Leavitt v. Steenbergen ( 1848 )

Paige, J.

A party complainant cannot be a witness against the defendants, either in behalf of himself or of his co-complainants. A complainant who may be liable for costs if he does not succeed in establishing the claim set up in the bill, is not a competent witness to prove the facts necessary to sustain the suit, although he has no personal interest in the subject matter of the litigation. In certain cases a defen dant is permitted to examine a mere nominal complainant, with his assent, against the real plaintiff. (Eckford v. DeKay, 6 Paige, 568, 9. 1 Jacob, 577.) But in- no case can a defendant examine a plaintiff, as a witness, against his consent. (Fereday v. Wightwick, 4 Russell, 114. 15 Vesey, 178.)

The practice of the late court of chancery only permitted a defendant to be examined against a co-defendant or against the plaintiff, as to the matters in which he was not interested. {Rule 63.) Where one of the complainants, who has no personal interest in the subject matter of the litigation, is a material witness to prove the facts necessary to sustain the suit, the proper course, where the nature of the case will admit of such a change of parties, is to move to strike out the name of such nominal complainant, and if he is a necessary party, to make him a party defendant. And on his name being stricken out as a complainant, he can be examined as a witness for his co-complainants. (6 Paige, 569, and the cases there cited. 1 John. Ch. 173. 1 Hoffman’s Pr. 487. 12 Ves. 493. Ewer v. Atkinson, 2 Cox’s Ch. Cas. 393. Motteux v. Mackreth, 1 Ves. jun. 142.) And where it is required by the defendants, the remaining complainants may be ordered to give security for costs, (1 John. Ch. 173. 6 Paige, 567;) especially if there is any doubt as to their pecuniary responsibility. (Wilts v. Campbell, 12 Ves. 493.)

It seems to be the established practice of the court of chancery, to allow a plaintiff to strike out the name of a co-plaintiff who has no interest in the suit, in order to make him a competent witness in his behalf. The cases of Bridges, &c. v. Armour, &c. (5 How. U. S. R. 91,) and Stein v. Bowman, (13 Pet. U. S. R. 219,) were decided upon the ground that a party to the record, although divested of all interest in the event of the suit, was an incompetent witness in the cause. This is a settled rule at law. (4 Wend. 453. 10 John. 128. 20 Id. 142. 5 Paige, 251.)

In this case, the defendants do not deny that the remaining plaintiffs are abundantly responsible for the payment of their costs; nor do they pretend that any extra costs have been in--urred in the cause by reason of Machir’s having been joined as a plaintiff in the suit. An order must be entered allowing the plaintiffs to dismiss the bill as to the plaintiff Joseph J. Machir, or to strike out his name as a plaintiff in the bill, on payment of ten dollars costs to the defendants for opposing this motion.