and the objection will only go to his credit.1 Generally speaking, the release should be given before trial, or at all events, before the testimony is closed; but where the defendant suffered an interested witness to be examined, on the undertaking of plaintiff's attorney to execute a release to him after the trial, and, the plaintiff having obtained a verdict, failed to execute the release, a new trial was refused the defendant, but the witness was allowed his remedy on the undertaking.2

4

5

§ 87. What Interests are, and what are not removed. As a general rule, subject to some exceptions to be presently considered, all disqualifying interests may be removed by a proper release; and this, whether the proposed witness has a sole, individual interest, or is jointly interested with others. Thus, one who is individually interested in a distributive. share of a fund sought to be recovered, may, for a nominal consideration, release his interest for the express purpose of becoming a witness.3 And one who is interested as a member of a firm, or as a joint-contractor with others, or a jointdebtor, may be restored to competency by the giving or receiving a release, as the nature of the interest may require. But there are some interests which, owing to their peculiar character, cannot be reached by a release, though doubtless removable in some other manner. Among these are the right of an inhabitant of a town in common with others; for a release by him to the other inhabitants will not render him competent to testify for one of them in an action founded on the common right.8 And a legatee, distributee, or heir, who releases his interest in the particular suit or debt sued for, does not become competent, if the proceeds of the re

1 Jones v. Raine, 4 Rand. (Va.) 386. See also Wake v. Lock, 5 Car. & P. 454; Doty v. Wilson, 14 Johns. (N. Y.) 378.

2 Heming v. English, 1 Cromp. M. & R. 568.

3 Carter v. Trueman, 7 Pa. St. 315. But a distributee is not made a competent witness by release of all his interest in a particular demand, sought to be recovered by the administrator. Kennedy v. Conn, 3 B. Mon. (Ky.) 321. Compare Dunbar v. Chevalier, 28 Miss. 161.

4 Linsley v. Lovely, 26 Vt. 123; Ward v. Lee, 13 Wend. (N. Y.) 41; Lefferts v. DeMott, 21 Wend. (N. Y.) 136.

5 Smith v. Allen, 18 Johns. (N. Y.) 245; Duke v. Pownall, 1 Moo. & Malk. 430.

6 Bagley v. Osborn, 2 Wend. (N. Y.) 527. But see Bank of Utica v. Mersereau, 3 Barb. (N. Y.) Ch. 528.

7 See infra, §§ 89-94.

covery would go to increase the assets of the estate.1 So, also, in an action for land, and damages for its detention, a defendant who has released to his co-defendants may yet be interested in the damages for the detention, and therefore incompetent. And the covenantee in a real covenant, running with the land, cannot release the covenantor after he has parted with the estate, so as to render him competent: no one but the present owner can release the covenant.3 Again, a release by an insolvent debtor of his claim to the surplus of his estate does not render him competent in a suit in behalf of the assignee in insolvency, as such.1

So, also, one of the contestants against a will, who is a party to the suit, and as such liable for costs, is an incompetent witness to defeat the probate of the will, even though he should release all his distributive interest in the estate.5 And a joint-defendant, upon being released from liability to certain parties, cannot be permitted to testify that a judg ment is dormant, as the result would be the release of all parties from liability on the judgment, and he would, therefore, be interested. Again, an owner of a vessel at the time of a collision, and when suit was commenced and the boat attached, who sold his interest with the understanding that the purchasers should run the risk of the suit then pending, was held incompetent to testify. And on the trial of a sci. fa., on a mechanic's lien filed against a reputed owner and two contractors, such owner and one contractor cannot make the other a competent witness by a release, as they have no power to release him from his liability to the plaintiff's costs.8

In view of the general abolition of interest in the event, as a disqualification, no further examples of interests, which, at common law, were beyond the reach of a release, need be

1 Maury v. Mason, 8 Port. (Ala.) 211; Powell v. Powell, 7 Ala. 582. See also Montgomery v. Grant, 57 Pa. St. 243; Rowt v. Kile, Gilm. (Va.) 202.

2 Dearmond v. Dearmond, 10 Ind. 191.

3 Leighton v. Perkins, 2 N. H. 427; Pile v. Benham, 3 Hayw. (Tenn.) 176; Sherwood v. Hubbel, 1 Root (Conn.) 498.

4 Wilkinson v. Pittsburg Farmers' &c. Turnpike Co., 6 Pa. St. 398; Bittir v. Keys, 2 Id. 459. Compare Perryman . Steggall, 8 Bing. 369. 5 Taylor v. Kelly, 31 Ala. 59. 6 Neal v. Lamar, 18 Ga. 746.

7 Patrick v. The J. Q. Adams, 19

Mo. 73.

8 Haworth v. Wallace, 14 Pa. St. 118.

given; but the reader who desires to further investigate the subject is referred to the authorities collated in the note.1 § 88. What is a Good and Sufficient Release. It is pretty well settled that a general release of all actions, and causes of action, or of a particular cause of action, which has happened before the time of the release, will discharge the witness from all liability dependent upon the event of the suit in which he is called to testify, touching his conduct in the matters on which the suit is founded.2 Therefore, such a release from the drawer to the acceptor of a bill, was held to render the acceptor a good witness for the drawer, in an action by payee against drawer, the suit being pending when the release was given.3 So, also, the written consent of the counsel for one party that the next friend or surety on appeal

1 Assignor of subject of suit. Smith v. Newton, 38 Ill. 230.

Bankrupt or insolvent. Barnes . Billington, 1 Wash. (U. S.) 29; Glenn v. Van Kapef, 2 Gill & J. (Md.) 132; Steele v. Phoenix Ins. Co., 3 Binn. (Pa.) 306.

Execution debtor. Gray v. Morey, 26 Ill. 409; Knerr v. Hoffman, 65 Pa. St. 126; Seymour v. Beach, 4 Vt. 493. Grantor or grantee. Paige v. O'Neal, 12 Cal. 483; Clark v. Johnson, 5 Day (Conn.) 373; Fash . Blake, 38 Ill. 363; Taylor v. Whiting, 2 B. Mon. (Ky.) 268; Gilbert v. Curtis, 37 Me. 45; Fatheree v. Fletcher, 31 Miss. 265; Cunningham v. Knight, 1 Barb. (N. Y.) 399; Falls v. Carpenter, 1 Dev. & B. (N. C.) Eq. 237; Buie v. Wooten, 7 Jones (N. C.) L. 441.

Distributee or legatee. Robinson v. Tipton, 31 Ala. 595; Martin v. Mitchell, 28 Ga. 382; Wampler v. Wampler, 9 Md. 540.

Husband or wife. Woods v. Williams, 9 Johns. (N. Y.) 123; Mishler v. Merkle, 10 Pa. St. 509; Sheer v. Austin, 2 Rich. (S. C.) 330. See also infra, Chap. X.

Landlord or tenant. Vincent v. Huff, 4 S. & R. (Pa.) 298.

Master or crew. The Peytona, 2 Curt. (U. S.) 21; Weaver v. Alabama &c. Co., 35 Ala. 176; Arnold v. Anderson, 2 Yeates (Pa.) 93.

Mortgagor. Little v. Riley, 43 N. H. 109; McLaren v. Hopkins, 1 Paige (N. Y.) 18; Bardwell v. Howe, 1 Clark (N. Y.) 281.

Parties to negotiable paper. Gould v. Tatum, 21 Ark. 329; Pendleton v. Speed, 2 J. J. Marsh. (Ky.) 508; Hankerson v. Emery, 37 Me. 16; Purvis v. Albritton, 4 Jones (N. C.) L. 170; Dogan v. Ashby. 1 Strobh. (S. C.) 433; Shackelford . Wheeler, 7 Tex. 553.

Partners. LeRoy r. Johnson, 2 Pet. (U. S.) 186; Bill v. Porter, 9 Conn. 23; Dougherty v. Smith, 4 Metc. (Ky.) 279; Rhoads v. Armstrong, 41 Pa. St. 92.

Principal or surety. Bank of Limestone v. Penick, 2 T. B. Mon. (Ky.) 98; Church v. Dickinson College, 3 Watts & S. (Pa.) 221; Hutchinson v. Pettes, 18 Vt. 614; Austin v. Dorwin, 21 Vt. 38.

Servants. Rich r. Jones, 9 Cush. (Mass.) 329; Horne v. Memphis &c. R. R. Co., 1 Coldw. (Tenn.) 72; Stevens v. Colby, 46 N. H. 163.

Trustees. Wade v. Lynch, 21 Md. 534; Ferriday v. Selser, 4 How. (Miss.) 506.

2 Citizens' Bank 2. Nantucket Steamboat Co., 2 Story, 16; Bond v. Carter, 14 Ga. 697.

3 Scott v. Lifford, 1 Campb. 249, 250; Cartwright v. Williams, 2 Stark, 340.

of the other party, should be examined as witnesses, as fully as if not parties, prevents the necessity of a motion for their discharge, to make them witnesses, and precludes any attack upon their credibility as parties.1 And a formal release from any liability over to the party examining the witness, annexed to the interrogatories and transmitted with the commission under which he was examined, is sufficient to remove the objection to his testimony on the score of interest.2 It makes no difference that the release was obtained for the express purpose of restoring the competency of the witness.3

Again, a release of a personal warranty is good without registration, on the trial of an ejectment by the vendee.1 A covenant not to sue has been held a good release ;5 but a covenant to relieve a co-obligor against a judgment which might be obtained against all the obligors was held not to be; and so of an agreement by the plaintiff in a suit on a promissory note against the maker and indorsers, not to take judgment against the last indorser unless he recovered against all. The general rule was that to remove the interest of the witness, he must be released from all liability for costs, for the money recovered, and from all claims in discharge of which the money recovered in the suit would go.8 A writing was necessary, a parol release would not do.9

§ 89. Assignment or Transfer of Interest.—It was well settled even at common law, that one whose testimony was desired in an action might lawfully transfer all his interest in property which was about to become the subject of such action for the purpose of making himself a witness; and, while his

1 Varner v. Goldsby, 22 Ga. 302. 2 Farwell v. Harris, 12 La. Ann. 50. 8 Mott v. Small, 20 Wend. (N. Y.) 212; 22 Id. 403. In equity the examination of a defendant as a witness, by the plaintiff, is an equitable release of such defendant, as to the subject-matter of his testimony. Lewis v. Owen, 1 Ired. (N. C.) Eq. 290; Burton v. Stamper, 6 Id. 14.

4 Pile v. Benham, 3 Hayw. (Tenn.) 176.

384.

644.

Waggener v. Dyer, 11 Leigh (Va.)

6 Brown v. Johnson, 13 Gratt. (Va.)

Hogshead v. Baylor, 16 Gratt. (Va.) 99.

8 Wills v. Judd, 26 Vt. 617. Thus

a witness who had received a release, but who, upon being asked if he did not expect to pay the judgment and expenses, provided the plaintiff recovered, replied, "I certainly do," was held incompetent to testify for the defendant. Skillenger v. Bolt, 1 Conn. 147. See also M'Causland v. Neal, 3 Stew. & P. (Ala.) 131; Towns v. Alford, 2 Ala. 378; Bulkly v. Dayton, 14 Johns. (N. Y.) 387; Boardman v. Roger, 17 Vt. 589.

9 Richardson v. Bartley, 2 B. Mon. (Ky.) 328. See also Kennon v. McRae, 2 Port. (Ala.) 389.

testimony was to be carefully and perhaps suspiciously scrutinized, such testimony was still to be judged of by the ordinary rules which govern in the law of evidence, and to be credited or discredited accordingly. Therefore, a plaintiff in a suit, who had assigned all his interest in the event of it, could be a witness, the costs of the suit having been paid, or such an amount deposited with the proper officer, by the assignee, as would discharge the same.2 If the party had parted with his interest at the time of the trial, he was competent; and the fact that the transfer was without recourse did not alter the case. An assignment without warranty was deemed as effectual to divest the witness' interest as a formal release of interest would be.5

But it was held that one interested in a chose in action at the time of its origin could not, by assigning his interest to a mere volunteer, become a competent witness for the assignee as to matters which preceded the assignment. And a merely colorable assignment made for the purpose of enabling a party who should be the plaintiff on the record, to testify, did not divest his interest so as to render the assignor competent.7

- It was held at

$90. Divestment of Interest by Payment. a comparatively early period that one who was collaterally interested in the event of a suit, in any given amount, so as to render him incompetent as a witness, could be restored to competency by the payment of the amount of his liability.8 Such payment, of course, removed all the interest of the witness. So, where a principal filed a bill to enjoin an action

1 Tobey v. Leonards, 2 Wall. (U. case of non-payment, was a competent S.) 423. witness for the garnishees. Byars v. Griffin, 31 Miss. 603.

2 Willings v. Consequa, Pet. C. Ct. 301. S. P. Smith v. Bell, 35 Ga. 238. But see Clement . Bixler, 3 Watts (Pa.) 248; M'Lughan v. Bovard, 4 Id. 308; Tilley v. State, 21 Tex. 200.

3 Central R. R. &c. Co. v. Hines, 19 Ga. 203; Henderson v. Crouse, 7 Jones (N. C.) L. 623.

4 Blackerby v. Holton, 5 Dana (Ky) 520; Beaver v. Beaver, 23 Pa. St. 167. Thus, the principal defendant in a garnishee process, who, before service of the attachment, assigned the debt due from the garnishees, without retaining any liability to his assignee in

5 Cates v. Wacter, 2 Hill (S. C.) 442. See also Patton v. Allison, 7 Humph. (Tenn.) 320.

6 Lindsley v. Malone, 23 Pa. St. 24. 7 Phinney v. Tracey, 1 Pa. St. 173; Leiper v. Peirce, 6 Watts & S. (Pa.) 555; Cochran v. M'Teague, 8 Id. 272; Gates v. Johnston, 3 Pa. St. 52; Jarvis v. Barker, 3 Vt. 445. But compare to the contrary, Bank of Woodstock v. Clark, 25 Vt. 308.

473.

8 Dearborn v. Dearborn, 10 N. H.