
    
      John F. Corrie vs. William Calder & Geo. H. Milnor, co-partners.
    
    Assumpsit against C. & M. partners : the partnership had been dissolved: M., who was insolvent, was called as a witness for the plaintiff and consented to be sworn, C. objecting : — Heidi that M. was a competent witness for the plaintiff.
    One of two defendants, consenting to be sworn, though objected to by the other defendant, is a competent witness for the plaintiff.
    
      Before Withers, J., at Charleston, Spring Term, 1852.
    The report of his Honor, the presiding Judge, is as follows:
    “ This action was in assumpsit, and the plaintiff claimed a balance as due to him from the defendants, as partners in trade, for his services as clerk, in their store. The pleas were the general issue, and the statute of limitations. I inferred from the course of the case that the plaintiff claimed on a quantum meruit. I do not know whether there was a count upon a special contract,
    
      “ Samuel J. Corrie testified — That the defendants were engaged as partners in a country store, on Edisto Island, which was con■ducted under the style of ‘ Geo. H. Milnor.’ — -It was opened in 1841, and the partnership dissolved about 18 months before this trial. The plaintiff was employed as their clerk, bookkeeper and salesman, from 1841, to the dissolution. In 1848, the wit- ■ ness, being then in the service of Calder, was sent to the store on Edisto. He said the plaintiff was authorized to receive the cash for sales — the defendants boarded him — he did his duty well, as the witness believed. Had no other means but his salary.
    “ George H. Milnor — A co-defendant, was now called by the plaintiff, as a witness, and he was objected to by the other defendant (Calder) as incompetent, on the ground that he was a party to the record. The question of his competency presented the main struggle in the case. In the course of the case, I discovered that he was insolvent, (he said so,) audit was not doubtful that all his sympathies were with the plaintiff. These considerations no doubt led the defendant, Calder, stoutly to resist the introduction of his testimony. I held him competent for the plaintiff. He said that he and Calder formed a partnership in 1839, — that plaintiff was in the service of the concern in 1841, and so continued, selling goods and keeping books, till 1849: that he employed Corrie, and he was a competent clerk: That for the first year he allowed him $250, with boarding and washing, and he was worth that much. In 1842, $450 with board, and so on up to 1845, when being about to quit he allowed him $600 per year: that the plaintiff correctly charged in the books the sums so allowed him against the concern, and he saw the entries : he also charged himself with what he bought, and thus the account was kept every month : that he (witness) saw the footing of each account ivas correct, but he did not examine the items. That he credited himself with items not of his salary; for example, if he was entitled to a sum from another in a horse trade, he would charge the debtor on the book as debtor to himself, and when the money was collected he would credit himself with it. ‘Such transactions were with my knowledge, and I did not object. The concern could lose nothing unless the man charged should prove unable to pay. Such was the habit of business there.’ (I had difficulty in comprehending how such transactions could be worked into the partnership books.)
    “ The plaintiff sought to establish by this witness what was due, as balance, to him on the transaction of the business, and offered the books in evidence for the use of the witness on this point. They were objected to, as containing -only the written declarations of the plaintiff himself — although it was contended, that the ratification of them by the active partner, pending the partnership relation, and in the course of the business, made them the admissions of the partners, and so competent, I rejected the books, as well on the ground urged, as for the consideration that the case turned on the quantum meruit. I held the question propounded competent, however, to wit, c what balance existed in favor of the plaintiff on the 1st March, 1849.’ (By this the purport of the 2d and 3d grounds of appeal may be comprehended. I did, in fact rule the books, kept by plaintiff, incompetent— and if any testimony was derived from such a source — any which proceeded from the plaintiff himself, it was contrary to my ruling and understanding of the facts: at all events, the jury were directed to make the case turn on the quantum meruit. At the same time it may well be supposed, that the defendants derived more benefit from any thing that leaked out from the accounts in the books than the plaintiff did — for I presume thus only could the credit there allowed to them enure to their case.)
    
      “ To the above question, Milnor answered: I know nothing of what was the balance due, except as it appeared on the books. The plaintiff applied to me before the dissolution, and about that time, to pay him, and I promised to pay ‘ what was due him.’ (This testimony went to the statute of limitations.) At the conclusion of the concern there was a large unsettled balance due to the plaintiff. He never applied for a note, else I would have given him one. (Plaintiff here asked, £ what amount appeared to be due to the plaintiff on the books, in March, 1848?’ Upon objection for Calder, I overruled the question, because it was in substance the introduction of the books.) Milnor answered thus: The amount then acknowledged to be due was about $ 1000, in the neighborhood of $1000.
    
      “ Cross-examined. — I derived my knowledge from the books. Plaintiff kept them faithfully, but I do not think they gave a true account of affairs, because they were not written up, and did not contain certain materials of a full and true account, inasmch as notes taken and sent to Calder were entered, but collections by him were not returned and entered. I have had no reason to doubt the plaintiff’s entries in his own account. The affairs of the concern were referred to Whaley and Walker. I sent the plaintiff to attend Mr. Whaley in the arbitration, and never heard that either he or the plaintiff was obliged to abandon the books. I don’t remember I claimed a large sum of money from Calder, on the faith of the books, but in an answer in Equity claimed that Calder received more than he had accounted for — don’t remember what I swore to in my answer, though I said to Whaley, who drew it, I thought a large sum must be due to me, and so I really thought. On the arbitration, the books kept by the plaintiff were demanded and produced by me, as containing a true account of the affairs of the partnership. I kept the cash book, and the defect was mainly in that, for I received cash in town and neglected to enter it, and paid cash to Calder, which I neglected also to enter. I am insolvent; was sold out by the sheriff, at the suit of Calder — the result of the arbitration. So far as Corrie kept the books I think he did his duty faithfully: I have no knowledge what he received, except as appears on the books.
    
      “ In reply. — Plaintiff is brother-in-law to myself and Calder. A large amount of notes was sent to Calder, and statements were not rendered by him.
    “ Edioard Mitchell — said, he had been employed by Milnor;
    
      Corrie, plaintiff, was then there, seemed faithful and competent. Saw Calder there once or twice, at plaintiff’s desk, books open before them — could not say whether Calder examined them.
    “ A portion of plaintiff’s claim was for services rendered in aid of the arbitration : as to this,
    “ Wm. Whaley, Esq. — said, I was joint arbitrator with Walker. Defendants made an agreement to pay to plaintiff $3 per day to assist — according to my docket-book he served 132 days at $3 — $396.
    “ Cross-examined. — I mean the matter, occupied 132 days. The books were to be balanced, and the arbitrators then called. I considered plaintiff to be in continual service. Calder’s book contained debits and credits of cash sent from the Edisto concern : There was no contradiction of it, and according to that, Milnor fell in debt. I did not examine Milnor’s books generally. His cash book did not show credits to him equal to those allowed by Calder’s. (An exhibit “ A.” filed in Chancery, was introduced by the defendant, as my notes have it, and without objection, showing outstanding debts of the concern to $>27,862 72, excepting two items.) Cash and note books were kept irregularly.
    “ FOR DEFENCE.
    “ James Me Gibbon. — I was clerk for Calder, in the arbitration, and handed to plaintiff an account of debts due by the concern, (being exhibit “A.” aforesaid,) — [a memorandum book was produced to witness.] He continued — X showed the latter to the plaintiff. The object of the book was to show the whole indebtedness of the concern — to ascertain the whole in aid of the arbitrators. Plaintiff saw the book several times — its items were not taken from Milnor’s books. It contained no claim by Corrie, nor did he object on that account, though he had full time to examine, nor did he ever intimate to me that he was a creditor.
    “ Cross-examined. — I acknowledge my handwriting, on a paper, [which was produced to witness containing a statement of the affairs of the concern, taken from the books of Milnor & Calder. If this be the paper referred to in the 3d ground, I have to observe, that I remember no objection, nor is any noted.] The plaintiff very seldom attended in the examination of the affairs. The statement now produced was not made in conjunction with the plaintiff, but he took a copy of one containing amount appearing to be due to him. The statement was made to’1848 — balance $1036.
    
      “ In reply. — Books I abstracted were partly in the handwriting of plaintiff. Many accounts charged as due by concern, were paid, and hardly one rendered by the creditors correspond with charge on books. Some were paid. Plaintiff never mentioned his demand prior to the settlement. Once, long after, he did. I prepared statements for the arbitrators. All Corrie did was to copy mine.
    
      “ Several positions taken in the grounds of appeal have already been referred to, sufficiently to explain their purport, I presume. As to the fourth, I apprehend the first witness introduced by the plaintiff laid the foundation for an implied assumpsit, prima facie, on a quantum meruit. I need not express an opinion as to any benefit the plaintiff may claim from the case of Fitch <Sp Hillrary, 1 Hill, 292. I do not suppose we had before us the plaintiff’s account of mutual debits and credits. But if I erred in excluding the books, as evidence binding on both defendants, (which perhaps I did) a case might then appear for this plaintiff, as to which the authority cited might be stringent in his behalf.
    “ I must be indulged in a few observations upon the leading question, to wit, the competency of Milnor.
    
      “ I am quite aware that this has been a vexed question, and it is common, in law books, to specify, under the head of ‘ incompetent witnesses,’ parties to the record. It is important to enquire, what is the foundation of the rule ? Is it anything else than the reason of .the rule of evidence which teaches, that a certain, direct, pecuniary interest in the event of the suit, or the record as matter of evidence for the witness called, shall exclude him as incompetent ? That is to say, the witness has such an interest to favor the success of the party who calls him. It is quite common to examine the Ordinary in behalf of the plaintiff, where the name of that officer is used in an action on an administrator’s bond, for the use of distributees. Why? Because he is a nominal party merely, and has no disqualifying interest. Then the maxim is not stubborn, universal and unyielding, that one who is party to the record is, ex vi termini, an incompetent witness. So it is elementary and familiar, that a witness may speak when his interest is adverse to the success of him who calls him, or is indifferent between the parties.
    “ The doctrine is, ‘ nemo testis esse debet in propria causa? Says Mr. Best, in his ‘Principles of Evidence,’ pp. 192-3, ‘according to the best authorities this incompetency is founded solely on the interest which the parties to the suit are supposed to have in it; and consequently, when it appears they have none, or that which they ever had has been removed, their evidence ought to be received; as for instance, when a defendant has suffered judgment by default, or had a nolle prosequi entered,’ &c. ‘ Where, therefore, the Court sees there is no evi-
    dence against some of the defendants, it will in its discretion direct a verdict to be taken for them at once, before the others are called on for their defence ; and a like practice is followed when the evidence of the person, whose name appears on the record as defendant, is required by the plaintiff.\ or the crown.’ For these doctrines he cites Taylor’s Evidence, secs. 955-56-58; also Worral and Jones, 20 Eng. Com. Law, 177; Pipe vs. Steele, found in 42 Eng. Com. Law, 888.
    “ The cases from Com. Law reports I have examined, and think them aptly cited for the propositions advanced. I forbear any abstract of them here, for they can be referred to. In each the defendant called, had suffered judgment by default, which authorizes the remark, I think, that if he were competent, a multo fortiori Milnor was, for his evidence went to procure a judgment against him, that might otherwise never be obtained. Each case was deliberately argued and adjudged, reasoned on principle, the last confirming the first, and both overruling whatever to tbe contrary had preceded them. Meggeit vs. Finney and Jones, 4 Strob. 220, contains much that, though collateral, may be auxiliary to the general reasoning pertaining to the question, on either side.”
    The defendant, Calder, appealed, and now moved for a new trial on the grounds
    1. That the defendant, G. H. Milnor, being a party to the record, ought not to have been admitted to testify without the consent of his co-defendant.
    2. That the testimony of G. H. Milnor, as to the amount due the plaintiff, was derived wholly from the books kept by the plaintiff, and ought to have been excluded.
    3. That having rejected the original books as evidence, a copy of a part of them ought not to have been admitted to prove the amount due in 1848.
    4. That the testimony of Milnor, to take the case out of the statute of limitations, was admitted before the existence of any debt was established by others than himself.
    5. That his Honor ought to have granted the motion to strike out the testimony of Milnor, (as he was an incompetent witness,) which was made at the termination of the evidence.
    
      J. M. Walker, for the appellant.
    
      Porter, contra.
   The opinion of the Court was delivered by

O’Neall, J.

This case will be decided upon the first ground alone, for all the others, except that relating to the books, depend upon it; and that, in reference to the admissibility of the books, can not affect the case, inasmuch as the Judge tells us, he excluded them.

I think, the defendant Milnor, called by the plaintiff and consenting to be sworn, was a competent witness for the plaintiff.

It is very true, that in many of the elementary works, it is laid down, that he cannot be a witness. For example, in Gilbert on Evidence, 243, it is said, “ from this rule” concerning interest a corollary may be deduced, that the plaintiff or defendant cannot be a witness in his own cause: for these are the persons that have a most immediate interest: and it is not to be presumed that a man, who complains without a cause, or defends without justice, should have honesty enough to confess it.”

The very reasons which are thus assigned for the exclusion being removed, shew that ralione cessante cessat ipsa lex. The witness, offered in this case, is to swear against his own interest, and he comes forward voluntarily to admit that his defence is without justice.

In 1 Greenleaf Ev. § 354, the learned author says, the better opinion is against the admissibility of one of several plaintiffs or defendants as a witness. Notwithstanding my great respect for the opinions of this eminent jurist, I am constrained to hold differently.

Phillips on Evidence, p. 69, sec. 2, puts the exclusion on the grounds of either having “ a certain benefit or loss, or from being liable to costs.” Here the party offered to be sworn is by his own testimony to have no benefit, he is to charge himself with both debt and costs. The reasons of the exclusion here given are all taken away: and hence the witness not being within the reason of the rule may be examined.

The note 129, at page 142 of 2 Phillips on Evid. by Cowen and Hill, fully sustains the proposition, but in the opinion of the annotators, the plaintiff might be sworn under the qualification stated in the outset of this opinion.

Norden vs. Williamson, 1 Taun. 378, is a direct authority on this point. O. J. Mansfield there said, “ I know no reason, why if the defendant is willing to admit him, and the plaintiff is willing to give evidence against himself, he should not be suffered to do so,” and accordingly he was admitted.

It may, however, be tested in another way. The defendant Milnor is called here, to prove acts and declarations of himself, while a partner. There can be no doubt, that such acts and declarations, if proved by another, would charge the firm. If the defendant’s admissions made during the continuance of the firm are evidence, I confess I do not see why he may not give to them the higher sanction of his own oath.

It has been supposed, that there is a rule of policy, which would exclude such a witness. I am not aware of it. The policy of Courts of Justice is to ascertain truth, and mete out the results of justice, as sanctioned by law. The admission of the party under the qualification already stated, is within such policy. But our Courts have not felt themselves fettered by any such rule of policy, as is supposed by the defendant Calder.

In Price, Ordinary, (it should be Rice, Ordinary) vs. Gregory, (4 McC. 261) the plaintiff (who was nominal — the real plaintiff having on the record acknowledged himself to be liable for costs) was admitted as a witness to prove the factum of a bond executed to himself.

In Kendrick vs. Campbell and Clark, 1 Bail. 522, one of the defendants was admitted by the consent of all concerned and sworn as a witness.

I am hence satisfied that the Judge below did not err in admitting the defendant Geo. H. ’Milnor, to testify. The motion is dismissed.

Wardlaw, Frost, Withers, WhitNer and Glover, JJ., concurred.

Motion dismissed.  