Under these statutes, which confine the exception to suits against executors and ad ministrators, the death of an agent of one party, through whom the contract was made, does not prevent the surviving party from testifying to the contract ; American L. I. & T. Co. v. Shultz, 2 Wkly. Notes Cas. (Pa.) 665 ; but under statutes which exclude the surviving party to a contract, the death of a contracting agent excludes the surviving par ty who contracted with him; Cornell v. Barnes, 26 Wis. 473. See Sprague v. Bond, 113 N. C. 551, 18 S. E. 701. An agent who makes a sale of goods for his principal is not incompetent to testify to the circumstances of the transaction because of the death of the buyer ; Shaub v. Smith, 50 Ohio St. 648, 35 N. E. 503. Unless the exception expressly covers all suits against executors and admin istrators, it does not exclude the plaintiff from proving matters occurring since the death of the party of whom the defendant is executor ; Brown v. Brown, 48 N. H. 90. The exception in statutes where the exclusion re iates only to the surviving party in contracts does not include torts ; Entwhistle v. Feigh ner, 60 Mo. 214. When the deposition of a deceased party afterwards is put in evidence, the other party being still living, such other party should be admitted as a witness in re ply ; Monroe v. Napier, 52 Ga. 385 ; Stone v. Hunt, 114 Mo. 66, 21 S. W. 454. See, general ly, Eisenlord v. Cium, 126 N. Y. 552, 27 N. E. 1024, 12 L. R. A. 836. As to exclusion of tes timony against a decedent on the ground of interest, see Eisenlord v. Clum, 126 N. Y. 552, 27 N. E. 1024, 12 L. R. A. 836.
Husband and wife were excluded at com mon law from giving testimony for or against each other when either was a party to the suit or interested. And neither was compe tent to prove a fact directly tending to crim inate the other. This rule was founded part ly on their identity of interest, and partiy, perhaps chiefly, on the policy of the law which aims to protect the confidence between man and wife that is essential to the comfort of the married relation, and, through that, to the good order of society. Whether or not the disability of husband or wife may be removed by consent of the other is matter of dispute; 3 C. & P. 551 ; 1 Greenl. Ev. § 340. In England, by stet.. 16, & 17 Viet. c. 83, consent removes the disability ; Whart. Ev. § 428. It is not removed by death, nor by the dissolution of the marriage relation, so far as respects information derived confi dentially during marital intercourse ; Ryan v. Follansbee, 47 N. H. 100. She may, how ever, testify as to matters which transpired subsequently to a divorce; Long v. State, 86 Ala. 36, 5 South. 443.
The wife of a member of a partnership is not competent as a witness in a suit against the partnership ; McEwen v. Shan non & Co., 64 Vt. 583, 25 Atl. 661.
The rule is not ordinarily affected by stat utes permitting husband or wife to testify for or against each other ; People v. Beagle, 60 Barb. (N. Y.) 527; nor does the statute as to the evidence of parties in interest gen erally affect their common-law incapacity to testify ; Lucas v. Brooks, 18 Wall. (U. S.) 452, 21 L. Ed. 779.
Some exceptions to this rule; 1 Greenl. Ev. § 343 ; are admitted out of necessity for the protection of husband and wife against each other, and for the sake of pub lic justice, as in prosecutions for violence committed by either of them upon the other. See 1 Greenl. Ev. § 334 ; Ry. & M. 253 ; Bas sett v. U. S., 137 U. S. 496, 11 Sup. Ct. 165, 34 L. Ed. 762. It is not error to receive the testimony of the wife of a person on trial for murder by consent of his counsel if she is advised by the court that she need not tes tify unless she desires to do so ; Benson v. U. S., 140 U. S. 325, 13 Sup. Ct. 60, 36 L. Ed. 991.
Parties to negotiable instruments are, in some jurisdictions held incompetent to in validate these instruments to which they have given currency by their signature. Such
seems to be the prevailing, but not universal, rule in the United States; while in England such testimony is admitted, the objection go ing only to its credibility ; 1 Greenl. Ev. § 383 ; 1 Term 296; Dickinson v. Dickinson, 9 Mete. (Mass.) 471; Harding v. Mott, 20 Pa. 469; Pecker v. Sawyer, 24 Vt. 459.
And, finally, there are certain confidential communications; 1 Greenl. Ev. § 236; to which the recipient of them, from general considerations of policy, is not allowed to testify. But the privilege may be waived by the party entitled to claim the benefit of it, as when two physicians were in consultation, a party by calling one waives the right to ob ject to the testimony of the other against her ; Morris v. Ry. Co., 148 N. Y. 88, 42 N. E. 410, 51 Am. St. Rep. 675. See CONFIDENTIAL COMMUNICATIONS.
Judges are not compellable to testify to what occurred in their consultations ; but they may be examined as to what took place before them on the trial in order to identify the case, or prove the testimony of a witness ; 1 Whart. Ev. § 600 ;.,see Huff v. Bennett, 4 Sandf. (N. Y.) 120; but in England there is a dpubt as to the latter proposition; Steph. Ev. art. 111; and it is said that in England a barrister cannot be compelled to testify as to what he said in court in his character of barrister ; id.
Whether attorneys and counsel are qualified as witnesses in a trial in which they participate has always been a question of difficulty, and it can hardly be said that it is settled upon any principle. Of course, the primary disqualification of interest has become obsolete by the general abolition of rules for the disqualification of witnesses up on that ground. There remains, however, an objection which is based upon public policy and this has been generally recognized and frequently expressed by courts as well as by members of the bar. Strong expressions of disapproval of the practice by courts are found, by Lewis, J., in Mishler v. Baumgard ner, 4 Clark (Pa.) 266, where he says that in 25 years experience he has seldom known an attorney received as a witness for his client on a disputed point without loss of reputation, and to some extent, reproach up on the profession ; by Sanford, J., in Little v. Keon, 1 Code Rep. (N. Y.) 4, who, while con ceding that there is no legal objection, as sumes that the practice will be confined to case of unforeseen necessity, and that the evil will work its own cure by the loss in char acter of those who indulge in it ; by Law rence, J., in Ross v. Demoss, 45 Ill. 447, who considers that one occupying the attitude of both witness and attorney subjects his tes timony to criticism if not suspicion ; and in an anonymous case, 5 West L. J. 457, the court said that the exclusion should rest upon peculiar grounds, "not because his integrity may be exposed to temptation, but because it will be exposed to suspicion." Porter, J., in Cox v. Williams, 5 Mart. N. S. (La.) 139, approved a prohibitory statute on the subject as being doubtless based upon the idea that the attorney could not be safely entrusted to testify for his client because of his natural identification with him in feeling if not in interest. The result of the controversy on the subject is stated to be that the force of the objection has been realized, but the courts have declined as a general thing to lay down a prohibitory rule ; Wigm. Ev. § 1911. It is, however, suggested that this is due doubt less to the fact that the evil would arise rather from an inveterate custom than from casual instances, and that the strong expres sions of the court upon the subject have sufficed to prevent a general indulgence in the practice.