At the time the action was tried, interest in the event of it was no reason for excluding a witness, provided he was not a party, or the action was not prosecuted or defended for his immediate benefit. The only possible ground there could be for the exclusion of the witness in this case, was that the suit was being prosecuted for his immediate benefit. Whether this was so, was a question addressed to the referee, and if he found and decided the fact upon sufficient and competent evidence, and gave a proper construction to the statute, we ought not to review it. But the difficulty seems to lie here. A declaration of the plaintiff in May, 1854, that he had sold his account to his son, can scarcely sustain a finding that at the commencement of the action, six months afterwards, and at the time of the trial, the son (the witness) was "the beneficial owner of the demand in suit," and it had no tendency to show that this action was prosecuted for the benefit of John L. Requa, the witness, or that anybody else but the plaintiff on the record had anything to do with the prosecution of it. But conceding there was enough in the proof prima facie to base a conclusion against the plaintiff that the witness was the "beneficial owner" of the demand in suit, such a determination was not necessarily conclusive upon the question whether the action was being prosecuted for his benefit. Under certain circumstances, when a person is the owner of the claim in suit and consequently the real party in interest, though another may be nominally on the record, the fact of ownership of the subject matter of the suit may be *Page 257 conclusive upon the question, that the prosecution is and was carried on for his benefit. But the circumstances must be such, as that the owner of the demand will in law be as effectually concluded by the judgment that may be rendered as the party to the record. It cannot be pretended that John L. Requa would have been concluded by the record in this case. There was nothing to show that he was connected in any way with its prosecution. On the contrary, the plaintiff complained in his own right, and on his own behalf, and the defendant answered defending himself against the plaintiff's claim, and not against any claim of John L. Requa as assignee. It is true that the defendant, in answering, alleges the ownership of the cause of action by John L. Requa, which, without the set-off, constitutes a defence; but he does not pretend that the suit is prosecuted in behalf of any other person than the plaintiff on the record. The testimony given by the defendant, it seems to me, assumed that Gabriel Requa was the party in interest in this action whether the demand really belonged to him or not; otherwise his declarations would not have been admissible.
But if the evidence given by the defendant tended to show John L. Requa to be the owner of the demand in suit, and the law raised the presumption from that fact that the prosecution was being conducted for his benefit, I think his testimony ought to have been received on the point as to whether the suit was being prosecuted for his benefit. Formerly, when a witness was objected to on the ground of interest, the party objecting might elect to prove such interest without questioning him; and in such case the current of authority appears to have been, that it was not competent for the party calling him to show him free from interest by examining him on his voire dire. It is not interest now which excludes the witness, but the fact that he is a party to the suit, by its being prosecuted for his benefit, and subject to his control. The reason given for excluding the examinationvoire dire on the question of interest was that "a party should not sport with the conscience of a witness when he has other proof of his interest." *Page 258 This reason has little application when the question is whether the particular action is being prosecuted for the witness' benefit or not; as on such a question, the bias of the witness is as likely to be one way as the other. It was a very narrow technicality which excluded, even when the question was one of interest, the examination of the witness himself, by the party calling him, after other evidence had been resorted to; and I think should not be extended to a case where the inquiry is not as to the fact of interest, but whether the witness sustains such a relation to the particular suit as that he may control it, and will be concluded by the judgment rendered therein.
I think the judgment should be reversed, and a new trial ordered, with costs to abide event.
SELDEN, J., took no part in the case; all the other judges concurring,
Judgment reversed, and new trial ordered