
    
      B. Hawkins v. P. Hawkins.
    
    The question in this case arose upon the admissibility of the deposition of C. Marshall, under the following circumstances. Marshall was an original defendant in this bill in equity, in which it was charged that certain deeds were delivered to him a sa trustee to be re-delivered to P. Hawkins, deceased, upon his request, which he made in his lifetime, but Marshall refused to redeliver them. The bill contained a prayer for the delivery up of the deeds, which it appeared had been delivered up to P. Hawkins, jun. the defendant’s son, after the death of P. Hawkins, deceased, to whom the promise had been made. The deeds were annexed to the answer of Marshall, and they were proved and recorded, and his answer submitted it to the Court to do with them what might be just. The deposition of Marshall had been taken, subject to all just exceptions, and the object of it was to show that he was a subscribing witness to the deed, that they were delivered unconditionally, and that he kept possession of them during the lifetime of P. Hawkins, deceased, with his consent and approbation.
    
      Marshall afterwards died, and the suit has not been revived against his representatives.
    Upon several issues submitted to the jury, they found that Marshall was requested by P. Hawkins, deceased, of his own will, to re-deliver the deeds, which he unjustifiably refused to do.
    The question was argued by A. Henderson and Gaston, in support of the deposition, and Browne, against it.
    The grounds assumed in favour of the deposition were, that when Marshall attested these deeds, the defendant acquired an interest in his testimony, of which he could not afterwards be deprived without his own act. That any subsequent interest of Marshall’s cannot render him incompetent. That the interest must exist at the time the fact happened which the witness is to prove, or be thrown upon him by operation of law, or the act of the party calling him. If a witness were allowed to disqualify himself, or if the adverse party could deprive the party calling him, of the benefit of his testimony, the utmost injustice would ensue.—Bent v. Baker, 3 Term. Rep. 27. It was further urged that Marshall was a mere formal party, having no interest in the cause; and the suit being now in progress without being revived against his representatives, shows the light in which the plaintiff made him a party to the bill.—2 Atk. 229. 2 Vesey 220.
    Against the deposition it was urged, that persons interested are excluded from giving testimony.—Gilb. Law Ev. 121, 2. Also those who are stigmatized.—Ib. 142.
    If an instrumentary witness after subscribing becomes interested as executor or administrator of the obligee, his hand-writing may be proved as if he was dead.—1 Str. 34. 1 P. Wms. 289. So if such witness afterwards becomes infamous.—2 Str. 833.
    
      If an instrumentary witness is interested at the time of subscribing, and at the trial, he cannot be a witness; nor can his hand-writing be proved.—5 T. R. 371. Esp. N. P. 258.
    It is charged in the bill, and also found by the jury on the trial of the issues, that the deed for the re-delivery or setting aside of which this bill was brought against Charles Marshall and P. Hawkins, jun. was delivered to the said C. Marshall, on trust to re-deliver it to P. Hawkins, sen. if he should require him so to do; and also that the said P. Hawkins, sen. did require the said C. Marshall to re-deliver the said deed to him, P. Hawkins, sen. which he the said C. Marshall refused to do, and in breach of his trust, delivered it to P. Hawkins, jun. the other defendant. Under such circumstances, the deposition of C. Marshall, taken while the bill was pending against him, cannot be read in evidence; because he was, at least, liable to costs. 3 Atk. 401. Barrett v. Gore and Umfreville in point. Nay, if P. Hawkins, jun. should be unable to compensate the injury sustained, C. Marshall would be decreed to do so.—3 Bro. Ch. Rep. 112. 1 Vesey, jr. 206.
    The witness C. Marshall was placed in this situation with the consent of the other defendant, P. Hawkins, jun. who received the deed from him, and now wishes to use his testimony in exculpation of them both. He hath poisoned the source, and now insists that we shall drink of the stream.
    The dicta that “ if, after the event, the witness become interested by his own act, without the interference or consent of the party by whom he is called, such subsequent interest will not render him incompetent, Peake's Ev. 157, 8, and if they be law, do not apply to this case. This doctrine is mentioned in Bent v. Baker; but that case was not decided on it; and Lord Kenyon calls it a minor point. It is not easy to imagine a case to be decided upon this distinction. In Allen v. Hearn, 1 T. R. 56, a wager between two voters was held to be void, as having a tendency to induce bribery and corruption at elections. And ought not a wager, or any other contract or transaction by which a witness attempts to gain an interest concerning a suit in which he is to give testimony, to be also void, as having a tendency to induce perjury?
    If a witness is convicted of perjury, or otherwise becomes infamous, the party loses his testimony, however material it may be: and why shall he not, if the witness becomes interested? Interest disqualifies from giving testimony as completely as infamy.
   Taylor, C. J.

delivered the opinion of the Court:

It appears from the statement sent up, that the character given by the bill to C. Marshall, is that of a trustee, and the question is, as to the competency of his testimony? Upon this subject there is a variance in the practice of courts of law and equity. In the first, no person made a defendant can be a witness, unless in some particular cases where he is improperly made a defendant, and there is no proof against him; in which case, the jury are directed to pass upon him, and upon acquittal, he is received as a witness. In the Court of Equity, it is frequently necessary to make a person defendant for the sake of form; and then it is almost a matter of course to examine him upon motion. Where a trustee has the legal interest in an estate, but is in all other respects nominal, he cannot be examined at law as to the merits or design of the deed, but there are several authorities to show that he may be admitted in equity. It is not to be understood, that these rules of evidence at law and in equity differ in general, but only in particular cases. Where fraud is charged by a bill, or the inquiry is relative to a trust, the jurisdiction of this Court would be greatly circumscribed, and its power of fully investigating the latent elements of a transaction over which artifice sometimes spreads the thickest disguise, much abridged, if it were confined within the strict rules prescribed by courts of law. In Ambler 393, a trustee plaintiff was examined on behalf of a defendant. In 1 P. Wms. it was ordered that the defendant might examine one of the plaintiffs who were assignees of a bankrupt as a witness for the defendant. In Gilb. Eq. Rep. 98, it is said, that a defendant may be made a witness because he is forced into the suit. In Ambler 592, the deposition of a trustee was admitted to be read as to the quantity of trust money in her hands. In 2 Vesey 629, it is said that when a trustee or attorney is a defendant, the objection goes only to his credit. If he is particeps fraudis, or interested, it goes to his competency. We cannot consider Marshall in any other light than as a formal party. The suit is not revived against his representatives, and they, therefore, cannot be liable to a decree or the costs.

There must be a new trial, and his deposition is allowed to be read.  