Daw v. Vreeland

The Chancellor. The right of the complainant to call and examine the defendant, Adrian Vreeland, who is sued in a representative capacity, as a witness for him, is denied by the defendants. The act “ concerning evidence” (Rev. p. 378) provides that, in all civil actions, in any court of record in this state, the parties thereto shall be admitted to be sworn and give evidence therein when called as witnesses by the adverse party in such action, but that no party shall be sworn in any case where the opposite party is prohibited by any legal disability from being sworn as a witness, or either of the 543 parties in the cause sue or are sued in a representative capacity, except as thereinafter provided, viz., that a party to a suit in a representative capacity may be admitted as a witness therein, and, if called as a witness in his own behalf and admitted, the opposite party may, in like manner, be admitted as a witness. Clearly, the act will not admit of the construction that a party sued in a representative' capacity cannot be required to give testimony as a witness for the opposite party when called by that party. It was not.intended to deprive a party of the testimony of his adversary as a witness for him in the cause where the latter is sued in a representative capacity. His so calling him, however, will not render his own testimony competent in the cause, and that is what was decided in Hartman v. Alden, 5 Vr. 518, cited on the argument, and all that was decided on the point in that ease. The complainant is entitled to the testimony of Mr. Tree-land as a witness for him.