Easterly v. Bassignano & Larco , 20 Cal. 489 ( 1862 )

Cope, J. delivered the opinion of the Court—Field, C. J. and Norton, J. concurring.

This is an action upon an alleged indebtedness for money loaned, and for goods sold and delivered. On the trial of the case, the plaintiff introduced as a witness the defendant Bassignano, by whom the money and goods had been received. The principal question was as to the existence of a partnership between him and the defendant Larco ; and it is objected that he was an incompetent witness to prove the partnership. We are of opinion that this point is well taken, and that he was incompetent to give testimony, which, as between him and his codefendant, inured to his own benefit. The statute declares all persons incompetent who have a direct and immediate interest in the event of the action, and the provision authorizing the examination of parties was not intended as an exception. The general rule at common law is, that parties to the record are not competent to testify; and prior to the statute the only mode of purging the conscience of a party was by a proceeding in equity to obtain a discovery. The statute provides that no action for a discovery in aid of the prosecution or defense of another action shall be allowed, and the provision that “ a party may be examined as a witness at the instance of the adverse party ” was intended as a substitute. “ In general,” says Greenleaf, “ the answer of one defendant in chancery cannot be read in evidence against his co-defendant ; ” and this is the rule laid down by all of the authorities upon the subject. Where the defendants have a joint interest, it appears that the answer of one may be read against the other; but this cannot be done where the fact of the joint interest is the point in controversy. In such a case, a foundation must first be laid by showing prima facie that the interest exists, and that being shown, the answer is good evidence as to any other matter affecting the liability of the parties. The answer stands upon the same footing as an admission, and where the admission of a party could not be given in evidence to charge another as jointly liable, his answer cannot be read against the latter. The subject is fully discussed by Greenleaf in his work on _ evidence; and it is well settled that where two persons are sued as partners, an admission of the fact of partnership by one is not receivable against the other, to prove the partnership. (1 Greenleaf Ev., secs. 177, 178.) The statute abolishes bills of discovery, and substitutes in their place an examination at the trial; and the right of examination only extends to matters of which an answer in a suit for a discovery is evidence at common law. As a general rule, no person is allowed to testify in favor of his own interest; and this rule applies with equal force, whether the person is a party to the record or a stranger. It is the interest of the witness, and not merely his position upon the record, that controls, and a party cannot be examined as to any matter in which he is interested in favor of the party calling him. We regard the case of Washburn v. Alden (5 Cal. 463) as an authority in point, and we are not aware that a different construction has ever been given to the statute.

The judgment is reversed, and the. cause remanded for a new trial.