for such client in another suit, in the absence of proof that there was an available defence to the first suit, and that the defendant therein suffered damage by reason of the attorney's negligence.1 Thus we see that the weight of authority, both early and recent, is to the effect that an attorney is a competent witness for his client, as against the mere objection that the relationship of attorney and client exists between the witness and the party; but as to the impropriety of his entering the witness-box for such a purpose, unless in a case of extreme necessity, there can be little difference of opinion. Indeed, he has, in some instances, been denied the right to do so.2 His attitude as both advocate and witness subjects his testimony to suspicion and criticism.3 He should employ another attorney to institute the action in which he expects to be a witness; or withdraw from the case, when in the course of the trial his testimony becomes necessary to the protection of his client's interests.5 § 54. Bail. Persons who have become liable as bail for a defendant have been held to be so far interested in the event as to be incompetent witnesses for him; for their liability becomes immediate if the judgment be against their principal, and is removed altogether by a judgment in his favor. And the rule is the same where the bail deposit a sum of money with the proper officer, to secure the defendant's appearance.7 Thus a surety on a bond, given by one of two joint debtors arrested on mesne process, to procure his release, is not competent as a witness for the defendants on the trial of the suit.8 But in Wisconsin, it was held in an early case that the bail of one indicted for seduction was not disqualified to be a witness for the defendant on that ground." 1 530. Under the English common-law practice, if a defendant Carrington v. Holabird, 17 Conn. den v. Farmer, 7 Id. 580; Boissy v. Lacon, 10 Id. 29. 2 Stones v. Byron, 4 Dowl. & L. 393; Dunn v. Packwood, 11 Jur. 242; Mishler v. Baumgardner, 1 Am. L. J. N. s. 304; 1 Greenl. Ev. (14 ed.) § 386. 3 Ross v. Demoss, 45 Ill. 447. 4 Walsh v. Murphy, 2 Greene (Iowa) 227. 5 Succession of Harkins, 2 La. Ann. 923; Blanc v. Forgay, 5 Id. 695; Mad 6 Lacon v. Higgins, 1 T. R. 164; 3 Stark, 182; Niles v. Brackett, 15 Mass. 378. 7 Lacon v. Higgins, supra. 8 Cates v. Noble, 33 Me. 258. Compare Ex parte Hinton, 3 Rich. (S. C.) 97. 9 Andrews v. State, 4 Wis. 385. See also Stow v. Sewall, 3 Stew. & P. (Ala.) 67; Butler v. Warren, 11 Johns. (N. Y.) 57; Bell v. Cowgell, 1 Ashm. (Pa.) 7. desired to examine his bail, the court, on motion, would strike out his name from the bail-piece, on the substitution and justification of another surety, or the deposit in court of a sufficient sum. Again, the bail may be rendered competent by the surrender of the principal.2 § 55. Bailor or Bailee. ·(1) Bailor. The competency of a bailor at common law, when plaintiff in an action against the bailee, has already been examined. We will now consider the admissibility of the testimony of the bailor, when, not being a party, he is called as a witness by the bailee; and then examine as to the competency of the bailee for the bailor, under similar circumstances. It is, of course, self-evident, that the bailor may be a witness for the bailee, if he has no interest in the event of the suit; and it has been so held. So, in a suit by a bailee of goods, against a carrier, for negligence resulting in the loss or damage of the goods, the bailor, having released the plaintiff, may testify for him. But it has been held that in an action of trover, by the bailee of a chattel against a stranger, the bailor is not a competent witness for the bailee to prove the general property in himself." (2) Bailee. So, on the other hand, where the bailor is the plaintiff, if the bailee is guilty of a conversion, by selling the goods to the defendant, he is a competent witness for the plaintiff, his interest being exactly balanced. A fortiori he is competent where the goods were forcibly taken from him by the defendant, and the bailor sues to recover them. So, also, he may prove the bailor's title where the goods are levied on in his hands as his own property." § 56. Bankrupts. A bankrupt, not being a party to the suit in which he is called to testify, or having any legal interest in the event, is a competent witness,10 even though 1 Tidd, Pr. 259; Baillie v. Hole, 3 Car. & P. 560; s. c., 1 Moo. & M. 289; Whartley r. Fearnley, 2 Chit. 103. 2 See Pearcey v. Fleming, 5 Car. & P. 503; Comstock v. Paie, 3 Rob. (La.) 440; Allen v. Hawks, 13 Pick. (Mass.) 79; Beckley v. Freeman, 15 Id. 468; Tompkins v. Curtis, 3 Cow. (N. Y.) 251. 3 Supra, § 27. 4 Maine Stage Co. v. Longley, 14 Me. 444. 5 Moran v. Portland Steam Packet Co., 35 Me. 55. Compare Nelson r. Iverson, 24 Ala. 9. Chesley v. St. Clair, 1 N. H. 189. S. P. Heitzman v. Divil, 11 Pa. St. 264. 7 Oliver v. McClellan, 21 Ala. 675. See supra, § 48. Contra, Pierce v. Hinsdall, 1 Tyler (Vt.) 153. 8 Wright v. Ross, 2 Greene (Iowa) 266. 9 Walmsley . Hubbard, 24 Tex. 612. 10 Boas v. Hetzel, 3 Pa. St. 298. his assignee be a party;1 and if he has received his discharge, and is sued jointly with others, he is a competent witness for the plaintiff, if without interest; and the fact that the plaintiff consented to his discharge makes no difference.2 So, also, if discharged from a debt, and his sureties for that debt are sued, he may testify for them to show usury in the contract.3 Where the bankrupt is discharged from all liability or interest in the subject-matter of a subsequent suit, he may testify therein, even though the demand upon which the suit is founded was omitted, without fraud, from his schedules.* And he may testify as to the correctness of his schedules in such a case. But where his assignee is a party, and the object of the suit is to increase the assets, it must appear that the bankrupt witness has no claim to or interest in the surplus, if any, of the bankrupt estate, and that he has received his allowance; or else he must release, or offer to release, his assignee from all claim to surplus and allowance. It must be understood that the incompetency of the witness for interest in the subject-matter of the suit is not removed by the adjudication in bankruptcy; only the discharge does this. And where the adjudication is made pending a suit to which the bankrupt is a party, his discharge will not be a bar to his liability for costs upon a judgment obtained subsequently to his discharge. Such liability, therefore, excludes him from being a witness in such suit, on the ground of interest.10 1 Wright v. Rogers, 3 McLean (U. S.) 229. 2 Onion v. Fullerton, 19 Vt. 317. 3 Morse v. Hovey, 1 Sandf. (N. Y.) Ch. 187; Fellows v. American Life Ins. and Trust Co., Id. 203; Morse v. Cloyes, 11 Barb. (N. Y.) 100. See also Carman . White, 4 Humph. (Tenn.) 301. 4 Strong v. Clawson, 10 Ill. 346. 5 West v. Creditors, 1 La. Ann. 365. 6 Oldham v. M'Cormick, 8 Blackf. (Ind.) 387; Coleman v. Tebbetts, 20 N. II. 408. See also Houston v. Prewitt, 8 Ala. 846. Otherwise where his testimony would tend to decrease the assets (Colgin v. Redmond, 20 Ala. 650). 9 Dickinson v. Codwise, 1 Sandf. (N. Y.) Ch. 214. 10 Bridges v. Armour, 5 How. 91. The authorities upon the point here decided are not harmonious. The case of Haswell v. Thorogood, 7 Barn. & C. 705, was decided in the King's Bench in 1828. Tenterden, Ch. J., said: "The rules deducible from all the cases are laid down in Mr. Deacon's Treatise on the Law of Bankruptcy; and, after stating the rules applicable to cases 7 Cully v. Ross, 7 Blackf. (Ind.) 312; where the plaintiffs have obtained Dean r. Speakınan, Ld. 317. 8 Frow v. Downman, 11 Ala. 880; Bridges v. Armour, 5 How. (U. S.) 91; Coit v. Owen, 3 Desau. (S. C.) 175. verdicts, and the defendants have become bankrupt before judgment, he says: With respect to costs upon a judgment of nonsuit, the statute (6) § 57. Debtor or Creditor.- (1) Debtor. The general rule of the common law is, that a debtor, even though a party to the record, is not disqualified, by reason of interest, from Geo. IV. c. 16) is wholly silent, making no provision whatever for the proof of a defendant's costs, whether on a judgment of nonsuit or judgment after verdict. It was, indeed, formerly determined that where the nonsuit was before the bankruptcy of the plaintiff the costs might be proved, though the judgment was not obtained till afterwards, on the ground that the costs related back to the nonsuit, by virtue of which the debt might be said to exist before the bankruptcy. But this position is to be found only in two cases, which were impugned by Lord Eldon in Ex parte Hill, 11 Ves. 646, and which were overruled in Ex parte Charles, 14 East, 197. And it has since been decided, that, where a defendant obtains a verdict, and the plaintiff becomes bankrupt before judgment is signed, the costs cannot be proved under the commission, on the principle that no debt arises in such case until judgment is signed (Walker v. Barnes, 5 Taunt. 778).' That is, I think, a correct statement of the decisions upon the subject. Now here the plaintiff becomes a bankrupt after the nonsuit, but before judgment was signed. The costs of the cause did not constitute any debt until judg. ment was signed; for there is no distinction, in this respect, between a case where a defendant obtains a verdict, and one where the plaintiff is nonsuited. The verdict or nonsuit only entitles a defendant to tax his costs; but no debt arises, and no action can be maintained for them, until judgment is signed. The case of Walker . Barnes is a decisive authority to show that the amount of these costs could not be proved as a debt under the plaintiff's commission; and if that be so, then he is liable to pay them. As to the costs of the reference, there can be no question. They clearly did not constitute a debt provable under the commission." In 1831 the same conclusion was reached in the Common Pleas (Brough v. Adcock, 7 Bing. 650). Where the debt arose before bankruptcy, but a verdict was obtained and costs taxed after, the costs were considered as a part. of the original debt, and the certificate was held to extend to both, because both were provable. This was an early case (Lewis v. Piercy, 1 H. Bl. 59). If the verdict, as well as the judgment, is after the bankruptcy, the costs are not provable (Ex parte Pouchier, 1 Glyn & J. 385). The decisions in the courts of the several States are not altogether harmonious. The following cases hold that a judgment obtained between the time of filing the petition in bankruptcy and the granting of the discharge, is not barred by the discharge. Bradford v. Rice, 102 Mass. 472; Woodbury v. Perkins, 5 Cush. (Mass.) 86; Ellis v. Ham, 28 Me. 385; Thompson v. Hewitt, 6 Hill (N. Y.) 254; Kellogg v. Schuyler, 2 Den. (N. Y.) 73; Holbrook v. Foss, 27 Me. 441; Uran v. Hondlette, 36 Me. 15; Pike v. McDonald, 32 Me. 418; Fisher r. Foss, 30 Me. 459; Roden v. Jaco, 17 Ala. 344; Ingersoll v. Rhoades, 1 Hill & D. (N. Y.) 371; Rees v. Butler, 18 Mo. 173; Leavitt v. Baldwin, 4 Edw. (N. Y.) 289. On the other hand, the following authorities maintain that the discharge will bar the judgment; and the court will inquire to see whether the original debt be one that would be barred by the discharge. Harrington v. McNaughton, 20 Vt. 283; Dresser v. Brooks, 3 Barb. (N. Y.) 429 (denying certain dicta in earlier cases); Johnson v. Fitzhugh, 3 Barb. (N. Y.) Ch. 360; Clark v. Rowling, 3 N. Y. 216; Fox v. Woodruff, 9 Barb. (N. Y.) 498; McDonald . Ingraham, 30 Miss. 389; Downer v. Rowell, 26 Vt. 397; Dick v. Powell, 2 Swan (Tenn.) 632; Stratton v. Perry, 2 Tenn. Ch. p. 635; Eberhardt v. Wood, testifying in an action between two of his creditors, unless he will gain or lose by the decision. Thus, where the result of the trial can only determine which creditor the witness shall pay, he is competent; but the reverse is true, where, if the party calling him succeed, the witness's debt is paid, while if the other party prevail, his creditor remains unpaid, and the witness is left with a claim to the same amount against an insolvent man. In such a case his interest is not balanced. So if he has no interest, as is the case with one whose debt, without his request, has been assumed by a third person; he does not thereby become his debtor, and is consequently a competent witness for him, when sued on his promise, to prove the consideration on which it was founded.5 So, also, a minor, whose purchase of goods defendant promises to pay, may be the creditor's witness as to the amount and value of the goods and the character of defendant's promise. His obligation to defendant is only an honorary one. Again, a debtor is competent to prove his own fraud; as where he disposes of property in fraud of creditors, who sue to recover it; and, conversely, if after such a fraudulent transaction he sells the property to a bona fide purchaser, he may give testimony to sustain such sale, on being released. So, also, he may support the title of a bona fide assignee against the claim of another creditor who attaches the property assigned; or against a person who wrongfully converts it.10 But where the debtor is interested, as in an attempt by the creditor to make the debt out of property claimed by a third person;11 or where a sheriff being sued for the escape of the witness, he seeks to testify as to his inability to pay Id. 490; Harris v. Vaughan, Id. 486; 1 Updegraff r. Rowland, 52 Pa. St. 317; Ferree v. Thompson, Id. 353. 2 Ohio Life Ins. Co. v. Ross, 2 Md. Ch. 25. And see Galway's Appeal, 34 Pa. St. 242. 3 Danforth v. Roberts, 20 Me. 307. 4 Gifford v. Coffin, 5 Pick. (Mass.) 447, where the debtor had paid money to plaintiff's attorney (the defendant), and was called to prove that he had paid it. 5 Beall v. Ridgeway, 18 Ala. 117. 6 Sanford v. Howard, 29 Ala. 684. 7 Wisner v. Brady, 11 Iowa, 248. S. P. Philbrook v. Handley, 27 Me. 53; Aiken v. Kilburne, Id. 252. 8 Caston v. Ballard, 1 Hill (S. C.) 406. See Jackson v. Peek, 4 Wend. (N. Y.) 300. 9 Prince v. Shepard, 9 Pick. (Mass.) 176. 10 Etter v. Bailey, 8 Pa. St. 442. 11 Paul v. Rogers, 5 T. B. Mon. (Ky.) 164. |