
    Lewis Fagin vs. Peter Cooley's Adm’r.
    A deposition cannot be read in evidence on a trial at law, unless the deponent would be a competent witness if personally present in Court.
    The heirs of a deceased person are not competent witnesses in a suit in which the estate of the decedent is interested, unless it be shown affirmatively, that they have no interest in the event of the suit.
    This is a Wb.it of Eebob to the Supreme Court of Hamilton County.
    The original action was commenced in the Court of Common Pleas, by Cooley, in'his lifetime, against Fagin.
    The declaration is in assumpsit, and contains the common counts. To this declaration, a plea of the general issue was interposed by the defendant below.
    
      After trial in the Court of Common Pleas, the cáse was appealed to the Supreme Court; and during the pendency of the case in the latter Court, the death of Cooley was suggested, his administrator was made party, according to the statute in such case made and provided.
    At the last Term of the Court in Hamilton county, the case was submitted to a jury, and a verdict returned for the plaintiff, upon which judgment was entered..
    ■A bill of exceptions was then tendered by the defendant below, now plaintiff in error.
    This bill of exceptions shows that on the trial of the case, the deposition of Calvin C. Cooley was offered in evidence, by the defendant in error. This deposition was taken during the lifetime of Peter Cooley, but it was now objected to, on the ground that the deponent was the son and heir at law of Peter Cooley, deceased, and as such heir was interested in the event of the suit, although not interested at the time the deposition was taken. The objection was overruled by the Court, and the deposition read to the jury. To this opinion of the Court, the plaintiff in error excepted.
    The error assigned and relied upon, is,'that the Court in admitting. this testimony, mistook the law.
    
      Storer fy Gwynne, for Plaintiff in Error. "
    The original action here sought to be reviewed, was brought by Cooley against Lewis and Hiram Fagin. Hiram Fagin and Peter Cooley, subsequently deceased, and Nathaniel Montgomery, Administrator of Peter Cooley, was made party plaintiff. On the trial of the cause, the deposition of C. C. Cooley, a son of Peter Cooley, was admitted by the Court, and was, in truth, the sole evidence for the plaintiff. In admitting this deposition, we claim the Court erred. It is conceded that the deposition was taken before Peter Cooley’s death.
    This witness/being the son, was entitled, in whole or in part, as distributee, to his father’s estate. No will was made by the father; no evidence was offered by the plaintiff that the fathet",s estate was insolvent. The testimony of the witness, theref0l-g; J,a(] tim effect to transfer money into his own pocket. If presented on the stand to testify, he would clearly have been incompetent. Shepard v. Ward, 8 Wend. Rep. 542; Hampton v. Garland, 2 Hayw. Rep. 147.
    The rule in England is well established, that the deposition of a witness who becomes interested in the event of the suit, cannot be admitted in a case at law. 1 Phil, on Ev. 364; Bull. N. P. 242; Tilley’s case, 1 Salk. 286; Balter v. Fairfax, 1 Str. 101; Holcroft & Smith, 1 Eq. Cas. Abr. 224. Such depositions have sometimes been read in cases in Chancery. 2 Vern. 699; S. C. 1 P. Wms. 287; 2 Atk. 615; 2 Ves 42. But no case can be produced in England, where they have been permitted in the trial of an action at law.
    In Irwin v. Read, 4 Yeates Rep. 512, the deposition of a witness in life, who became interested after bringing the suit, and after giving his deposition, was held to be inadmissible; and in Chess v. Chess, 17 Serg. & R. 412, this rule was held to be clearly settled in Pennsylvania. It cannot, we suppose, make any difference in the rule, whether the witness does or does not become actually a party on the record, as administrator, if he is the party really interested as distributee. In 1 Greenleaf on Ev. 206, Mr. Greenleaf makes some remarks in favor of admitting the deposition at law, but he admits no express authority has been found for reading the deposition. As was said in 4 Yeates, 512, the rules of Chancery, as to evidence, have never been adopted at law, otherwise the conscience of the defendant might be purged at law.
    In Gold v. Eddy, 1 Mass. Rep. 1, the deposition of a party taken in the original cause, was admitted in the review of the case, after some hesitation, on the ground that the law required the same testimony to be heard on the review, as was offered in the original cause.
    In Jones v. Scott, 2 Ala. Rep. 58, the deposition, taken before the interest was acquired, was excluded. In Le Baron v. 
      Crombie, 14 Mass. Rep. 236, the Court, per Parker, C. J., held that the testimony given by a witness in a former trial of the same case, the witness having been in the mean time of an infamous offence, was not to be received, and recognized the rule above stated as prevailing in England, that a supervening interest excludes the deposition.
    Apart from other wide differences between the practice at law and in Chancery, this distinction may be pointed out between depositions, in tribunals acting under the different systems. All evidence in Chancery is by deposition. The evidence of a witness in Chancery, stands as of the day when it is taken, to be used whenever the hearing of the cause comes on. A deposition at daw, is only admissible in certain cases, where the witness is ancient or very infirm, resides out of the county, or intends to leave before the time of trial. When the deposition is taken, it is not certain that it will, or can be used on the trial; it is, in reality, taken de bene esse-. If, at the trial, the witness has ceased to be infirm, or is within the county, he must be present in Court. This fact shows, that the deposition speaks as of the day of trial, and the right of the witness to testify, must be governed by his interest at that time.
    If the witness happens then to be a non-resident, or out of the county, he certainly stands in no better position than if he were present. If present, he could not testify; and yet it is said that, although he cannot open his mouth, something before taken from his lips shall be read to the jury, perhaps in his presence. This is placing the wi|iess as if he were dead — recognising a death, such as no aüthority has contemplated. The doctrine is an interpolation on the law.
    Professor Greenleaf has carried the doctrine to its limit; for certainly, if it prevails, whatever evidence the interested witness gave orally on a former trial, may be offered in a subsequent trial, in his own behalf, if any one can be found who remembers it. The attempt to go as far as this, has, we venture to say, never been made.
    
      It will .be borne in mind, that the position in which C. C. Q00]e„ stands, has not been the act of the defendant, He has J assumed it, to be sure, by the act of the law, but we have a right to say, not involuntarily; for he might very easily have released his interest, and made himself competent. But he does not do so.
    We admit that a witness cannot deprive a party of his testitimony, by rendering himself incompetent. This rule goes upon the principle that a door would thus be opened to fraud and injustice. It does not apply where the witness becomes a party interested in, and who receives part of the fruits of the suit. Nor does it extend to a case where the interest devolves on the witness by act of law, or by an accident happening without his agency, 2 J. J. Marsh B.ep. 332-3; 1 Greenlf. on Ev. <§> 167; or where the interest is acquired bona fide, in the usual and lawful course of business. 1 Greenlf. on Ev. <§> 167, 418. -If a witness acquires a subsequent interest, by the act of the party producing the witness, he is disqualified., 1 Greenlf. on Ev. <§> 418.
    The position of Professor Greenleaf, on this subject, is contradictory. While, in § 167, be treats of those cases'in which proof of former testimony of a witness may be admitted, and admits, that if he becomes interested in the subject matter bona fide, he cannot testify, unless he releases his interest, and that the same principle applies to an interest arising by operation of law, upon the happening of an uncertain event, such as the death of an ancestor, he yet, in ,¡§> 168, intimates that a former deposition should be received in a case at law. Surely, the same rule which admits the deposition, would admit proof of what the witness had before stated orally, while under oath.
    Had C. C. Cooley, in this case, been presented on the stand as a witness, we might have examined him on his voire dire. Having then disclosed his interest, he must have been rejected ; and so, we think, should his testimony have been, whether oral or written.
    
      
      Fox French for Defendant in Error.
    We maintain the witness had no interest in the result of the suit at the time his deposition was given, his father was then living, and of course he had no more interest in the result of the suit than any other child or servant has in his father’s or mother’s business. 1 Greenleaf Ev. § 386.
    The interest to exclude a witness must be a present, certain and vested, not an uncertain and contingent one. Hence “ the heir apparent to an estate is a competent witness in support of the claim of his ancestor.” 1 Greenleaf Ev. <§> 390.
    The interest must exist at the time the witness is examined; a subsequently acquired interest is not sufficient.
    This must of course be the case where the witness is examined in open Court; the same rule holds where a deposition is taken. The reason why an interested witness cannot testify is, because the law will not hold out any temptation to the witness. Of course that reason only holds where the interest is vested and certain when the. witness is examined. That is the time when he will, if at any time, be affected by his interest. If he has no interest when examined of course it cannot affect his testimony.
    In >§> 168, 1 Greenleaf Ev., this question is discussed, and the writer shows that it is well settled that a deposition taken in a Chancery cause is admissible if taken while the witness was not interested, and says “ the analogies of the law are altogether in favor of admitting the evidence.” He also says that in 17 Searg. & Rawle 412, it was conceded there is no reason for any distinction, but the practice had been otherwise.
    On the same principle we maintain that our practice in Ohio has always been to admit the deposition if taken while the witness had no interest in the result of the suit. We have then the practice established in Ohio at law.
    The reason of the thing itself, and the practice in Chancery, all uniting to sustain the opinion of the Court delivered on the Circuit, viz : “ That the deposition of a party taken when he had no interest may be read in- the same cause after he acquires an interest in the result of the suit by the death of his father.”
    But we maintain farther, it was the duty of the plaintiffs in error to have shown that the witness was in fact interested in the result of the suit. We show he was not interested at the time; if the plaintiffs object to the testimony, they must show that the witness had since become interested ; is that shown merely by proving him to be a child of the original plaintiff?
    By, the law of Ohio the widow and the children are entitled to an allowance for a years support, and if a child can claim any thing, as heir, must he not first show the estate was solvent and more than sufficient to pay the allowance to the widow, &c. If the heir must show these facts in order to recover, must not any other person, who attempts to show an interest, prove the same facts ?
    We claim, therefore, that the deposition was clearly admissible under both views of the case. '
   Hitchcock, J.

The simple question which arises in this case is, whether in the trial of an action at law, the deposition of a witness, which was taken while the witness was disinterested, can be read in evidence, if at the time of trial he is interested in the result of. the suit. That under such circumstances, a deposition might be read on the hearing of a case in Chancery, I suppose there can be no doubt. The authorities are numerous to show that in Chancery, an interest cast upon the witness, subsequent to his giving his deposition, will not of necessity operate to exclude that deposition from the consideration of the Court. In the 168th § of the first volume of Greenleaf’s Evidence, the author says “If in cases of disqualifying interest, the witness has previously given a deposition in the cause, the deposition may be read in Chancery, as if he were since deceased, or insane, or otherwise incapacitated. It may also be read upon the trial at law, of an issue out of Chancery. In other trials at law, no express authority has been found for reading the deposition; and it has been said that the course of practice is otherwise; but no reason is given, ° the analogies of the law are altogether in favor of the evidence.”

It was in consequence of this dictum that I advised the admission of the deposition excepted tp in the case now before the Court, and afterwards for the purpose of bringing the question before a full Court, united in the allowance of a writ of error. It is true as the learned author says, that no express authority had been found for reading the deposition under such circumstances, but numerous authorities are found establishing a contrary rule. Some of these authorities are cited in the argument of counsel for the plaintiff in error, and would seem to be conclusive upon the point; and there is, to say the least of it, some reason why a different rule should prevail. In trials at law, witnesses must, as a general rule, be examined in open Court. It is only under peculiar circumstances that depositions can be read. If Calvin C. Cooley had been within the jurisdiction of the Court, and offered as a witness, he must have been excluded on the ground of interest; and it would seem to be inconsistent to admit the deposition of a. witness, who could not, at the time the deposition is offered, be admitted to testify. The admission or rejection of the testimony would be made to depend, not upon the competency of the witness, but upon the fact whether he was or was not within the jurisdiction of the Court. Upon consderation the Court are of opinion that it is safer to rely upon the uniform authority of adjudicated cases, rather than upon the opinion of an elementary writer.

But it is urged by counsel for defendant in error, that the interest of the witness in this case is not such as to exclude him, because from ought that appears, the estate of the father may be insolvent, and it is urged that it was the duty of the objector to show that it was not insolvent. , We think otherwise. Upon the death of the father, his heirs acquire a direct interest in his estate. It is the same interest which he had in his lifetime, although their claims must be postponed to those of creditors. In the prosecution of a suit, either in favor of or against the personal representatives, if any of the heirs are offered as witnesses, the law will presume them to be interested until the contrary appears.

The Judgment of the Supreme Court is reversed, and the cause remanded to the county of Hamilton for further proceedings.  