§ 52. Assignor or Assignee.—(1) Assignor. Where the assignor of a chose in action is not a party to the record, it must be shown in order to disqualify him as a witness, that the assignment was made for the purpose of making him a witness to support the claim; and if there are circumstances of that character, it lies on the party objecting to

show them. He is a good witness if he has no interest.2 Even where the assignment is made during the pendency of the suit, and, by order of court made without objection on the part of the defendant, the assignee is substituted in the action for the assignor, and no security for costs is ordered, all claim upon the original plaintiff for costs is waived, and the assignor is a competent witness for the assignee.3

On the other hand, it was repeatedly held at common law, that the assignor of a chose in action, or unliquidated claim, was incompetent to testify in an action thereon, unless released from the implied warranty which arises in all cases of assignment for a valuable consideration, that the debt is due.5 And he cannot establish such release by his own testimony, especially where the assignment is merely colorable, made only for the purpose of enabling him to testify, and with the clear intent that he shall receive the benefit of the recovery.6 (2) Assignee. As respects the competency of an assignee of a chose in action, it has been held that he is competent if

1 Roshing v. Chandler, 3 Pa. St. 375. But see Parish v. Frampton, 32 Mo. 396; Hendricks v. Ebbitt, 37 Mo. 24.

2 Fetterman v. Plummer, 9 S. & R. (Pa.) 20. So held of one who assigned a claim to a creditor, on account of his debt, without any agreement that any part of the debt should be thereby extinguished (Bridges v. Hyatt, 16 N. Y. 546. See also Cobb v. Baldwin, 1 Root (Conn.) 534; Watson v. Smith, 13 Wend. (N. Y.) 51. S. P. Platt v. Hedge, 8 Iowa, 386, 392. But see Wilkins v. Stidger, 22 Cal. 231).

3 Warner v. Turner, 18 B. Mon. (Ky.) 758. Compare Freeman v. Jennings, 7 Rich. (S. C.) 381. The assignor of a bond may show that he obtained it fraudulently (Baring v. Shippen, 2 Binn. (Pa.) 154). The assignor of a judgment may testify in a suit thereon (Doub v. Barnes, 1 Md. Ch. 127; Himblewright v. Armstrong, 25 Pa. St. 428. But see Burrows v. Shultz, 6 Pa. St. 325). So may the assignor of a mortgage (Grosvenor v. Atlantic Fire Ins. Co., 1 Bosw. (N. Y.) 469; McConnell v. McCracken, 14 Wis. 83); or the assignor of a note (Johnson v. Black

mar, 11 Conn. 324; Weil v. Tyler, 38 Mo. 558; Taylor v. Gitt, 10 Pa. St. 428; Caton v. Lenox, 5 Rand. (Va.) 31. But see Woolfolk v. M'Dowell, 9 Dana (Ky.) 268); or of a policy of insurance (Bidwell v. St. Louis &c. Ins. Co., 40 Mo. 42).

4 Reading Railroad v. Johnson, 7 Watts & S. (Pa.) 317; Clifton v. Sharpe, 15 Ala. 618; Houston v. Prewitt, 8 Ala. 846; Muirhead v. Kirkpatrick, 2 Pa. St. 425; Adams v. Woods, 8 Cal. 306; Cox v. Davis, 16 Ind. 378; Swails v. Coverdill, 17 Ind. 337; Ketcham v. Hill, 42 Ind. 64; Woodruff v. Cox, 2 Bradf. (N. Y.) 223; London &c. Soc. v. Hagarstown &c. Bank, 36 Pa. St. 498; Howerton v. Holt, 23 Tex. 51.

5 Ludwig v. Meyre, 5 Watts & S. (Pa.) 435; Delee v. Sandel, 12 La. Ann. 208.

6 Bell v. Drew, 4 E. D. Smith (N. Y.) 59; Post v. Avery, 5 Watts & S. (Pa.) 509. So held where before the assignment was made he pledged himself to testify for the assignce (Patterson v. Reed, 7 Watts & S. (Pa.) 144. S. P. Phinney v. Tracy, 1 Pa. St. 173; Sypher v. Long, 4 Watts (Pa.) 253).

his testimony does not tend to support the title of the party calling him. But where such assignee re-assigns, neither he nor his assignee can testify.2 And where a judgment which has been assigned is afterwards reversed, and remanded for further proceedings, the assignee, being interested, cannot testify for the plaintiff.3 So one to whom a promissory note is assigned as a pledge, is incompetent to testify for the assignor in an action on the note.4

In the case of an assignment in bankruptcy, or insolvency, or for the benefit of creditors, it is well settled that the assignor is a competent witness in an action relating to the property by the assignee, the suit not being for the immediate benefit of the assignor, especially where he has released the assignee from all claims to a surplus.

§ 53. Attorneys. It is not the purpose of the writer to consider here any of the cases which have to do with confidential communications between attorney and client, or the admissibility of the testimony of an attorney as to matters involving the relationship between him and his client; but simply to examine the decisions which pass upon the question of an attorney's competency or incompetency, as a witness interested in the event of the litigation.

Mr. Greenleaf says: "In regard to attorneys, it has in England been held a very objectionable proceeding on the part of an attorney to give evidence when acting as advocate in the cause, and a sufficient ground for a new trial.8 But in the United States no case has been found to proceed

1 Wilson v. Speed, 3 Cranch (U.S.) (S. C.) 413; Gilchrist v. Martin, 1 283. Bail. (S. C.) Ch. 492.

2 Grayson's Appeal, 5 Pa. St. 395; Clover. Painter, 2 Id. 46.

8 Stewart v. Conner, 13 Ala. 94. 4 Harbin v. Roberts, 33 Ga. 45. To the contrary, Locke v. N. Amer. Ins. Co., 13 Mass. 61.

5 Jones v. Church of Rochester, 21 Barb. (N. Y.) 161; Krum v. Beard, 31 Mo. 505; Allen v. Hudson &c. Ins. Co., 19 Barb. (N. Y.) 442; Legee v. Burbank, 2 E. D. Smith (N. Y.) 419. But see Fitch v. Bates, 11 Barb. (N. Y.) 471; Sharp v. Long, 28 Pa. St. 433; Caulfield v. Sanders, 17 Cal. 569; Lockwood v. Canfield, 20 Cal. 126; Pinchback v. Killian, 9 Rich.

6 Greene v. Durfee, 6 Cush. (Mass.) 362; Jaques v. Marquand, 6 Cow. (N. Y.) 497; Bussy v. Ady, 3 Har. & M. (Md.) 97; Price v. Caperton, 1 Duv. (Ky.) 207; Faunce v. Leslie, 6 Pa. St. 121. For cases in which the competency of an assignee in bankruptcy or insolvency is considered, see Benoist v. Darby, 12 Mo. 196; Swampscot Mach. Co. v. Walker, 22 N. H. 457; Bean v. Brackett, 34 N. H. 102; Robb's Appeal, 41 Pa. St. 45. 7 See infra, § 271.

8 Citing Dunn v. Packwood, 11 Jur. 242, a.

to that extent; and the fact is hardly ever known to occur."1

In a very early Connecticut case it is held that an attorney who has transacted the business for the plaintiff is a competent witness for him;2 and there is no lack of decisions which allow him to testify in the very case he is managing.3 Thus, he may testify that the note sued on is lost, and that the copy annexed to the petition is a true copy; or that he has been authorized to appear for the party whom he claims to represent. So, he may testify as to the value of the services of another attorney, whom he has heard try cases; or to disprove the alleged champertous character of a contract made by him. So, also, he may testify as to what a witness since deceased swore to on a former trial in which he acted as counsel. And the fact that he has opened his client's case and cross-examined witnesses, does not render him incompetent as a witness for his client.9 In Alabama, it is held. that if the attorney is to receive a certain fee, and not a contingent or unliquidated one, he is competent for his client.10

1 1 Greenl. Ev. (14 Ed.) § 364. This was very true at the time Mr. Greenleaf wrote, but it seems strange that some of his annotators have not noticed the subsequent accumulation of American cases upon the point.

2 Smith v. Huntington, 1 Root (Conn.) 226.

3 Buckmaster v. Kelley, 15 Fla. 180; Willis v. West, 60 Ga. 613; Morgan v. Roberts, 38 Ill. 65; Succession of Grant, 14 La. Ann. 795; Beatty v. Davis, 9 Gill (Md.) 211; Potter v. Ware, 1 Cush. (Mass.) 519; Beall v. Territory, 1 New Mex. 507; State v. Woodside, 9 Ired. (N. C.) L. 496; Bell v. Bell, 12 Pa. St. 235; Johns v. Bolton, Id. 339; Linton v. Ford, 46 Id. 294; Rea v. Trotter, 26 Gratt. (Va.) 585.

4 Abbott v. Striblen, 6 Iowa, 191. 5 Tullock v. Cunningham, 1 Cow. (N. Y.) 256; Gaul v. Groat, Id. 113; Pixley v. Butts, 2 Id. 421; Cox v. Hill, 3 Ohio, 411.

8 State v. Cook, 23 La. Ann. 347. 9 Follansbee v. Walker, 72 Pa. St. 228. In Louisiana, the rule is, that though, under the laws of that State, an attorney is competent for his client, his position as a witness is one of extreme delicacy for himself and the court; and it is always desirable, for the harmony of the profession, the independence of the bench, and public confidence in the administration of justice, that he should not testify except in extreme cases when all other means of proof are impossible; and then he should withdraw from the case.

Succession of Harkins, 2 La. Ann. 923; Blanc v. Forgay, 5 Id. 695; Madden v. Farmer, 7 Id. 580; Boissy r. Lacon, 10 Id. 29. See also Mullen v. Scott, 9 La. Ann. 174, where it is said that an attorney is not an agent of his client within the rule which admits agents for their principals.

10 Morrow v. Parkman, 14 Ala. 769;

6 Beekman v. Platner, 15 Barb. McGehee v. Hansell, 13 Ala. 17; (N. Y.) 550. Quarles v. Waldron, 20 Ala. 217; even

83.

7 Benton v. Henry, 2 Coldw. (Tenn.) though he holds a note for his fee (Mosser v. Mosser, 32 Ala. 551). In

On the other hand, where the attorney is plainly interested in the recovery, he is incompetent; as, where he is liable for costs, his client being a non-resident plaintiff;1 but if he be indemnified, he may testify;2 and the same is the case where the contract rendering him interested has been rescinded.3 If his fee is dependent on the success of his client, he cannot testify if the opposite party objects. Nor is he competent if he is to receive a percentage on the amount recovered; at least, such seems to be the law in Kentucky and Louisiana.5

If the defence to the action is some negligent or other wrongful act or omission on the part of the plaintiff's attorney, his contingent liability over to his client will not render him incompetent on the ground of interest. So it has been held that the mere fact that an attorney neglected to appear and defend a suit, as requested by his client and in pursuance of a retainer, will not disqualify him as a witness

a very recent case in Wisconsin, four witnesses called by appellant to establish a material fact, were attorneys. One of them was one of his attorneys of record; but when, upon the trial, it was determined that his testimony was material to his clients, the defence of the action was entrusted to another attorney not theretofore concerned in the case. Two others had been clerks in the office of appellant's attorneys during the transactions out of which the action arose, but were not attorneys in the case; and the fourth was an attorney for a party whose interests were adverse to those of appellant. The judge, in charging the jury, said that he "did not know that any court had ever decided that a lawyer cannot tell the truth, but the courts have always deprecated the fact of attorneys being witnesses in a case." He then added other remarks from which the jury might naturally infer that the several attorneys who had testified for the appellants, had acted unprofessionally in so doing. It was held that this charge was misleading and erroneous. (Connolly v. Straw, 53 Wis. 645.) See also M'Laine. Bachelor, 8 Me. 324; Clark v. Kingsland, 9 Miss. 248; Foster v. Newbrough, 66 Barb. (N. Y.)

645; Simonton v. Yongue, 3 Strobh. (S. C.) 538.

1 Chaffee v. Thomas, 7 Cow. (N. Y.) 358. So held where another person indorsed the writ at the request of the attorney (Meserve v. Hicks, 24 N. H. 295). But his lien for costs will not disqualify him (Sherman v. Scott, 27 Hun (N. Y.) 331).

2 Chaffee v. Thomas, supra.

3 McLaughlin v. Shields, 12 Pa. St. 283.

Dailey v. Monday, 32 Tex. 141.

In

5 Commonwealth v. Moore, 5 J. J. Marsh. (Ky.) 655; Hall v. Acklen, 9 La. Ann. 219. At the present day the contingent character of the fee would probably be no obstacle. North Carolina, the fact that he intends to charge a commission for receiving and remitting the amount recovered, if any, was held not to disqualify him (Slocum v. Newby, 1 Murph. (N. C.) 423).

6 Braine v. Spalding, 52 Pa. St. 247; Orphan's Court v. Woodburn, 7 Watts & S. (Pa.) 162. He can explain who were intended to be embraced in a confession of judgment drawn by him; but he cannot attack the validity of such judgment (McBride v. Bryan, 67 Ga. 584).