The Court not being unanimous, delivered their opinions seriatim.
By the Court.
delivering the opinion.
It becomes my singular duty to deliver the opinion of the Court, while I dissent, in part, from its judgment. This I shall proceed to do, and I shall then assign the reasons which have induced me to differ from my brethren, on the point of disagreement.
The errors assigned in the record are—
1. That Malcolm C. Perkins being a party to the record, and therefore an interested and incompetent witness, ought not to have been allowed to testify.
2. That the Court instructed the Jury that the Common
8. That the Court refused to instruct tbe Jury that defendant might limit its Common Law liability by notice brought home to the plaintiffs.
4. That the Court refused to instruct the Jury that a special contract could be entered into between plaintiffs and defendant, and that such contract could only be nullified by-fraud or negligence on the part of the defendant.
5. That the Court refused to instruct the Jury, that the deposit of lumber on the side of a rail' road, at a point where there was no station and no agent of said rail road, was not, in point of law, a good delivery.
1. It is the opinion of a majority of the Court, and therefore, the ruling of this Court, that the Circuit Judge committed no error in allowing Malcolm C. Pei’kins to be sworn as a witness on the trial of this cause.
It is true, that at the time of the institution of the suit, he was a party to the record and a party in interest; but before the trial, he had sold and -assigned his interest in the firm of Hines, Perkins & Co. and was indemnified, so far as the costs were concerned, so that,' when offered as a witness, he had no interest in the suit, though he was still a party to it. The Court being of opinion that the only reason for the exclusion of a party to the record from being a witness, is the interest he has in the cause, believe, that when that objection ‘is removed, he may be sworn as other witnesses; and if any objection remain, it goes to his credit, and the Jury will judge of that. Elementary writers on evidence, of great reputation, put the exclusion of a party to the suit on the record, as a witness in his own favor against the adverse party, on the immediate and direct interest which he has in the event of the suit. (1 Phillipps' Ev. 69; Norris’ Peake, 219 ; 1 Starkie, on Ev. 105.)
The identical point now under consideration, was expressly adjudicated in the case of Willings & Francis et al. vs. Consequa, (1 Peter's C. Ct. Rep. 307,) and the party to the suit
2. We now come to the consideration of the charge of the Court. Whether the presiding Judge was right in charging the Jury as he did, and in refusing to instruct the Jury as requested by defendant’s Counsel, depends on the evidence submitted in the cause. The proceedings in the Court below exhibit no proof of any notice given by defendant, brought home to the plaintiffs; nor any special acceptance of the-lumber by defendant, by which its Common Law liability, as a common carrier, could be varied or limited; nor do they show that any special contract for such a purpose was set up or proved.
The whole of the proof, so4 far as it appears in the record, was directed to the point, whether the lumber had been delivered to and received by the defendant, before it was burnt; and the Judge before whom the cause was tried, in his charge to the Jury, put the liability of the defendant on that issue. To have given the instructions to the Jury contained in the first and second requests of defendant’s Counsel, there having been nothing in the evidence to warrant them, would have been error. It ivas not error to refuse them.
In regard to the third instruction asked, it may be remarked, that as an abstract legal proposition, it is correct as stated; but it is not true that the defendant could not, by its-agreement, make such a delivery a good one; and that was-the question in this case. The evidence was mainly directed to the proof of this issue. On the one hand, it was proven that defendant had hauled lumber for the plaintiffs from the same point before ; that the lumber had been lying by the-road for five or six weeks before the burning; that the super
Hence, it will be perceived, thatit was by the plaintiffs insisted, that the lumber had been received by the defendant before the burning ; while, on the other hand, it was contended,, that although deposited there, it had never been delivered to and received by defendant. The Jury, alone, could determine the question, and the charge of the Court seems to have been sufficiently explicit on this point, when he declared that he would not be understood as charging that individuals could deposit goods along the road, anywhere and everywhere, and that such deposit would be a good delivery.
It may not be amiss to say here, however, that the point in the case of Fish vs. Chapman & Ross, was, whether the special contract constituted the plaintiff in error a common carrier, and not whether it restricted his liability as a common carrier. The Court held that he was liable on his contract, under the facts in proof, and that as his contract imposed on him more onerous terms than the law does on common carriers, on their ordinary contracts, the charge of the Court, that he was liable as a common carrier, could have had na improper influence with the Jury against him. The doctrine of notice and special acceptance, was learnedly and ably discussed; and although it was not necessarily involved in the question before the Court, we approve of it generally.
A party to a contract cannot, of his own will, change the law of that contract, nor can a man, by giving notice, abrogate the law or change a rule of law, which attaches to the business in which he is engaged, a peculiar liability. But we are not to be understood to say, that he may not make a contract, when he makes it on equal terms with those with whom he deals, to mitigate the hardships of a legal rule, which exposes him to apparently unreasonable liabilities, when that contract is not forbidden by any principle of the Statute or Common Law. The argument and consideration of this case, have suggested some points of vast interest to the community and to rail road companies. Do they stand on the precise footing of other common carriers in all respects ? Or, are they not bound, in consequence of the extraordinary privileges they enjoy, to provide ample means for the transportation of all produce and commodities that may be offered at either terminus, or along the line of the road, and to receive and carry the same within a reasonable time ? Whether, if they have the power of restricting their liability by a speeial
I proceed, now, to assign my reasons for dissenting from that part of the decision of the Court which adjudges that Malcolm 0. Perkins was a competent witness on the trial of the cause. Though his interest had been removed, he was a .party to the record, and a party to the issue to be tried. If it be a rule of law, that a party to the suit is an incompetent 'witness to testify in the cause, and it stands’ alone as a rule of law, independent of a reason, it cannot be annulled by attaching thereto a conjectural re’ason, .and holding that that reason, under particular circumstances, does not exist. Commentators on the Law of Evidence, not satisfied with stating the rule of law, have undertaken to give a reason for it; and as parties to the suit are always to'be presumed to have a direct interest in the event of it, they have assigned that convenient reason as the only reason for it. But the reason, as stated, is by no means as ancient as the rule itself, and constitutes no part of it. I do not mean to say, that it -was not ¡among the motives that led to the establishment of the rule.. Whether the law, in regard to the competency of witnesses, has its foundation in “a Statute worn out by time,” or derives its authoritative force from the immemorial usage of ‘Courts in their administration of justice, it is the law, and the law independent of a reason.
But learned and distinguished writers on the laws of England, and on the particular law of evidence, have conceived that there might be other reasons for rendering the party to the suit incompetent, besides his interest in the event of the suit. Sir William Blaclcstone says, that “ to avoid all temptations to perjury, the law of England lays it down as an in
That this rule'of the Common Law, is not founded exclusively on the interest that the party has in the event of the •suit, if it be needful to go into that inquiry, is deducible from the fact, that according to the rule of the Common Law, a party to the suit cannot be compelled, against his will, to give evidence against his interest for his adversary; while a witness not a party to the-suit, but interested in the event of the suit, is not competent, and cannot be allowed to give • evidence at the instance of the party in favor of whom his interest inclines, but the opposite party, against whom his interest is, may compel him to testify. If it be interest alone that disqualifies, why not compel the party to the suit to testify against his interest as well as the witness who is not a party? The Courts have never felt authorized, proceeding upon the reason of the thing, to change this rule. It has been changed, however, but it required the power of the Legislature to do it. It is to be hoped that this innovation will work well in practice. Less difficulty is certainly likely to result from it, than will probably ensue from the establishment of a rule which will place it in the power of a party to the issue, to make merchandize of his oath, by soiling and assigning his interest in his own suit, and then give evidence to sustain it. It is a temptation; and although honest and honorable men will not be seduced by it, it is to be feared that such men may become the victims of unscrupulous adversaries. We should take human nature as it is, liable to the control of selfish influences, and save the administration of justice, as
Modern cases which go to the extent of admitting the party to the suit as a competent witness, when his interest is removed, are predicated on the KTOnos*aj»^saiqslve reason for the rule, and not on the rule case of Willings & Francis et al. vs. Consequa, in 1 Peters’ Circuit Reports. In no old reported ajtse«hto find a .a departure from the rule, on me ground that thelnterest of the party to the suit had beeia r^(g^^ifcl5ftMt he was, therefore, a competent witness.%^
The case last referred to, that Willings & Francis et al. vs. Consequa, has been strongly disapproved by the Supreme Court of the United States. “ They think-it is not sustained by principle or authority.” (12 Peters’ Rep. 149.) The same Court determined, in the case of John F. Stein vs. William Bouman et al. that the objection to the competency of a party, does not arise so much from the small pecuniary liability to the payment of costs as to that strong bias which every party to a suit must naturally feel. (13 Pet. R. 219.) The same doctrine is reiterated in the case of Bridges et al. vs. Armour et al. (5 Howard’s U. S. Sup. Ct. R. 94.) In the case of Norton vs. Woods & Woods, (5 Paige’s R. 251,) it was said that a partner who had assigned all his interest in the demands and effects of the firm to his co-partner, who brings an action at Law in the name of both, for a co-partnership demand, could not be examined as a witness by the defendant, on the ground that he was a party to the record. Cases are collected and referred to in Cowen & Hill’s Notes on Phillips’ Ev. 134 and 1548, to the same effect, as well as others which seem to support the opposite principle.
In the case of The King vs. The Inhabitants of Woburn, Lord Ellenborough held that the person who was offered as
It will be found, on an examination, that the cases cited to sustain the principle, that a party to the suit who has no interest in the event, may be a witness, fall short of it. In the case in 17 Pickering, the witness was not a party on the record, but was rejected because of his interest, he having conveyed, with warranty, real estate attached on plaintiff’s writ. The Court rejected him, although he testified that he considered himself fully indemnified against his covenants, and felt no interest in the event of the suit.
In the case in 2 Espinasse, the defendant who was offered as a witness, had let judgment go by default, and was no ¡party to the issue to'be tried.
The case in 16 Pickering, was decided partly on a Statute ■of Massachusetts. The defendant sworn had been defaulted.
In the case in 13 Johnson, it was not the party to the suit who was offered as a witness, but the Attorney who was liable for the costs, and he was objected to on that ground.. Plaintiff gave to defendant a bond of indemnity for the costs, and defendant acknowledged the sufficiency of the obligors.
The case in 6 Barbour’s Rep. places the rule which ex-cludes the party to the suit from being a witness, on the true ground, viz: that it is founded partly on the interest which he has in the event of the suit, and partly on public policy. It also" presents a pretty full examination of the cases on the subject, and very properly draws a distinction between parties on the record, and parties to the issue to be tried. One of the strongest, and perhaps the strongest, English case cited by Counsel for defendant in error, is the case of Worrall vs. Jones, Baker & Jones, (7 Bing. 395,) and in that the defendant, who was offered as a witness, had suffered judgment by default, and was no party to the issue to be tried.
The ruling of the Court in that case was, that “ when the
This Court has held, that where one of two joint defendants does n.ot appeal from a verdict rendered against both,, but an appeal is entered by the other, the party not appealing is a competent witness on the appeal trial. In such case, the whole record goes up; and he is, therefore, a party on the record, but he is no party to the issue to be tried.
The rule as contended for, is not an equal one. Plaintiffs may always remove the disqualification, and defendants rarely ever.
I think, therefore, upon a full view of the case, that the’ judgment of the Court below, admitting Malcolm C. Perkins, to be examined as a witness, ought to be reversed.
In all the points of this case except one, the members of the Court are unanimous.
That one is the decision of the Court below, to the effect that Perkins, one of the plaintiffs, having assigned his interest in the partnership to his co-partners, became a competent witness for the plaintiffs as soon as they had deposited with the Court one hundred dollars, to be applied to paying the costs, if the costs should fall on the plaintiffs.
That decision, I think, was right.
In Worrall vs. Jones (7 Bing. 395) Tindal C. J. delivering the opinion of the Court says: “ No case has been cited, nor can any bo found, in which a witness has been refused, upon the objection in the abstract, that he was a party to the
This statement, in my opinion, is strictly true. No case of the kind referred to in the statement has been cited before this Court since I have been a member of the Court, although two opportunities have existed for the citation of such a case —one on the hearing of this case, and one on the hearing of the case of Kilpatrick vs. Wooten, a case returned to Decatur Term, 1855. In these eases, the discussions too, were by different sets of Counsel, and were both able.
The decision of the said case in Bingham’s Reports was, that a defendant in debt, who was the principal in the contract, and who had suffered a judgment by default, was a competent witness for the plaintiff in an issue, raised between the plaintiff and another defendant, who was a surety for that defendant, although this defendant, the surety, objected to his being sworn.
Here the person sworn was still a party, to the case. That a judgment by default had been rendered against him, did not make him cease to be a pai ty to the case.
In cases of tort it is every day’s practice to make decisions similar to this.
Lord Chief Baron Gilbert, in his work on Evidence, says: “ Concerning persons interested in the matter in question, the general rule is, that no man can be a witness for himself.”
After discussing this rule he says: “ Erom this rule concerning interest a corollary may be deduced.”
“ That the plaintiff or defendant cannot be a witness in his own cause; for these are the persons that have a most immediate interest.”
That a party cannot be sworn in his own cause is, then, according to the Chief Baron, not a rule in itself, but is a cor
Of course, the Chief Baron would have to say, that in a case in which the rule does not exist, the corollary does not exist.
Not only is there no decision of which I am aware, to the effect that a person who is a party to a case, is, merely because he is a party, although he has no interest in the case, incompetent to be sworn as a witness in it, but there is, besides the cases of default to which I have referred, at least one decision to the precise effect, that such a person is competent to be sworn as a witness in such a case. It is the decision of the. Circuit Court of the U. S. (Washington, J.) in Willings vs. Consequa, (1 Pet. C. C. 301, cited in notes to Phill. Ev. 137,) a case very much like the one now before this Court. The Judge says, “ The general rule of law certainly is, that a party to a suit cannot be a competent witness. But it is equally so, that the interest which that party has in the event of the suit, both as to costs and the subject in dispute, lies at the foundation of the rule, and when that interest is removed, the objection ceases to exist. In this case, the assignment has terminated the interest of H. in the subject for which the suit is brought — as to the costs they are paid by the assignees, now the only real plaintiffs on record.”
This decision has never, I believe, been over-ruled. It is true, that Judges of the Supreme Court of the U. S. have, in the course of delivering opinions in cases not analogous to this — in cases in which the person objected to as a witness, though a party, was yet a party, not freed from interest in the suit, at least not from interest in the costs, allowed themselves to say that this decision was not law. (See 5 How. 91.) Judges of other Courts in some of the States, have indulged in remarks of the same sort. But dicta that are aside from the case in which they are made, are not worth much —not as much as a decision, though that be one which they condemn.
This decision is in accordance with what I understand to
The whole argument, ah ineonvenienti, is in favor of this being the rule. In swearing a person as a witness, the object is to obtain the truth. Why is not this object as well accomplished by the swearing of one disinterested person as by the swearing of another disinterested person? What difference can the fact make that one of them may be named in the case as a party and the other not ? But unless there is a difference ought there to be a distinction ? Ought that source of opprobrium to the Courts, if not to the law itself, at this day, to receive any additional suj)plies ?
I think the decision of the Court helow, admitting the witness, ought to be affirmed.
Was Malcolm 0. Perkins a competent witness to testify in. behalf of the plaintiffs ?
At the commencement of the suit, he was one of the firm of Hines, Perkins & Co. and is still a party to the record, although he has sold out his entire interest in said firm. Under a rule of Court obtained for that purpose, an amount admitted to be sufficient to pay all costs which might accrue in the case, was deposited in the Clerk’s office; so that the question is presented, is one who has no interest, whatever, in the event of the suit, disqualified from testifying, solely because he is a party to the record ?
This is an open question, upon which different Courts, both English and American, have had their different views. What I mean to say is, that while it is laid down in all the books
How stands the point, then, upon principle ? It will be found stated by the elementary writers, as well as in the reported cases, that the rule of exclusion is not founded merely upon interest, but is based, in part at least, upon considerations of policy, to prevent perjury. And yet, to show the shallowness of this reason, either party may be put to his oath and made a witness in Equity, where he is qiute as likely to commit perjury as in a Court of Law.
Parties and persons interested, are everywhere held competent to prove the loss of a written instrument, or that it is in the power of the other party and notice t-o him to produce it on the trial, or other circumstances necessary to authorize the introduction of secondary evidence of its contents. Also, to prove the death of a subscribing witness or other facts, in order to the admission of his handwriting; and all other preliminary facts in the case. Are such persons less exposed to perjury than one who will not be gainer or loser in the event of the suit, and has no possible interest in it, simply because his name is to the record ?
In view, therefore, of our own liberal legislation, which allows a party at Common Law to be examined even against his interest; and of the tendency of the age to let all objections to testimony to go to its credit, rather than to its competency, I am of the opinion, that in every case where a party in a remote degree represents his own interest in a suit, the -rule of