Newton v. Higgins

After argument, PitErmss, J. delivered the opinion of the Court. — At common law, in all actions, where there are two or more plaintiffs or de» fendants, the death of one of them, pending the action, Or before final judgment, is an abatement of the action. But it is provided by statute, that if there be two or more plaintiffs or defendants, and one or more of them die, if the cause of action survives, the writ or suit shall not be thereby abated; but such death being suggested on the record, the same shall proceed at the suit of the surviving plaintiff or plaintiffs, against the surviving defendant or defendants. (Com. Stat. p.345, s. 6l.) As the cause of action in this case survived, the auditor did right in proceeding to adjust the accounts, notwithstanding the death of one of the defendants ; and as the death was suggested on the record in the court below, pursuant to the statute, judgment was properly rendered on the report against the surviving defendant. It is very clear that a witness not originally interested, cannot, by his own act, deprive a party of the benefit of his testimony. If he becomes interested by his own act, without the interference or consent of the party, such subsequent interest will not render him incompetent. But if his interest is cast upon him by operation of law, and especially by the act of the party who requires his testimony, he is incompetent. The witness offered by the defendant, on the hearing before the auditor, had become bail in the suit for the defendant, with his knowledge and consent,, and was, therefore, incompetent, and properly rejected. As to the refusal of the auditor to grant the continuance requested, it is certainly not usual, after a witness is rejected, to allow a continuance for the purpose of enabling the party to remove the interest of the witness, and restore his competency, by a release or otherwise. If the defendant wished to avail himself of the testimony of the witness, he should not have procured him to become bail in the suit. At any rate, he should have applied in proper season to the court below, to accept other bail and discharge the witness. But the continuance was a matter resting in the discretion of the auditor. We do not mean, however, to say, that the court below, if the interest of the witness had been removed, and it had been made to appear that manifest injustice had been done, and that bis testimony would be decisive of the case, might not in their discretion, on adequate terms, have recommitted the case to the au369 iSitor for a further hearing. Rut the report having been accepted and judgment rendered upon it in the court below, the defendants concluded; and the refusalofacontinuanceby the auditoris not a matter of error to be corrected on a removal of the cause here. Smith, for plaintiff. Sheldon and Smalley and Adams,lor defendant. The plaintiffs account consisted of charges for work and services performed by him for the defendant and his deceased partner, for which they agreed to make payment in cattle. The services were such as are usually charged on book ; and where the articles are in themselves proper subjects of book charge, a special agreement as to the mode of payment will not preclude the plaintiff from the right to charge them on book, and sue for them In this form of action. — ■(Fay et al. vs. Green, 2 Aik. 386.) Judgment affirmed.