When It is said that all persons may be witnesses, it is not meant that all persons may testify in all cases. The testimony of such as are generally qualified and compe tent under other circumstances or as to other matters is sometimes excluded out of regard to their special relations to the cause in is sue or the parties, or from some other cir cumstances not working a general disqualifi cation.
Parties to the record were not competent witnesses, at common law, for themselves or their co-suitors. Nor were they compella ble to testify for the adverse party ; 7 Bingh. 395 ; Frear v. Evertson, 20 Johns. (N. Y.) 142 ; but they were competent to do so ; although one of several co-suitors could not thus be come a witness for the adversaries without the consent of his associates ; Bridges v. Ar mour, 5 How. (U. S.) 91, 12 L. Ed. 64 ; Evans v. Gibbs, 6 Humph. (Tenn.) 405. Regard was had not merely to the nominal party to the record, but also to the real party in interest; and the former was not allowed to testify for the adverse side without the consent of the latter ; Bradlee v. Neal, 16 Pick. (Mass.) 501; Frear v. Evertson, 20 Johns. (N. Y) 142. Persons who have no interest in the matter in controversy are not incompetent merely be cause parties to the action; Martin v. Mar tin, 118 Ind. 227, 20 N. E. 763.
In some jurisdictions a party had the right of compelling his adversary to answer inter rogatories under oath, as also to appear and testify. And, in equity, parties could require and use each other's testimony ; and the an swer of a defendant as to any matters stated in the bill was evidence in his own favor ; 1 Greenl. Ev. § 329 ; 2 Story, Eq. Jur. 1528.
There were other exceptions to this rule. Cases where the adverse party had been guilty of some fraud or other tortious and unwarrantable act of intermeddling with the complainant's goods, and no other evidence than that of the complainant himself could be had of the amount of damage,—cases, also, where evidence of the parties was deem ed essential to the purposes of public justice, no other evidence being attainable,—were exceptions ; 1 Greenl. Ev. § 348 ; Herman v. Drinkwater, 1 Greenl. (Me.) 27.
On this same principle, persons directly interested in the result of the suit (see IN TEREST), or in the record as an instrument of evidence, were excluded ; and where the event of the cause turned upon a question which if decided one way would have ren dered the party offered as a witness liable, while a contrary decision would have pro tected him, he was excluded; Stark. Ev. 1730. But to this rule, also, there were ex ceptions : Stark. Ev. 1731; of which the case of agents testifying as to matters to which their agency extended, forms one ; 1 Greenl. Ev. § 386 ; so also an employe of a charitable institution ; Appeal of Combs, 105 Pa. 155 ; or a taxpayer of a town to which a library was given by will; Hitchcock v. Shaw,
160 Mass. 140, 35 N. E. 671; were not in competent for interest.
In both England and the United States, the rules of exclusion on the ground of in terest have been abrogated. The object of the statutes has been to remove all artificial restraints to competency so as to put the parties upon a footing of equality with other witnesses, both in their admissibility to tes tify for themselves, and in their being com pellable to testify for others ; Texas v. Chiles, 21 Wall. (U. S.) 488, 22 L. Ed. 650. In most of the statutes, however, cases are excepted where a suit is brought by or against execu tors or administrators. In these cases where one of the parties to a contract is dead, the survivor is not permitted to testify ; Karns v. Tanner, 66 Pa. 297 ; but this exception does not exclude directors or stockholders of a corporation which is a party, when the other party is dead ; Gunn v. Thruston, 130 Mo. 339, 32 S. W 654; Ullman v. Loan Co., 96 Ga. 625, 24 S. E. 409. But the exception does not make the surviving party incompe tent, it only precludes him from testifying to communications with the deceased ; Kelton v. Hill, 59 Me. 259 ; Stonecipher v. Hall, 64 121. The test is the nature of the com munications. The witness cannot testify to Personal communications with the deceased party ; Hatch v. Peugnet, 64 Barb. (N. Y.) 189 ; Richardson v. Haney, 76 Ia. 101, 40 N. W. 115 ; Blackwell's D. T. Co. v. McElwee, 100 N. C. 150, 5 S. E. 907; but it has been held that if documents can be proved by in dependent evidence, the case is not within the exception ; Moulton v. Mason, 21 Mich. 364. A husband may testify to conversation between his wife and the decedent, in which he took no part ; Sullivan v. Latimer, 38 S. C. 158, 17 S. E. 701; but one who is interest ed in the contest of a will cannot testify as to conversations between testator and anoth er in which the witness took no part ; In re Palmateer's Will, 78 Hun 43, 28 N. Y. Supp. 1062. If the suit is brought against co-de fendants, of whom only one is dead, when the contract was made either with the living co-defendants, or with the living and dead concurrently, the case is not within the ex ception ; Doody v. Pierce, 9 Allen (Mass.) 144; Hubbell v. Hubbell, 22 Ohio St. 208. But where an action was brought against three partners, one of whom subsequently died, and his executors were substituted, the plaintiff is not a competent witness as to anything which occurred during the lifetime of the de ceased partner although the latter may have taken no part in the contract on which the action was brought ; Brady v. Reed, 87 Pa. 111. In an action by a surviving partner on a book account, the defendant is competent to testify to payments by him to the deceased partner ; Wood v. Stewart, 9 Ind. App. 321, 36 N. E. 658.