Louis's Administrator v. Easton

BBJCKELL, J. The only objection to the competency of witnesses, in civil proceedings, allowed by the statute, is, “ that in suits or proceedings by or against executors or administrators (as to which a different rule is not made by the laws of this State), neither party shall be allowed to testify against the other, as to any transaction with, or statement by the testator or intestate, unless called to testify thereto by the opposite party.” R. C. § 2704. At common law, the transferror of a chose in action was not a competent witness for his transferee to support the claim transferred. This rule of exclusion was not founded on the ground that the transferror had an interest in the event of the suit, but on reasons of public policy; and no release could remove the objection. Houston v. Prewitt, 8 Ala. 846; Clifton v. Sharpe, 15 Ala. 618. This r.ule of the common law was carried into and formed section 2290 of the Code of 1852. The reason assigned for the rule was, that it would let in the evils of champerty and maintenance, and would operate as an evasion of the rule excluding as witnesses those having a direct and immediate interest in the suit. A party to a contract, finding he had not legal evidence to sustain an action on it, could render himself competent by a transfer to another, while the lips of his adversary were sealed by an inflexible rule of law. The law can never permit indirection, or evasion, to accomplish that which is not capable of being accomplished directly. It was not material that, in the particular case, the transfer was made in good faith, and for a valuable consideration; the evils to be avoided were in some degree the same, and the rule was applied. The same reasons induce us to hold, that the transferror of a chose in action, on which, if no transfer had been made, suit must have been brought in his name, cannot render himself a competent witness against an executor or administrator under the statute of this State. He may not be within the letter, but he is within the spirit and policy of the statute. The object of the statute is to extend to each party the right and privilege of testifying. This right and privilege must be mutual. It cannot exist in the one party, and not in the other. If death has closed the lips of the one party, the policy of the law is to close the lips of the other. In all actions on contracts for the payment of money, whether express or implied, which must, under our system, be instituted in the name of the party having the beneficial interest, the policy of the statute would be defeated, if, by the machinery of a transfer, the party with [472] whom the contract was made could render himself a competent witness against his deceased adversary. Nor can we think the fact that the transfer was made before the death of the party supposed to be bound by the contract varies the rule. His death destroys the mutuality the statute intends to preserve, and an advantage would thereby accrue to the party suing on the contract, which the statute guards against. In the case of Stuckey v. Bellah (41 Ala. 700), an action of trover was instituted against a defendant individually, which could have been prosecuted against him in his capacity of administrator. This court held the case, though not literally within the statute, yet within its spirit; and said it must not receive such a construction as would place it within the power of a plaintiff to avoid its mandate by the election of-the remedy he would pursue, and declared the plaintiff was not in the case a competent witness. In Mountain v. Collins, at June term, 1872, it was held that the exception of the statute applied, where a liability of the s decedent, or a benefit to his estate, is sought to be established, whether the personal representative or the heir be a party. The policy of the exception would be defeated, and the exception itself would be t£e subject of frequent evasion, if it was confined in its operation to parties in the strict sense. The exception must embrace every case, in which it is sought to fasten on an estate a liability by the testimony o'f the party with whom that liability is created. The assignee or transferee of a contract, not negotiable, stands in the place, and succeeds only to the rights, of his assignor or transferror. Whatever disabilities rest on the assignor or transferror, must devolve on him. The witness Paschal was one of the transferrors, from whom the appellee derived his right of suit. He was called to testify as to the intestate’s admission of the correctness of the account, and as to his purchases of the goods charged in the account. He was not a competent witness for this purpose, and the objection of appellant to his admission as a witness and to his evidence should have been sustained. The judgment is reversed, and the cause remanded.