CASES IN THE District Court FOR THE CITY AND COUNTY OF PHILADELPHIA. MARCH TERM 1812. 1812. March 7. The nominal plaintiff, in an action brought A WISTAR against WALKER. CTION on the case, in the names of John Wistar and John M. Price, surviving partners of William Wistar for a book ac- deceased, to the use of Charles Wistar against Sarah Wal count which had been bona ker, executrix of John Walker deceased. fide, and for a valuable con admitted as a Pleas, non assumpsit, non assumpsit infra sex annos, and sideration, as payment; replications, assumpsit &c. and non solvit and issues. signed before the action was Before the suit was brought, John Wistar and John M. brought, was Price, bona fide, and for a valuable consideration, assigned competent wit- the account on which the suit was brought, to Charles Wistar. ness, though John Wistar was offered, and admitted as a competent witness to prove an acknowledgment of the testator, John Walsignment was ker in his life time, in order to prevent the operations of the intention to statute of limitations; the Court reserved the point, with open the way liberty for the defendant to move for a non suit, which was now done. he admitted that the as made with an for his testi mony. At the trial, the witness said, that he was not directly or indirectly interested in the event of the suit, having parted with every particle of interest in the claim, which was prosecuted entirely at the risk of the assignee, the sole owner; though he admitted, that the transfer was made with an intention to open the way for his testimony. It was argued by McKean, for the plaintiff's, and S. Levy for the defendant. 8. Levy, for the defendant. The admission of the witness in the present case was contrary to the principles of sound policy. There is no part of the jurisprudence of our country which will bear a stricter scrutiny from the eye of reason, than the law of evidence. Toa superficial observer, the application of its rules may sometimes appear to oppose the justice of a particular case, but an examination of the general principles upon which the rule is founded will satisfy the learned enquirer that it rests upon the sure basis of justice. The rejection of interested witnesses does not prevent the elucidation of the truth. From the nature of human passions and actions, it is rather a ground to disbelieve, than to believe a fact, that the evidence of it depends on the testimony of a party interested; and therefore, it is no injury to society to remove, an incompetent witness from the hearing of the jury; those who may hurt themselves by sliding into perjury, but who can never lay the ground for a rational belief. Some men no doubt would be incapable of telling an untruth, though under the influence of the greatest interest, (and of this number might have been the witness received in this case), but others would betray the most solemn obligations for a trifling consideration, therefore nothing short of an universal exclusion of all persons interested, however latent or remote the interest, can preserve infirmity from snare, and integrity from suspicion. He admitted that the cases of M Ewen against Gibbs, and Steele against the Insurance Company, had proceded great lengths in the admission of witnesses; further, he conceived, than was warranted by any judicial decision of England. McKean for the plaintiff. The general rule is, that to exclude a person from being a witness, he must be either infamous or interested (a). In this case the first is not pretended; let us examine the (a) 3 Bin, Rep. 313. Steele against Phoenix Ins. Comp. 1812. WISTAR against WALKER 1812. WISTAR against WALKER. last. John Wistar, though a nominal plaintiff, is, in fact, not a party to the suit. If he had given an order to discontinue the action, it would have been entirely disregarded ed (a). A payment to him would not have discharged the defendant (b). The defendant might have pleaded, that the action was to the use of Charles Wistar, and made a set off of a debt due from him (c). But it is said, that the witness was incompetent, for, being a party to the record, he is liable for the costs. It is at least doubtful whether he is liable for the costs (d). In Canby against Ridgway, before referred to, the Court granted a rule on the assignee to pay the costs, though his name had not been placed on the record. The inclination of the court has, of late, been, to admit a witness, unless where the objection to his competency is clear (e) where the possibility of interest is remote, it goes only to his credit (ƒ). A creditor is not excluded from giving testimony, as such (g). The proper enquiry of a witness on his voyer dire, is, whether he is to gain or lose by the event of the cause (h). In trespass, if one whom the plaintiff designed to make use of as a witness, be, by mistake, made a defendant, the Court will, on motion, give leave to omit him, and have his name struck out of the record, even after issue joined (i). A guardian, being released may be admitted as a witness, in favor of his ward (k). In Mifflin et. al. against Bingham (1), McKean C. J. lays down the rule to be, that if a witness speaks under an interest it is fatal to his competency; if he is liable to an influence, it taints his credibility. In Peterson against Willing, et. al. (m), the mortgagee, after his discharge by the insolvent law, was admitted as a witness, to prove the consideration on which the (a) 1 Dall. Rep. 139. M'Cullum against Coxe. (d) 2 Dall. Rep. 172. M'Clenahan against Scott, in a note to Feild for the use of Oxly, et. al. versus Biddle. (e) 2 Dall. Rep. 240, 241. Commonweath against Ross, 3 Dall, Rep. 508. (f) Bul. N. P. New York, ed. of 1806, 290. (g) 2 Dall. Rep. 50. (h) Bul. N. P. 283. ministratrix. Innis against Miller.. (i) ibid 285. Pleasants, Administrator, against Pemberton, Ad. (1) 1 Dall. Rep. 272, 276. (m) 3 Dall. Rep. 506. 8. 1812. WISTAR against mortgage was given. The Court in that case said, "as to "the interest of the witness, it does not seem to be affected "by the event of this cause: and the laudable liberality of "Courts of justice, in modern times, has set us the example, WALKER. "for referring all such objections of doubtful and distant in"terest, to the credit, rather than the competency of the "party." The grantor of real estate has always been admitted as a witness, where he has parted with all his interest, and there is not a general warranty (a). But the cases which are decisive on this point are, Steele against Phoenix Insurance Company (b). It was an action on a policy of insurance; the plaintiff's had assigned all their property to assignees for the benefit of their creditors, from whom they received a release; the cause was marked to the use of the assignees, by whom all the costs were paid. Under these circumstances one of the plaintiffs was admitted as a witness. And M Ewen against Gibbs (c). The plaintiff, who was a certificated bankrupt, was called as a witness to prove a parol acceptance of the bill of exchange on which the suit was brought; and it appearing, that the assignees carried on the suit and had entered into security for costs, he was admitted. PER CURIAM. Hemphill, President. In this case, John Wistar, one of the nominal plaintiffs, was offered and received as a witness, reserving the point as to his competency, with liberty to move for a non suit. It appeared that the nominal plaintiffs had, before the action was brought, assigned a book account (which was the claim in the present suit), for a valuable consideration, to Charles Wistar. The witness, upon his affirmation, answered, that he was not interested directly or indirectly in the event of the suit; that the transfer was made with an intention to open the way (a) Chief Justice and Yeates, Justice, Steele against Phoenix Ins. Comp. (b) 3 Bin. Rep. 306. (c) 4 Dall. Rep. 137. VOL. II. No. 1. Y 1812. WISTAR against WALKER. for his testimony, but that he had parted with every particle of interest in the claim; that Charles Wistar was the sole owner of it, and that he carried on the suit entirely at his own risk. There was not the slightest suspicion of its being a mere colourable transfer; but it was acknowledged that the transaction was fair and bona fide. The objection to the competency of the witness was made upon strict legal principles. The general rule is, that any person not infamous nor interested is a competent witness; and from the late decisions, the circumstance of the witness being a party to the suit forms no objection to his competency, if he is not really interested. Let us enquire; First, Was the witness interested? Secondly, If not, is it against the principles of sound poliey to receive his testimony. It is very clear that he is not interested, unless he is liable for the costs, being the nominal plaintiff on record. He did not guaranty the debt, and from his answers, Charles Wistar was to incur the sole risk of its recovery. In the case of M'Cullum against Coxe (a), the Court would not permit the plaintiff, who had assigned the cause of action to another person, to discontinue; from which it is shewn, that the nominal plaintiff has no control over the suit. In this State the Courts take Judicial notice of the equitable owner of a chose in action, and consider who are the real parties to the suit. After the transfer and notice, the assignee stands in the place of the original creditor for every substantial purpose; payment must be made to him, and any set-off against him will be admitted. It is every days praetice to bring the suit without consulting the assignor, and even without his knowledge; the controversy may often extend only to set-offs and payments made to the assignee after the transfer, which the assignor had no concern. In the case of Steele against the Phoenix Insurance Company (b), C. J. Tilghman says, that in such a case, we consider the assignor as out of the question; and should issue an |