-

§ 82. Warrantors. Most of the decisions on this subject have already been examined,1 and we have seen that the common law generally excluded from the witness-box the warrantor of property, whether real or personal, when called by the vendee or grantee, in an action involving the title to such property.2 Even a remote warrantor, where there had been several conveyances of the same land with warranty, was not allowed to support the title in ejectment, his liability on his warranty still existing.3 But where the validity of the title could not be affected by the event of the suit, the warrantor was not interested, and hence competent. Where the warranty was that a horse sold by the witness to the defendant was sound, the warrantor was allowed to prove his soundness in an action against the defendant on a similar warranty.5

Where the witness was called to impeach the title he had warranted, the rule of exclusion did not apply, his testimony, in such a case, being against interest. In sales by private individuals in their own right, of property in possession, the warranty of title was implied, and no express contract had to be shown in order to exclude the warrantor from testifying; but no such implied warranty arose in the case of sales by sheriffs, personal representatives, or other trustees, except to the extent of their having no knowledge of any defect in their title or right to sell in their representative characters, and therefore they were generally held competent.8

5

Mulvany v. Rosenberger, 18 Pa. St. 203.

Robb . Lefevre, 7 Iowa, 150; Tuttle v. Turner, 28 Tex. 759.

7 Heermance v. Vernoy, 6 Johns. (N. Y.) 5; Hale v. Smith, 6 Me. 416; Baxter v. Graham, 5 Watts (Pa.) 418.

8 Mockbee . Gardner, 2 Har. & G. (Md.) 176; Petermans v. Laws, 6 Leigh (Va.) 523, 529. And see supra, §§ 68, 72, 78.

CHAPTER VII.

RESTORATION TO COMPETENCY BY RELEASE OR ASSIGNMENT OF INTEREST, PAYMENT, OR OTHER DIVESTMENT OF INTEREST.

§ 92.
by Judgment for or against the Witness:
§ 93. Effect of Indemnifying the Witness.
§ 94. Other Modes of restoring Competency.
§ 95. Necessity of Seal; Assent; Delivery.
§ 96. Proof of Release; Objections, etc.

§ 83. Release of Interest, generally. The disqualification of interest may always be removed and the competency of a witness restored by a proper and complete release.1 If the interest be a vested one in the witness himself, he may divest himself of it, by a release or other proper conveyance; if it consist in a liability over, whether to the party calling him, or to another person, it may be released by the person to whom he is liable.2 Thus the release by a member of a corporation of his interest in it renders him a competent witness for the corporation. It is reversible error to reject a witness who has released, by deed, all his interest in the suit in which he is called to testify. Thus a devisee who has released his interest is a competent witness for the trustee appointed by the will.5 Such a witness is placed, by the release of his interest, on the same footing with other witnesses, and is not confined to any particular point; and

1 Ayres v. Campbell, 3 Iowa, 582; Robbins v. Butler, 24 Ill. 387; Gillespie v. Gillespie, 2 Bibb (Ky.) 89; Evans v. Hays, 2 Mo. 97; Patterson v. Fay, 1 Phil. (Pa.) 473.

21 Greenl. Ev. (14 ed.) § 426.

6

8 Smith v. Natchez Steamboat Co.,

2 Miss. (1 How.) 479.

4 Fairly v. Fairly, 38 Miss. 280. 5 Cook v. Grant, 16 S. & R. (Pa.) 198. Luyten v. Haygood, 2 Bay (S. C.) 177; Carroll v. M'Whorter, Id. 463.

is is for the jury to judge of the degree of credit to which he is entitled. If the action is instituted for the recovery of a penalty, the witness becomes competent on releasing his interest in the penalty to the plaintiff. A witness legally released is competent, though prior to the trial he had been heard to say that he felt himself bound to re-imburse the plaintiff in case he failed to recover: the moral obligation will not disqualify him.3 And one of several plaintiffs is a competent witness for the defendant, when fully released from all interest and willing to testify, though others object who are interested on the part of the plaintiffs.4 § 84. Who may give a Release. Generally, the interest of a witness in a suit may be released by the party proposing to examine him;5 but not by the attorney for the party with whom his interest lies, in the absence of special authority in the attorney, from his client, for that purpose. The release must be given by the party holding the interest to be released, or his duly authorized agent in that behalf. Where several parties hold such interest jointly, a release by one binds all.8 Thus a release by one of several obligees in a bond sued on, or to one of several obligors, will operate as to all; and the same is true as to a release by one of two or more partners in a joint adventure,10 or two or more. joint proprietors or owners. But a release by one of two or more parties to the record, whose interests are several, will not restore the competency of the witness.12

'Kinloch v. Palmer, 1 Mill (S. C.) Const. 216.

2 City Council v. England, Riley (S. C.) 50.

8 Stimmel v. Underwood, 3 Gill & J. (Md.) 282.

4 Wills v. Judd, 26 Vt. 617.

5 Richardson v. Carey, 2 Rand. (Va.) 87.

6 McCurdy v. Terry, 33 Ga. 49; Murray v. House, 11 Johns. (N. Y.) 464; Walker v. Ferrin, 4 Vt. 523.

7 See Pollard v. Graves, 23 Pick. (Mass.) 86; Wise v. Patterson, 3 Greene (Iowa) 471; Crooker v. Jewell, 29 Me. 527. Where releases are necessary to render a witness competent, they are insufficient, unless moving from all the parties interested on

the record. Ingram v. Smith, 1 Head (Tenn.) 411.

8 Haley v. Godfrey, 16 Me. 305.

9 Cheetham v. Ward, 1 Bos. & P. 630; Bayley v. Lloyd, 7 Mod. 250; Co. Litt. 232, a.

10 Perlberg v. Gorham, 10 Cal. 120; Bulkley v. Dayton, 14 Johns. (N. Y.) 387. But see Simons v. Smith, Ry. & Moo. N. P. 29; Cheyne v. Koops, 4 Esp. 112.

11 Whitamore v. Waterhouse, 4 Car. & P. 383; Hockless v. Mitchell, 4 Esp. 86.

12 Belts v. Jones, 9 Car. & P. 199. And it has been held that one of several plaintiffs cannot release his coplaintiffs from liability to costs, so as to render them disinterested witnesses.

It has been held, that an assignee for creditors, himself a creditor, could release to the debtor all his interest in the fund, and thus become a competent witness;1 and that a husband, sued in ejectment for real estate belonging to his wife, could release a witness objected to as incompetent on the ground of his liability to the wife under a covenant for quiet enjoyment.2 So, also, a remainder-man could release his interest to the owner of the life-estate, and thereby render himself a competent witness for the latter in a suit for injury to the property.3

A surety may always release the principal, so as to render the latter a competent witness. Even an infant may execute a sufficient release, for it is voidable, not void, and a stranger will not be heard to object to it; but his guardian ad litem or prochein ami cannot, as he has no implied authority so to do."

§ 85. When the Court may release. Where a material witness for a party is a surety on a bond given by such party, the court may, in a proper case, allow another surety to be substituted, so as to render the witness competent." So it was held in the case of a surety on a replevin bond, whose testimony was material for the plaintiff,8 and in the case of a defendant's bail. But it has been held that such a course should not be taken where the bond was given on appeal, or on the allowance of an injunction, or in an action of detinue, but that the bond should be cancelled and a new one given.10 And the court has discretionary power to per

Roselius v. Barrelli, 16 La. Ann. 386. And where a common right of fishery existed in all the inhabitants of a place, a release, by one of them, of all his interest in the right, to any person whatever, was held inoperative (such interest being a personal right not assignable), and not to render him a competent witness to prove such common right. Jacobson v. Fountain, 2 Johns. (N. Y.) 170.

1 Main v. Newson, Anth. (N. Y.) 11. 2 Ford v. Walsworth, 19 Wend. (N. Y.) 334.

3 Clark v. Southern &c. R. R. Co., 27 Tex. 100.

4 Supra, § 74.

5 Rogers v. Berry, 10 Johns. (N. Y.) 132; Walker v. Ferrin, 4 Vt. 523.

6 Fraser v. Marsh, 2 Stark. N. P. 41; Walker v. Ferrin, supra. But see Hanly v. Sprague, 20 Me. 431.

7 Dudley v. Love, 35 Ga. 148. 8 Brewer v. Murray, 7 Blackf. (Ind.) 567; Bailey v. Bailey, 1 Bing. 92.

9 Irwin v. Caryell, 8 Johns. (N. Y.) 407; Baillie v. Hale, 1 Moo. & M. 289. See supra, § 54.

10 Artz v. Grove, 21 Md. 456; Webb v. Kelly, 37 Ala. 333; s.c., Ala. Sel. Cas. 349; Pomeroy v. Avery, 9 Paige (N. Y.) 591. In Arts v. Grove, supra, it is said that such a power may be very convenient, but it impairs the obligation of contracts, and violates the organic law. See also Drinkwater r. Holliday, 11 Ala. 134; Spann v. Brown, Riley (S. C.) 177.

mit a party to give a new bond for costs, for the purpose of using the surety in the old one, as a witness, after witnesses have been examined on the trial. So, also, the court may suffer the prochein ami of an infant plaintiff to be changed, and the first friend, being thereby released from responsibility for costs, is a competent witness for the plaintiff.2

But, it would seem, that a commissioner or referee, to whom it is referred to ascertain and state the facts in the case, has not power to discharge one of the defendants and make him a witness for the others.3 And in a criminal case, it has been decided that the court cannot discharge one of the defendants from the indictment, in order to enable him to testify, unless all the following facts concur: viz., a joint indictment, a joint trial, and an application on the part of the district attorney that the defendant be discharged, to be used as a witness for the people, before he has gone into his defence.4

§ 86. Time to execute the Release. A witness who becomes interested after the suit is brought, but divests himself thereof before trial, is competent,5 even though he was partowner of the contract in suit, shortly after it was made, and up to the day of the trial. The release may be executed at and during the trial; and the court cannot refuse to give it full effect because so given. If the witness has been examined in chief, before his interest is discovered, it may then be removed by a release, and the witness re-examined; 9 but in such a case the credibility of the witness will be greatly impaired.10 So, also, an interested witness who has been examined on a former trial, without being released, may be rendered competent on the subsequent trial by a release,

1 Matthews v. Coalter, 9 Mo. 705. 2 Burks v. Shain, 2 Bibb (Ky.) 341; Helms v. Franciscus, 2 Bland (Md.) 544.

3 Dole v. Erskine, 35 N. H. 503. 4 People v. Bruzzo, 24 Cal. 41. See also supra, §§ 42, 43.

5 Orphan's Court v. Woodburn, 7 Watts & S. (Pa.) 162.

6 Moore

9 National &c. Ins. Co. v. Crane, 16 Md. 260; Tallman v. Dutcher, 7 Wend. (N. Y.) 180; Neville v. Demeritt, 1 Gr. (N. J.) Eq. 321. But it has been held that a release made after the witness' testimony has been given, does not legalize such testimony. Wynn v. Williams, Minor (Ala.) 136; Ten Eyck v. Bill, 5 Wend.

v. Rich, 12 Vt. 563; (N. Y.) 55. Because he was interested

Fletcher v. Cole, 26 Vt. 170.

7 Pegg v. Warford, 7 Md. 582.

8 Barnes v. Ball, 1 Mass. 73.

at the time he testified. Kimball v. Gearhart, 12 Cal. 27.

10 Steele v. Payne, 2 A. K. Marsh. (Ky.) 187; Barnes v. Ball, supra.