witness 151 must not be too general 153 m.ust be made promptly 154 need not be renewed 154 unless made in trial unavailable on appeal 155 cross-examination does not waive right of 156 testimony of physicians in probate proceedings 193, 193 OFFICER- of banking corporation, without the statute 66 PARTITION SUIT— executors cannot testify for heirs in 73 what communications in, excluded 119 PARTNERS- evidence in against, on promissory note 89 actions by, against executors of a firm 93 270 INDEX. PASE PARTNERS— CoTifmwed. one, is a " survivor " v^ithin the statute 94 one holding himself out as such vrithin the statute 94 actions by survivors 94 actions against survivor 95 testimony of executor of, effect of 96 actions against deceased 94 actions between representatives of deceased 95 testimony of survivor does not render adverse party com- petent , .. ., 158 PARTNERSHIPS. (See Pabtnees.) PATIENT— may waive privilege as to physician 193 PERJURY— effect of conviction of, on witness 40 PERSON IN INTEREST. (See Interested Persons.) PERSONAL REPRESENTATIVES— actions by, on promissory notes 88, 130 actions between, of deceased partners 95 executors may testify in favor of 131 may waive privileges 179, 193, 193 PERSONAL TRANSACTIONS— defined 97 illustrations 98 claims against estate 109 include the negative and affirmative 138 exceptions to rule 141 include indirect evidence 143 incidents of 144 independent facts 146 in proceedings under the will 148 PENITENT— communications to clergymen privileged 197 may waive 198 INDEX. 271 PAGE PHYSICAL CONDITION— of deceased, when cannot be shown 104, 105, 110 administrator may testify to 105 PHYSICIAN— cannot show professional treatment 110 can testify in favor of nurse for services 110 entries in books of account of 117 diary as evidence 117 register of 118 communications to, privileged 182 what are privileged 189 what are not 186 in probate proceedings 191 as to testimony tending to disgrace memory of the deceased. 193 cannot show mental condition of deceased 191 objection to testimony of 192 waiver of privilege 193 PRELIMINARY 1 PRIVILEGED COMMUNICATIONS. (See also Husband and Wife ; Physicians ; Cleegymen.) preliminary 164 to an interpreter 167 to a stenographer 165 to an attorney 165 to an attorney's clerk 165, 166 to law student 167 to one not licensed 167 what relations must exist 167 cessation of relations 168 who decides relationship and privilege 170 what are hot privileged 174 what are 170 on probate of will 178 waiver 179 PROBATE PROCEEDINGS. (See Peocbedings under the Will.) PROCEEDINGS UNDER THE WILL— subscribing witness to, or codicil 104 272 INDEX. PAGE PROCEEDINGS UNDER THE y^ILL— Continued. executor may prove execution of 121 conversation with deceased excluded 118 between deceased and third parties 133 legatee incompetent to testify to 126 contestants " derive title and interest " 133 prohibitions apply to executor 148 who cannot testify 148 legatees 149 when interest released 151 attorneys 178 waiver 179 physicians 191 relationship decided by court 170 communications to physicians 182 what are privileged 186 what are not 189 in probate proceedings 191 objections to testimony 192 waiver 193 communications to clergymen 197 PROFESSIONAL COMMUNICATIONS. (See Attorney ; Physi- cian ; Clergyman.) PROMISSORY NOTES— survivors or joint makers incompetent 87 actions on 89, 130 when not incompetent 130 actions on, by executors 93 actions on, against executors 90, 93 actions by survivor or joint maker 87-94 actions on, by personal representatives of partners, are 130 PROOFS OF Less- en insurance policy, competent 106 PUBLIC PEACE— witness must testify to crimes against 40 RELEASE OF INTEREST— of legatee, eflEeot of 161 INDEX. 273 page: EELIGIOUS BELIEF- of witness 20 defect of 30-33 true test of 31-33 unbelief, how proved 38-35 REPLEVIN SUIT— evidence in lOO EENEWAL OF OBJECTION— when not required 134 SECTION 838 OF THE CODE 66 SECTION 395, CRIMINAL CODE 313 SECTION 829 OF THE CODE OF PROCEDURE 66-161 application of 66-68 applies to Surrogate Courts 67 to matters of probate 67 not to motions or interlocutory proceedings 66 to examinations under sections 8706, 2710 of the Code 68 does not apply to a stockholder or officer of banking corpora- tion 66 application of 67 interest that disqualifies 68 interest that does not 80 mortgagors and mortgagees 85 to survivors 66 committee of lunatics 66 parties in interest 66 administrators 66 executors 66 promissory notes 87 partnerships 94 personal transactions 97 as to gifts 101 , 103 gifts inter vivos 113 gifts causa mortis 115 claims against estate 109 books of account 116 incompetent conversations under 118 18 274 INDEX. PASS SECTION 829 OF THE CODE OF PROCEDURE— Confmwd. competent conversations 120 conversations between deceased and third parties 182 rule in other than probate cases 137 testimony in own behalf 128 in behalf of co-plaintiff 130 in behalf of co-defendant 130 in administration 131 deriving title or interest 66, 182 declarations of deceased 136 negative and affirmative 138 exceptions to i-ule 141 indirect evidence 143 incidents of a transaction 144 independent facts 146 proceedings under the will 148 legatees as witnesses 149-151 objections to incompetency of witness 151 must be taken when 154 need not be renewed 154 if not taken at trial, effect of 155 cross-examination no waiver 156 competency restored 157 when not restored 158 testimony by competent third person or disinterested witness 159 effect of cross-examination 160 SECTION 830 OF THE CODE OF PROCEDURE 161, 162 must have been parties before 162 must have been cross-examined 162 SECTION 831 OF THE CODE OF PROCEDURE 199-209 SECTION 832 OF THE CODE OF PROCEDURE 37-39 SECTION 833 OF THE CODE OF PROCEDURE 197 SECTION 834 OF THE CODE OF PROCEDURE 183 SECTION 835 OF THE CODE OF PROCEDURE 165 SECTION 886 OF THE CODE OF PROCEDURE. . . .179, 181, 193, 198 SECTION 837 OF THE CODE OF PROCEDURE 82, 88 INDEX. 275 PAGE SECTION 839 OF THE CODE OF PROCEDURE 312 SECTION S706 OF THE CODE OF PROCEDURE— statute applies to 68 SECTION 3710 OF THE CODE OF PROCEDURE— statute applies to 68 SERVICES. (See Claims against Estate.) STATEMENT— of accused before coroner 341 before magistrate 344 how taken 246 STENOGRAPHER— when cannot divulge communications 165 STIPULATION— confession under 236 evidence given under 336 STOCKHOLDER— of banking corporation without the statute 66 statute strictly construed thereto 77 of aggregate, admissions by 313 SPIES— are not accomplices 60 SUBSCRIBING WITNESS— where cannot testify to execution of the wiE 149 attorney, when can 181 SUCCESSOR IN INTEREST— statute regarding 66 SURETY— on bond of non-resident executor, interested 156 SURVIVOR— when a partner is 94 ostensible partner is 94 witness against, incompetent 66, 95 actions against 95 testimony of 96 effect of in own behalf 66 276 INDEX. FAOB TESTIMONY IN OWN BEHALF— by defendant 42, 43 defined 138 effect of 139 when competent 134 as to extraneous facts 143 an executor on his accounting 106 THIRD PERSONS— between deceased and 133-137 in otlier than probate cases 137 heard by agents 167 heard by interpreters 167 where others overhear attorney and client 167 of disinterested witness 159 of a competent 159 between deceased and his wife 150 executor cannot testify as to declarations of deceased as to, in sustaining his payment of claim of 75 TITLE— deriving interest or 66 defined 132 one claiming under deceased 80 TRANSACTIONS. (See Peesonal Transactions.) TRIAL COURT. (See Court.) TRUSTEES— of religious or charitable corporations are not within the statute 73 general, are within 73, 119 in actions by, when husband competent 122 WAIVER— of privileged communications by client 179 one of several clients 181 by patient 193 by penitent 198 as to disparaging questions 85, 193 by parties in interest 198 by widow 198 INDEX. 277 PAGS -WAlVEB^Continued. by personal representatives 179, 191, 193 by executors 193 husband 193 by any heirs at law 193 by next of kin 193 when testator has waived 181 WIDOW— when incompetent as a witness 69, 70 when cannot testify to her marriage 74 when is competent 71, 81, 82, 100, 135 as to gifts to, by deceased 100 as to gifts causa mortis 101 against heirs in action to set aside deed 100 when amanuensis of deceased 107 when interpreter for deceased 150 dower interest disqualifies 130 on reference of her claim 144 when entitled to inchoate right of dower 151 when testimony of deceased husband to be used 163 WIFE. (See Husband and Wife.) when incompetent as a witness 134, 136 when competent 133 of son of deceased competent 151 WILL. (See Proceedings under the Will.) WITNESS— oath of 3 how taken 3 general competency of 5, 7 incompetency in general 7 idiots as 8-13 infancy, effect of 3-13, 30 lunatics as 8 monomania, effect of 10 interest does not disqualify 66 incompetency must be objected to 5, 6 competency for trial court 7 incapacity of 33 278 INDEX. PAGB WIT'NESa— Continued. when imknowB 5 defect of religious belief 30-33 true test of 31 how proved 23-35 physical incapacity of 25 deaf and dumb as 35, 26 weakness of memory of 26 indulgence in drugs by 37 liquors 27 convict or infamous person 37-39 how conviction shown 29-31 must be a criminal conviction 30 in another state, effect of 30 arrests and accusations not competent 31 nor indictments 31 disparaging and criminating questions 32 exemption from answering 32, 38 when not exempt 33 court decides privilege 33, 37 is personal to 34, 35, 37 need not give reason for refusal 37 prosecutor cannot avail of it 34 his counsel may 34 may waive 35 when privilege deemed waived 35, 36 when crime barred by limitation 38 illustration of cases 36 questions tending to degrade or disgrace 36 who judges of the effect 37 as to illegal sale of thing in action 38 as to bribery 38 dueUing 39 gaming 39 crimes against public peace 40 defendant as 41-43 failure to testify 48 effect of testifying 43 credit for jury 43 INDEX. 279 PAGE WITNESS— Conhmwed. cross-examination of 43, 44 wide range allowed , 44-4& effect of defendant's failui-e to call 44 failure to call accomplice 44 failure to call as to good character 44 power of court over cross-examiuation of 46-48 accomplice as 48-50 definition of 58-60 cross-examination of 50, 51 must be corroborated 51-54 extent of corroboration 54-58 decoys, detectives, spies 60-64 under section 839 66-161 preliminary 65 the section 66 executor under 66 administrator under 68 cominittee of lunatic 66 survivor 66 application of section 66-68 interest that disqualifies 68-80 illustrations .69-79 must be a fixed interest 70, 71 period of acquiring immaterial 70 a possible interest, effect of 71 stockholder or officer of banking corporation 77 trustees within statute 72, 119 of charitable and religious corporations are not within 73 legatees, when incompetent 77-78 heirs and next of kin 78-80 interest that does not disqualify 80-83 agents 83, 84 mortgagors and mortgagees 85-87 regarding promissory notes 87-94 partners and partnerships 94 personal representatives of partners 95 survivor of partners 94, 66 in disputed claims 69, 93, 99, 100 280 INDEX. PAGE WITNESS— Continued. widow as. (See Widow.) wife as. (See Wipe.) as to gifts 100, 101 in replevin suit 100 after cross-examination 103 in actions against corporations 103 against devisee 104 subscribing witness to will or codicil 104 as to physical condition or appearance of deceased 105 executor upon his accounting 106 as to declarations of deceased to sustain payment of claim. . . 75 in action for trespass quare clausum 106 as to proof of loss on policy of insurance 106 by assignee of executor 106 in actions brought by administrators 107 by assignee of plaintiff 107 when one defendant alive 107 after death of, before trial , 107 in claim for conversion 108 by one heir against another 108 in injectment 108 claim against estate 109 claim for services 109 as to gifts inter vivos 113 gifts causa mortis 115, I2g books of accounts 116 what conversations excluded 118 what competent 130 conversation against interest 132 between deceased and third parties 123, 127 in other than probate cases 127 heard by agents 167 by interpreters 167 when others overhear attorney and client 167 disinterested witness, as to 159 of a competent third person, as to 159 deceased and wife 150 in partition j35 INDEX. 281 PAGE WITNESS— Continued. testimony in own behalf 138 in behalf of co-plaintiflE or defendant 130 in proceedings relating to executors and administrators 131 deriving title or interest 133 declarations of deceased 75, 136 negative and affirmative 138 exceptions to rule 141 indirect evidence 143 incidents of a transaction 144 independent facts 146 proceedings under the veill 148 legatees as 149 when subscribing witness incompetent as to execution of will 149 release of interest 151, 161 objections to competency 151 must be made on trial 155 cross-examination no waiver of objection 156 competency restored 159 when not 158 effect of cross-examination 160 under section 830 161 privileged communications 164 what are 170 what are not 174 communications to an attorney 165 what relations must exist 167 cessation of 168 objections to testimony of 169 who decides privilege and relationship 170 on probate of will waiver of privilege 179 when attorney subscribing witness 181 communications to an attorney's clerk 165, 166 to a stenographer 165 law student 167 agent 167 interpreter 167 to physicians 182 what are privileged 186 282 INDEX. PAGE WITNESS— Continued. what are not 189 physician in probate proceedings 191 objections to his testimony 193 questions tending to disgrace memory of deceased 193 who may waive 193 communications to clergymen 197 waiver 198 husband and wife 199 what are confidential communications 200 what are not 203 for or against the other 305 in actions for divorce 206 crim. con ; 208 criminal cases 808 crimes against each other 309 confessions 211 by member aggregate coi-poration 212 knowledge of language requisite 313 weight of confession 318 for jury 216 identity of declarant 217 confession must be voluntary 217 induced by threats or compulsion 220 illustrations 332 indirect threats or promises 335 by promise of reward or favor 326 or under a stipulation 336 of guilt other than the crime charged, made under in- ducements as to the latter 331 inducements by one in authority 332 made under duress 233 induced by artifice or fraud 235 while under arrest 337 before coroner 241 judicial 244 statement, how taken 246 unavailable for defence 248 court may hold preliminary examination to determine competency of 248 J^f*