Whipple v. Lansing & Van Rensselaer , 3 Johns. Ch. 612 ( 1818 )

The Chancellor.

The defendant, Van Rensselaer, is charged in the bill as a particeps criminis to the transactions, or some of them, sought to be impeached. He is called to swear to the truth and to the justness of the charges made on his part, and to the payments made on the part of the other defendant, and which are charged as being the result entirely of a fraudulent collusion. If the charge be true, the defendant, Van Rensselaer, must not only answer in costs, but he loses the advantage of the settlement he has made with the other defendant, and he will be ultimately responsible for the money. He is, therefore, upon the face of the pleadings, not only a particeps crimibut he has au interest in the result of the cause.— He is clearly, therefore, an incompetent witness. The .decisions in Dixon v. Parker, (2 Vesey, 219.) Bridgman v. Green, (2 Vesey, 629.) and Downing v. Townsend, (Amb. 592.) are to this effect. So, in Murray v. Shadwell, (2 Vesey & Bea. 401.) in which Lord Eldon ruled, that one co-defendant may be examined before hearing, for another, if not interested in the matter to which he is to he examined, it was agreed, that if it turns out that he has an interest in those matters, by reason of his interest in the result, his deposition cannot, be read,

It would be dangerous to make an experiment in this case, by an order de bene esse. The cause after issue, and without hearing, was, by consent, referred; and if the Master was to take the testimony, it would be difficult to determine on its effect and competence afterwards. It is not like the case of testimony taken before hearing, which can be entirely and safely suppressed, when the hearing comes pn, if it should be judged inadmissible.

.Motion denied,