a party to the suit, his assignor or grantor, and in the absence of the decedent, or if any witness shall, on behalf of the executor, administrator, or heirs, testify to any conversation or admission of a party to the suit, his assignor or grantor, as having been had or made in the absence of the deceased; then the party against whom such evidence is adduced, his assignor or grantor, shall be competent to testify concerning the same matter. No person who shall have acted as an agent in the making or continuing of a contract with any person who may have died, shall be a competent witness, in any suit upon or involving such contract, as to matters occurring prior to the death of such decedent, on behalf of the principal to such contract, against the legal representatives or heirs of the decedent, unless he shall be called by such heirs or legal representatives. And in such case he shall be a competent witness only as to matters concerning which he is interrogated by such heirs or representatives. When, in any case, a person shall be charged with unlawfully taking or detaining personal property, or having done damage thereto, and such person by his pleading shall defend on the ground that he is executor, administrator, guardian, or heir, and as such has taken or detains the property, or has done the acts charged, then no person shall be competent to testify who would not be competent if the person so defending were the complainant; but when the person complaining cannot testify, then the party so defending shall also be excluded."1 "When the husband or wife is a party, and not a competent witness in his or her own behalf, the other shall also be excluded; except that the husband shall be a competent witness in a suit for the seduction of the wife, but she shall not be competent." 2 "In all cases in which executors, administrators, heirs, or devisees are parties, and one of the parties to the suit shall be incompetent, as hereinbefore provided, to testify against them, then the assignor or grantor of a party making such assignment or grant voluntarily, shall be deemed a party adverse to the executor or administrator, heir or devisee, as the case may be: Provided, however, That in all cases referred to in the preceding sections, the objection to the competency of such witnesses may be waived. Or the Court may, in its 2 Ibid. § 501. 1 Ibid. § 500. discretion, require any party to a suit, or other person, to testify; and any abuse of such discretion shall be reviewable upon appeal."1 "In all actions by an executor or administrator on contracts assigned to the decedent, when the assignor is alive and a competent witness in the cause, the executor or administrator and the defendant or defendants shall be competent witnesses as to all matters which occurred between the assignor and the defendant or defendants, prior to notice of such assignment."2 "No want of belief in a Supreme Being or in the Christian religion shall render a witness incompetent; but the want of such religious belief may be shown upon the trial. In all questions affecting the credibility of a witness, his general moral character may be given in evidence."3 "Any fact which might, heretofore, be shown to render a witness incompetent, may be hereafter shown to affect his credibility."4 As early as 1852 all objections to the competency of a witness by reason of crime or interest, were removed by statute; and where one party called the other as a witness (which he could do), who testified to new matter, pertinent to the issue, but not responsive to the questions put to him, the party calling him could testify in respect to such new matter.6 In every case it must be made to appear in some legal way, that the alleged decedent is dead, before an objection can be sustained to the competency of a party to testify as to a matter which occurred prior to his assumed death.7 And where the deposition of the deceased person is admitted in evidence, the other party may testify on all points contained 1 Ibid. § 502. 2 Ibid. § 503. 8 Ibid. § 505. Section 504 relates to expert testimony only. 4 Ibid. § 506. 5 Muir v. Gibson, 8 Ind. 187. 6 Thompson v. Shæffer, 9 Ind. 500; Draggoo v. Draggoo, 10 Ind. 95. For matters of practice as to examining an adverse party on interrogatories, see McPheeters v. McPheeters, 6 Blackf. 221; Barnard v. Flinn, 8 Ind. 204; Hubler v. Pullen, 9 Ind. 273; Swift. Ellsworth, 10 Ind. 205; Derning v. Patterson, Id. 251; Johnson . Cox, 12 Ind. 362; Cleveland 2. Hughes, 12 Ind. 512; French v. Venneman, 14 Ind. 282; Lung v. Sims, 14 Ind. 467; Railsback v. Koons, 18 Ind. 274; Smith v. Rosenham, 19 Ind. 256. 7 Hodgson v. Jeffreys, 52 Ind. 334. in such deposition.1 Declarations of the deceased, in his own favor, are inadmissible.2 Where the claim sued on is based on a contract made with the administrator, the party holding the claim is a competent witness in his own behalf.3 In examining witnesses in these cases, an attempt, indirectly, to draw from the witness that which he is prohibited from directly stating, is not allowable.1 § 113. Iowa."Every human being of sufficient capacity to understand the obligation of an oath, is a competent witness in all cases, both civil and criminal, except as herein otherwise declared. . . ." 5 "Facts which have heretofore caused the exclusion of testimony, may still be shown for the purpose of lessening its credibility."6 "No person offered as a witness in any action or proceeding in any court, or before any officer acting judicially, shall be excluded by reason of his interest in the event of the action or proceeding, or because he is a party thereto, except as provided in this chapter."7 "No party to any action or proceeding, nor any person interested in the event thereof, nor any person from, through, Hatton v. Jones, 78 Ind. 466. Bristor v. Bristor, 82 Ind. 276. 3 Voiles . Voiles, 51 Ind. 385. 4 Cottrell v. Cottrell, 81 Ind. 87. As to the competency of the personal representative or guardian to testify, see Littler v. Smiley, 9 Ind. 116; Markel v. Spitter, 28 Ind. 488; Goodwin r. Goodwin, 48 Ind. 584; Dembo r. Wright, 53 Ind. 226. When the widow is competent, see Pea v. Pea, 35 Ind. 387; Noble r. Withers, 36 Ind. 193; Tracy r. Kelley, 52 Ind. 535; Dembo v. Wright, 53 Ind. 226. Applications of the statute in actions on bills and notes. Walker v. Clifford, 21 Ind. 123; Skillen . Skillern, 41 Ind. 260; Jenk s v. Opp, 43 Ind. 108; Milam r. Milam, 60 Ind. 58. Actions relative to read property, generally. Gavin r. Buckles, 41 Ind. 528; Hodgson v. Jeffreys, 52 Ind. 334; Howard v. Howard, 69 Ind. 592; Harding v. Elzey, 88 Ind. 321. Foreclosure suits. Hoadley v. Hadley, 48 Ind. 452; Abshire v. Williams, 76 Ind. 97. Partition against surviving partner. Dodd v. 5 Rev. Code 1880, p. 857, § 3636. As to criminal cases, see Infra, Chap. IX. 6 Ibid. § 3637. or under whom any such party or interested person derives any interest or title by assignment or otherwise, and no husband or wife of any said party or persons shall be examined as a witness in regard to any personal transaction or communication between such witness and a person at the commencement of such examination, deceased, insane, or lunatic; against the executor, administrator, heir at law, next of kin, assignee, legatee, devisee, or survivor of such deceased person, or the assignee or guardian of such insane person or lunatic. But this prohibition shall not extend to any transaction or communication as to which any such executor, administrator, heir at law, next of kin, assignee, legatee, devisee, survivor, or guardian, shall be examined on his own behalf, or as to which the testimony of such deceased or insane person or lunatic shall be given in evidence."1 66 Any person may have his own deposition, or that of any other person, read and used as evidence in all cases where his evidence would be incompetent by the provisions of the preceding section, by causing such deposition to be taken, either before or after suit brought, during the lifetime or sanity of the person against whom, his executor, heir, or other representative, the same is to be used: Provided, such deposition shall have been taken and filed ten days prior to the death or insanity of such person. If after suit brought, such deposition may be taken in the usual manner; if before, then the same may taken de bene esse, as provided by law."2 "Neither the husband nor wife shall in any case be a witness against the other except in a criminal prosecution for a crime committed, one against the other, or in a civil action or proceeding, one against the other; but they may in all civil and criminal cases be witnesses for each other."3 "Neither husband nor wife can be examined in any case as to any communication made by the one to the other while married, nor shall they, after the marriage relation ceases, be permitted to reveal in testimony any such communication made while the marriage subsisted."4 "No practicing attorney, counsellor, physician, surgeon, minister of the gospel, or priest of any denomination, shall be allowed, in giving testimony, to disclose any confidential 1 Ibid. § 3639. 3 Ibid. § 3641. communication properly intrusted to him in his professional capacity, and necessary and proper to enable him to discharge the functions of his office according to the usual course of practice or discipline. Such prohibition shall not apply to cases where the party in whose favor the same are made waives the rights conferred."1 "A public officer cannot be examined as to communications made to him in official confidence, when the public interests would suffer by the disclosure."2 "The judge of the court is a competent witness for either party, and may be sworn upon the trial. But in such case it is in his discretion to order the trial to be postponed or suspended and to take place before another judge."3 In construing prior statutory provisions similar in character to § 3639, the courts have held that the interest which will disqualify a witness in an action in which an executor or administrator is a party, must be present, certain, and vested. If the interest is of a doubtful character, it goes to his credibility only. Thus the restrictive provision does not apply to nor exclude the testimony of a witness who may have been, at some past time, the holder of a mere equitable interest in the property in controversy;5 or that of a son who had been repaid a loan made to his father (the deceased), in an action by the father's executors against one for whose benefit the money borrowed from the son had been expended. So also in an action to enforce a judgment on a promissory note in favor of an estate against the indorser, the principal debtor was held competent to testify as to transactions between the indorser and the deceased, as he had nothing to gain or lose, whatever the result might be.7 And the plaintiff's attorney, in an action against an administrator, was held competent, there being no agreement for a contingent fee, although the attorney did not know that he would be paid anything if the action failed. Again, the provision does not apply when the deceased was only a trustee in regard to the matter in controversy, and the cestui que 1 Thid. § 3643. 2 Ibid. § 3644. 3 Ibid. § 3645. Wormley v. Hamburg, 40 Iowa, 22. S. P. Goddard v. Leffinwell, Id. 249. 5 Zerbe v. Reigart, 42 Iowa, 229. 6 Bixley v. Wormley, 44 Iowa, 347. Compare Wormley v. Hamburg, 46 Id. 144. 7 Fuller v. Lendrum, 58 Iowa, 353. Berge v. Rhinehart, 36 Iowa, 369. |