
    *Carter v. Hale & al. Same v. Watson’s Adm’r.
    July Term, 1879,
    Wytheville.
    Witnesses. — In an action of debt "by C against H and I, the surviving obligors in tbe bond sued on, tlie defendants plead set off, and file a list of bonds de-
    
      These were actions of debt in the circuit court, of Carroll county, both of them founded on the same bond. One was against Ridden L. Hale, the principal, and Ira B. Collrane, one of the sureties in a bond to the plaintiff, Thomas W. Carter, for $3,200, dated the 10th of October, 1857, and payable in two years, executed by said Hale and Coltrane and John Watson, another surety. Watson being dead, the second action was against his administrator.
    The pleadings and issues in both cases were the same, and were “payments” and a special plea with a list of set offs. These consisted of four notes amounting to $3,309.43, which the plea alleged had been transferred and delivered by Hale to the plaintiff before the bond became due, which the plaintiff accepted and undertook to collect and apply the proceeds to the payment of the bond sued upon; and that he had collected of these notes enough to discharge the bond. *The causes came on to be tried on the. 28th of April, 1876, when the defendants, to sustain the issues on their part, offered the defendant Hale as a witness. The plaintiff objected to his competency on the ground that Walton, one of the obligors in the bond, being dead, the plaintiff was incompetent to testify, and, therefore, the other parties to the bond were incompetent. But the court overruled the objection, and admitted the witness to testify; holding that while said witness was incompetent to testify as to the execution of the bond, he was a competent witness to prove any subsequent transactions had between himself and the plaintiff involved in the pleas upon the issues joined. And the plaintiff excepted.
    Hale having been admitted as a witness, he was requested by the counsel for the defendants to “state what transactions, if any, took place between the plaintiff, Thomas W. Carter, and yourself, after the bond sued on was executed, in relation to the payment or satisfaction thereof.” To which question and to the witness answering the same, the plaintiff objected, on the ground of the incompetency of the witness; but the court overruled the objection and permitted the witness to answer. The answer referred to the transfer to the plaintiff of the notes mentioned in the special plea, and what had passed after the transfer between himself and the plaintiff. The plaintiff excepted to the ruling of the court permitting said question and answer.
    The jury found verdicts for the plaintiff in each case for $48.88, and the court, overruling a motion for a new trial, rendered judgments in accordance with the verdict. And Carter thereupon obtained writs of error in both cases.
    Robert Crockett, for the appellant.
    J. A. Walker, for the appellees.
    
      
      Witnesses. — See also Hall v. Rixey, 84 Va. 790; 4 Min. Inst. (2nd Ed.) 767 et seq; Hoge v. Turner, 96 Va. 631; Brock v. Brock, 92 Va. 173.
      In Hall v. Rixey, supra, Lewis, P„ in delivering the opinion of the court said: “In Carter v. Hale, 32 Gratt., 115, it was held, upon the authority of previous decisions, that in an action upon a bond, 'the subject of investigation,’ within the meaning of the statute, is the bond, and that the test of competency of a party is not the fact to which such party is called to testify, but the contract or other transaction wtoich is ttoe sutoject of investigation, and that if sucli contract or other transaction was with a person who has since died, or f -r any legal cause has become incompetent to testify, the other party is not admitted as a witness at all, and cannot testify to any .fact in the case. That w s an action upon a bond, to which the pleaswere payment and set-offs. One of the obligors toeing dead, the plaintiff was incompetent to testify, and the question was, whether a surviving obligor, one of the defendants' was a competent witness to sustain the issues on the part of the defendants. The circuit court held that he was. and permitted him to testify, holding that while he was incompetent to testify as to the execution of the toond, he was a competent witness to prove any subsequent transactions had between himself and the plain t'ff involved in the issues ioined. But this court held otherwise, and reversed the judgment, referring to Mason v. Wood, 27 Gratt., 783; and Grigsby v. Simpson, 28 Id., 348.”
    
   BURKS, J.,

delivered the opinion of the court.

*These two causes are heard together. The same questions precisely are presented [or decision in each. Only one of those questions need be considered and decided, and that is, whether, under the law as it stood on the 28th day of April,_ 1876 (the date of trial in the court below), in an action of debt, instituted on a joint and several bond by the obligee against the surviving obligors, or against the _ personal representative of a deceased obligor, any one of the surviving obligors was a competent witness on behalf of the defendants against the plaintiff.

Upon the authority of several recent decisions of this court, this question must be resolved in the negative.

In Grigsby & others v. Simpson, ass’ee &c., 28 Gratt. 348, the action was debt on bond, brought by and in the name of the assignee of the deceased obligee against the surviving obligors. The pleas were “payment” and “usury.” Two of the obligors offered to testify on the trial on behalf of themselves and their codefendanls, and it was held by the court of trial and by this court, that they were incompetent so to testify. This court decided that the bond sued on was the contract, which was “the subject of investigation,” within the meaning of the statute; and the principle of the decision is, that the test of competency of a party under the statute is not the fact to which such party is called to testify, but the contract or other transaction, which is the subject of investigation, and if such contract or other transaction was with a person who has since _died, become insane, or incompetent to testify by reason of infamy, or other legal cause, “the other party is not admitted as a witness at all, and cannot testify to any fact in the case.”

The same principle had been previously firmed, in substance, in Mason & others v. Wood, 37 Gratt. 783. There, as in one of the cases now before us, the action was on a bond by the obligee against surviving obligors.. The defence was, that the consideration of the bond was the price *of an animal warranted sound, &c., and that there was a breach of the warranty. On the trial, the plaintiffs having introduced witnesses who testified to conversations held with two of the obligors long subsequent to the purchase of the animal for the price ,of which the bond was given, tending by implication to disprove the alleged breach of warranty, the defendants, in order to rebut that testimony, offered the two obligors, with whom the alleged conversations were had,- as witnesses to prove what those conversations were. The circuit court decided, that these obligors were incompetent to testify in the case on behalf of .themselves and the other defendants, and excluded them as witnesses, and this decision was affirmed by this court.

Judge Anderson, in the opinion of the court delivered by him, after citing the statute (the same which applies to the cases in judgment), Code of 1873, ch. 172, § 21, says: “By the'express terms of the above recited clause of this section, Funsten [co-obligor], one of the parties to the contract, being dead, Wood [obligee], the adverse party, is made incompetent to testify in his own favor, or in favor of any other party having an interest adverse to Funsten. And Wood being incompetent to testify, can either of the parties adverse to him be admitted to testify? The language of the statute seems to be explicit. When one of the original parties to the contract is dead, ‘or incompetent to .testify by reason of infamy, or any other legal cause, the other party shall not be admitted to testify in his own favor,’ &c. The legislature may have intended to limit the incompetency to testify to transactions between the living and deceased parties, or to the acts and declarations of the deceased party, and not to have otherwise restricted his general competency, as given by the twenty-first section; but if so intended, it is not so expressed. By the terms and the express letter of the law, parties in such cases are declared to be incompetent to testify in their own favor, &c. There *is no limitation of the incompetence as to the subiect matter of the testimony. It is general and unrestricted. They are declared to be incompetent to testify in the cause in their own favor. It might have been reasonable in the legislature to have restricted the incompetency to such matters as the other party, if not incapacitated, might be qualified to speak to, as acts and declarations imputed to him, or transactions in which he acted a part, and left untouched his competency as to other matters; and such restriction might comport with the spirit of the act; but the legislature has not so said, and the court is not disposed to extend the operation of the act beyond its terms and express provisions; and the incompetency of parties to testify in their favor, &c., in such cases being declared by the act in express terms, they must be held incompetent to testify to any matter bearing upon the issue in the cause.”

In the opinion the case of Field v. Brown and al., 24 Gratt. 74, is adverted to and explained, so far as it relates to the question of the competency of parties to testify in their own behalf, when the adverse parties are incompetent.

. Whether at common law a witness is competent to give evidence in a cause for one purpose only, and if he is competent at all, whether he may not be examined upon any matter in the record, see Steptoe v. Read, for, &c., 19 Gratt. 1.

Since the trial of these causes in the court below, the statute in force at the time of trial has been amended by the legislature, and as amended, it is alleged that the incompetency of the parties to testify has been removed. Acts of 1876-7, pp. 184, 185; 1b. pp. 265, 266.

The law as it stood at the time of trial is the law by which this court must determine, whether, in the rulings then made and judgments recorded, there was any error to the prejudice of the plaintiff. See Crawford v. Halstead & Putnam, 20 Gratt. 211. *Tested by that law, as expounded by this court in the decisions before cited, there was such error, and. the judgments must therefore be severally reversed, the verdicts set- aside, and the causes remanded for new trials therein respectively.

The judgment in each case was as follows:

This day came again the parties by their counsel, and the court, having maturely considered the transcript of the record of the judgment aforesaid, and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the said judgment is erroneous; therefore, it is considered and ordered, that the said judgment be reversed and annulled, and that the plaintiff in error recover against the defendants in error his costs by him expended in the prosecution of his writ of error and supersedeas aforesaid here; and it is further considered and ordered, that the verdict of the jury be set aside, and that this cause be remanded to the said circuit court for a new trial and other proceedings to be had therein, in order to a final judgment, in conformity with this judgment and the opinion therein expressed; which is ordered to be certified to the circuit court of Carroll county.

Judgments reversed.  