Potter v. National Bank
| Decision Date | 01 October 1880 |
| Citation | 102 U.S. 163,26 L.Ed. 111 |
| Parties | POTTER v. NATIONAL BANK |
| Court | U.S. Supreme Court |
ERROR to the Circuit Court of the United States for the Northern District of Illinois.
The facts are stated in the opinion of the court.
Mr. George Willard for the plaintiff in error.
Mr. Huntington W. Jackson and Mr. John H. Thompson, contra.
This is a writ of error from a judgment rendered in the Circuit Court of the United States for the Northern District of Illinois in favor of the Third National Bank of Chicago, Illinois, against Orrin W. Potter, executor of E. B. Ward. Upon the trial before the jury, one William Sturgess, not a party to the action, was introduced as a witness in behalf of the bank. In the course of his examination he was allowed, against the objection of the defendant, to testify as to a conversation had by him with Ward, touching some of the matters involved in the present controversy. The objection to his testifying was placed upon the ground that Ward was dead, and that he, the witness, was interested in the issues to be tried. The action of the Circuit Court in permitting the witness to disclose that conversaton is the subject of one of the assignments of error.
By sect. 858 of the Revised Statutes it is declared that
The first clause of this section is, substantially, in the words of the proviso of the section of the act of July 2, 1864, making appropriations for sundry civil expenses of the government. 13 Stat. 351. The second clause is in the words of the proviso of the act of March 3, 1865, amending the third section of the act of July 2, 1864 (id. 533), while the last clause is founded upon the act of July 16, 1862. 12 id. 588.
The existing statute (Rev. Stat., sect. 858) seems too plain to require construction. The first clause of that section shows that there was in the mind of Congress two classes of witnesses, those who were parties to the issue, that is, parties to the record; and those interested in the issue to be tried, that is, those who, although not parties to the record, held such relations to the issue that they would lose or gain by the direct legal operation and effect of the judgment. A witness may be interested in the issue without being a party thereto,—a distinction which seems to have been recognized in all the statutes to which reference has been made. But whether a party to or only interested in the issue, the witness is not to be excluded in the courts of the United States, upon either ground, except that in actions in which judgment may be rendered for or against an executor, administrator, or guardian, no party to the action can testify against the other as to any transaction with, or statement by, the testator, intestate, or ward, unless called to testify thereto by the opposite party, or required to testify thereto by the court. The proviso of sect. 858 excludes only one of the classes described in its first clause,—those who are, technically, parties to the issue to be tried,—and we are not at liberty to suppose that Congress intended the word 'party,' as used in that proviso, to include both those who, according to the established rules of pleading and evidence, are parties to the issue, and those who, not being parties, have an interest in the result of that issue.
It is, however, contended by the learned counsel for the plaintiff in error that, by the laws of Illinois, Sturgess was an incompetent witness as to the matters embraced in his conversation with Ward, and that the Circuit Court was bound to follow those laws as interpreted by the highest court of the State. It is quite true that the thirty-fourth section of the Judiciary Act of 1789 preserved, totidem verbis, in sect....
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Lake Shore Nat. Bank v. Bellanca Aircraft Corporation, Civil Action No. 1075.
...858, Revised Statutes of the United States, remained in force, viz., up to June 29, 1906, certain decisions like Potter v. National Bank, 102 U.S. 163, 26 L.Ed. 111, and Huntington National Bank v. Huntington Distilling Co., 4 Cir., 152 F. 240,11 were made. These decisions were, of course, ......