FERTILIZER Co. v. RIPPY. cial powers of government ought to be forever separate and distinct from each other." Yet Articles XIII, XIV and XV provided that the Legislature should, by joint ballot, elect the Governor, and appoint Judges of the Supreme Courts of Law and Equity, Judges of Admiralty, Attorney General, Generals and field officers in the militia, and all officers of the regular army of this State. The Governor continued to be elected by the Legislature until the Convention of 1835, and the Judges until the Constitution of 1868. It is thus clear that the power of appointment was not regarded as exclusively an executive prerogative. The judgment of the Court below is therefore affirmed. CHARLOTTE OIL and FERTILIZER CO. v. J. P. RIPPY, Administrator of William Rippy. (Decided May 9, 1899). Petition to Rehear-Evidence Under Section 590 of The Code-Transactions and Communications With Deceased Persons by Parties to the Action, or Persons Interested in the Event. 1. Before the adoption of The Code, a person interested in the event of the action could not be a witness. This rule is now restricted to parties or persons falling within the exceptions contained in Section 590. 2. In an action upon a firm promissory note against the administrator of an alleged deceased member thereof, evidence by one of the partners, offered by plaintiff, that the deceased was a member of the firm is inadmissible under Section 590, because the witness is interested in the event of the action, although not a party thereto. FERTILIZER Co. v. RIPPY. PETITION TO REHEAR. This cause decided at September Term, 1898, and reported in 123 N. C., 656. Messrs. Burwel!, Walker & Cansler, for petitioners. FURCHES, J. This case was before the Court a year ago, and is reported in 123 N. C., 656, and is before us now upon plaintiff's petition to rehear. The action is upon a promissory note, made payable to the plaintff, executed by D. F. Bridges on the 15th of November, 1894, for the sum of $430, signed "D. F. Bridges & Co." The action is brought against J. P. Rippy, administrator of William Rippy alone, and the allegation of plaintiff is that, at the date of the note, there was a copartnership existing and doing business in Cleveland County under the firm name and style of "D. F. Bridges & Co.," composed of D. F. Bridges and William Rippy, the intestate of defendant; that William Rippy has since died, and defendant is his personal representative. The defendant answers and denies that his intestate, William Rippy, was a member of said partnership, if any such partnership ever existed. On the trial the plaintiff introduced D. F. Bridges as a witness for the purpose of proving that there was such a partnership as "D. F. Bridges & Co.," and to prove that William Rippy, defendant's intestate, was a member of said partnership at the time the note sued on was given. This evidence was objected to by defendant under Section 590 of The Code, and excluded by the Court. The correctness of this ruling is the only question presented by the petition to rehear. And owing to the fact that when the case was here before, the Court held that plaintiff was entitled to the evi FERTILIZER Co. v. RIPPY. dence, if the witness knew the fact outside of any 'transaction or communcation' with the deceased, so this petition must be treated and considered as asking the Court to say that D. F. Bridges is a competent witness to prove communications and transactions he may have had with defendant's intestate. The question presented is not free from difficulty. It again brings before the Court for construction that much construed Section, 590, of The Code, and, the great number of constructions it has received, does not relieve the question of embarrassment. Section 589 of The Code, does away with all disabilities on account of interest. But this Section is immediately followed by 590, which contains the following: That "a party or a person interested in the event of the action shall not be examined as a witness in his own behalf or interest. ... against any executor, administrator, or survivor of a deceased person....concerning a personal transaction or communication between the witness and the deceased person or lunatic, except where the executor, administrator. ... is examined in his own behalf....concerning the same transaction or communication." These should be treated as exceptions to 589, and as taking them out of the operation of that section. If this be true, the parties included in these exceptions stand upon the same footing they did before the adoption of The Code. Before the adoption of The Code, a party interested in the result of the verdict and judgment could not be a witness. This rule is now restricted to parties falling within the exceptions contained in Section 590, and the only question to be considered is whether the witness, D. F. Bridges, falls within these exceptions, or not. It must be conceded that he is interested in an action. FERTILIZER Co. v. RIPPY. brought upon a note given by him, and for which it is admitted that he is liable to the full extent of the note. And if this evidence establishes the partnership alleged by plaintiff, the estate of defendant's intestate is liable to the plaintiff for the whole of the note; and the witness can only be compelled to contribute to defendants one half of what he has had to pay. It is admitted that plaintiff proposes to ask him to testify as to personal transactions and communications with deceased's intestate. It is admitted that he is not a party to this action; and the only question left for our consideration is, whether he is "interested in the event of the action." If he is, he is disqualified; if he is not, he is competent. It seems to us that if this question is an open one, and to be determined upon reason-logical deduction-sustained by quite an array of authorities, it must be held that he is incompetent. "It makes no difference in any of these cases whether the witness is called by the plaintiff or the defendant; for, in either case, the test of interest is the same; the question being whether a judgment, in favor of the party calling the witness, will procure a direct benefit to the witness." 1 Greenleaf Ev., Section 395. "So, in a suit against one on a joint obligation, a co-obligor, not sued, is not a competent witness for the plaintiff to prove the execution of the instrument by the defendant; for he is interested to relieve himself of a part of the debt, by charging it on the defendant." Ibid. Speaking of the competency of one partner, who is liable for the debt to a party sued and who would be liable to contribution, if it be shown that he is a partner, he is incompetent to prove that fact, Mr. Starkey says: "It seems that in general where a witness was prima facie liable to the plaintiff in respect to the cause of action for which he was sued, he was not a competent witness for the plaintiff to prove the defend FERTILIZER Co. v. RIPPY. ant's liability; for his evidence tends to produce payment or satisfaction to the plaintiff at another's expense; and the proceeding and recovering against another would afford some if not conclusive evidence against the plaintiff in an action against the witness. Thus it was held that where the witness was prima facie liable to the vendor of goods, which he had bought in his own name, he was not a competent witness for the vendor against a third person to prove that the defendant was either solely or jointly liable for the goods; for in such case the witness had a direct interest in causing another either to pay or to contribute to the payment of the debt." Starkey on Ev. (10th Ed.), 120. "In a suit against one on a joint obligation, o co-obligor, although not sued, can not be called as a witness for the plaintiff to prove the execution of the instrument by the defendant. The interest of such witness is against the defendant, for he may relieve himself of a part of the debt by charging the defendant." Marshall v. Trailkell, 12 Ohio, 275. The 29 Am. and Eng. Enc. of Law, in speaking of the right of one partner to be a witness against another, says that "According to the weight of authority he was not competent for the plaintiff to prove either the partnership or the liability of the defendant, because he was directly interested in increasing the number of persons who should share the burden for which he was liable by his own admissions." 29 Am. and Eng. Enc., 576-7. During the war of 1812 a company bought a vessel called the "Spitfire," which was sent to the plaintiff to be repaired and fitted up to be used as a privateer. The work was done but the plaintiff was not paid, and he brought his action for making the repairs. The action was brought against Webb & Webb, who denied that they had any interest in the "Spitfire," and denied that they were liable to the plaintiff for anything. |