
    Alvin Flint v. Ebenezer S. Allyn & others.
    The real party to a suit at law, although not the party of record, cannot be compelled to testify.
    
      Qutzre — Whether the exclusion of the party of record from giving testimony, and his privilege from being called by the opposite party, do not rest exclusively upon interest. ¡
    
    Assumpsit, on a promisory note. — Plea, non assumpsit. Issue to the court.
    On the trial in the county court, the plaintiff read in evidence, without objection, the note declared upon, and rested his case.
    The defendants, to support the issue on their part, and to disprove the right of recovery upon the note, called Joseph F. Brown as a witness, who, being sworn, objected to testifying in the cause, alleging, as the ground of objection, that the note aforesaid was taken for his benefit; that he had always been, and still was, the owner thereof, and that he had instituted, and was then prosecuting, the present suit at his own expense and for his own benefit. The statement of the witness was not controverted; but the defendants insisted that they were, nevertheless, ;entitled to his testimony. But the county court decided that he was not bound to testify. No further evidence having been given, or offered, the issue was found, and judgment rendered for the plaintiff. To which decision the defendants excepted.
    
      E. G. Johnson and Maech fy Smalley, for the defendant,
    cited 1 Phil. Ev. 34. 1 Stark. Ev. 135, and cases there cited. King v. Melville, 1 Hale’s Law Journal, 223.
    
      John H. Kimball, for plaintiff,
    cited 1 Swift’s Dig. 745. 2 Starkie’s Ev. 750. 3 id. 1061, note I.
   The opinion of the court was delivered by

Redfield, J.

— The only question in this case is, whether the defendant can call upon the real plaintiff, as a witness in the case, and he be compelled to testify ?

It is well settled in this state, I apprehend, that no inter-test in the event of the suit, short of being the real party, will excuse one from giving testimony, when called upon to do so.

It is equally well settled that the real party, although not the party of record, cannot be .compelled to testify. White v. Everest, 1 Vt. R. 181. This rule is uniformly adhered to in Westminster Hall. King v. Woodburn, 10 East, 395. It is there now considered that the party in interest, and the party of record even, may waive the privilege, and when called upon by the opposite party, give testimony; and that such testimony must be received, although objected to by others having an interest in the subject, if the party is called upon to give testimony against his interest. Worrall v. Jones, et al. 7 Bing. 395. (20 Eng. C. L. 177.) Norden v. Williamson, 1 Taunt. 378. Mr Starkie, in the 6th Ed. of his treatise on Evidence, cites the latter case, 2 Vol. 580, note e. And also Pewtris v. Granger, 3 Camp. 177, as being to the same point; but thinks these cases were decided upon peculiar grounds, and that the general rule, excluding the party of record from giving testimony, should not be infringed. In Connecticut, the party of record is allowed to testify against his own interest, when called by the opposite party. Cowles v. Whitmore, 10 Conn. R. 124. Woodruff v. Westcott, 12 do. 134. Johnson v. Blackman, 11 do. 342. But in all these cases, it is held that he can never be compelled to testify. We have extended the same privilege to the party in interest. In New York the same rule is adopted. Morrison, v. Lamb, 7 Cowen, 174. In Willing et al. v. Consequa, 1 Pet. R. 307, it is said that the foundation of the rule that a party cannot be a witness, is interest; and when all interest is removed, the objection ceases. If so, then with great propriety, the party in interest is regarded as the real party in the suit.

Judgment affirmed.  