Demarest v. Vandenberg.

lunatic is, in this case, the nominal as well as the real complainant. The suit is, in terms, his. But if it had been brought by his guardians alone, it would have been, in fact, his, and he would have been the party complainant within the meaning of the act of 1859.

It is also urged by the defendant's counsel, that a person of unsound mind may be a witness, if found by the court before which he is to testify, to have sufficient capacity; and that hence it may be that the complainant is not disqualified by any legal disability from testifying. That is true; but the question under consideration is whether the case, as it stands, is within the exception made by the statute. If it is, the common law rule governs the matter, and the defendant is incompetent to testify in his own behalf. It has not been made to appear that the complainant has been restored to reason, nor that, although his mental condition is not sound, he nevertheless is competent to testify in his own behalf. He appears, on the record, to be of unsound mind, and therefore under legal disability, and it is to be presumed, prima facie, until the con

ing the cause, Bryant v. Livermore, 20 Minn. 313; so, a surrogate may appoint a guardian for an infant, although he is a relative of the guardian, Underhill v. Dennis, 9 Paige 202; or his son a committee for a lunatic, Hopper's Case, 5 Paige 489.

A guardian ad litem is a competent witness for his ward, Walker v. Thomas, 2 Dick. 781; Lupton v. Lupton, 2 Johns. Ch. 614; and so is a plaintiff against a guardian in socage, McCray v. McCray, 12 Abb. Pr. 1; [but see Lee v. Dill, 39 Barb. 521]; the wife of such guardian is also competent, Bonett v. Stowell, 37 Vt. 258.

The declarations of a guardian in socage against the infant are not edmissible for a defendant in a suit by the infant, Mertz v. Detweiler, 8 Watts & Serg. 376; Balt. R. R. v. McDonnell, 43 Md. 534.

A guardian ad litem is not a party" who may be compelled to answer interrogatories, Ingram v. Little, L. R. (11 Q. B. D.) 251,

A next friend is not a party to a suit, and hence may be a surety in replevin for an infant plaintiff, Anonymous, 2 Hill (N. Y.) 417.

A statute requiring the next friend of an infant to give security for costs, does not apply to a gurdian ad litem, Grantman v. Theall, 19 Abb. Pr. 308.

A next friend is a "party," within a statute requiring the party to an action to make an affidavit to obtain a change of venue, Deferd v. State, 30 Md. 179; or to make an affidavit as to what documents referred to in the bill were in plaintiff's possession, Crowe v. Bank of Ireland, L. R. (5 Irish Eq.) 578; but Demarest v. Vandenberg.

trary is made to appear, that he still continues under that disability. The object of the statute is to guard against the injustice which would arise from a want of mutuality, if one party were permitted to testify in his own behalf, while the other is unable, from legal disability, to exercise the same privilege. It was competent for the defendant to show, if he could, that the complainant was not incapacitated by disability of mental unsoundness from testifying; and if he had done so, he would thus have established his own right to be sworn in his own behalf. He did not do it. He ought, therefore, as the case stood, to have been held to be incompetent. The inquisition is not conclusive as to the existence of the legal disability to testify, but prima facie the state of incapacity continues until the contrary appears. It is not necessary for the complainant to show that it, in fact, continues, in order to preclude the defendant. The latter is precluded by the presumed continuance of the state of incapacity until the contrary appears. If it appears, he will be qualified to testify. If it does not appear otherwise, he may show it, if he can.

Demarest v. Vandenberg.

It is suggested that the examiner ought, in such cases as this, notwithstanding the objection, to swear the defendant, and then, on objection, deal with the question of the competency of his testimony as and when offered. But, as matters stood in this case, the defendant was not competent to be a witness in the cause. He was offered as a witness to prove usury-the subject of controversy-to testify upon the merits. The statute provides that a party shall not "be sworn," where the opposite party is prohibited by any legal disability from being sworn as a witness. By this is meant that he shall not be permitted to testify as to any matter in which he would not be a competent witness at the common law. Had there been an offer to prove by the defendant any matter as to which he would have been competent to testify at the common law, he should have been sworn and permitted to give evidence as to that. But there was no such offer.

It is also said that the two hundred and eighteenth rule of this court gives the examiner no authority to refuse to swear a witness, but only authorizes him to adjudicate upon the competency

A prochein amy is not "a party individually named in the record," so as to be excluded as a witness for his ward, Sinclair v. Sinclair, 13 M. & W.640; Mellnish v. Collier, 14 Jur. 621.

A guardian is not a competent witness for his ward in an action against a third party, Clutterbuck v. Huntingtower, 1 Stra. 506; Stein v. Robertson, 30 Ala 286; but see McCullough v. McCullough, 31 Mo. 226; nor, in proceedings between himself and his wards, Garwood v. Cooper, 12 Heisk. 101; Wilson v. Unselt, 12 Bush 215.

In a suit against a guardian, the administrator of a former guardian is competent for the plaintiff, Young v. Warne, 2 Rob. (Va.) 420.

The declarations or admissions of a guardian are not admissible against his ward, Ewell's Lead. Cas. 235; 1 Taylor's Evid & 742; also Wrottesley v. Bendish, 3 P. Wms. 237; Walton v. Coulson, 1 McLean 120; Bank of United States v. Ritchie, 8 Pet. 128; Evans v. Davies, 39 Ark. 235; McClay v. Norris, 9 IU. 370; Rhoads v. Rhoads, 43 Ill. 239; Turner v. Jenkins, 79 Ill. 228; Carender v. Smith, 5 Iowa 157; Prutzman v. Pitesell, 3 Har. & Johns. 77; Tucker v. Rean, 65 Me. 352; Cooper v. Mayhew, 40 Mich. 528; Massie v. Donaldson, 8 Ohio 377; Bank of Alexandria v. Patton, 1 Rob. (Va.) 499, 535; Gibbons v. McDermott, 19 Fla. 852; see, however, James v. Hatfield, 1 Stra. 548; Tenney v. Evans, 14 N. H. 343; McCarthy v. McCarthy, 66 Ind. 128; Randall v. Turner, 17 Ohio St. 262; Walsh v. Walsh, 116 Mass. 377. REP.

Kirkpatrick v. Corning.

of his testimony. The rule clearly extends to cases where the
witness is incompetent to testify at all. It in terms empowers
the examiner to decide upon all objections to evidence. This
gives him authority to reject an incompetent witness. To swear
a witness who is incompetent to testify, would be a mere idle
ceremony. The rule sufficiently provides for the protection of
parties in any case by giving an almost immediate appeal to the
court itself.
The decision of the examiner will be reversed.

The complainant seeks to redeem certain real estate sold under foreclosure in this court, on equitable terms. All the defendants, except Alice Buckingham and her husband and Susan Horner, demurred to the bill for want of equity. Their demurrer was sustained in this court, but the decree of this court was reversed by the court of errors and appeals, where it was held, as this court had held, that the decree in the foreclosure suit was conclusive on the complainant; but that court held further that complainant might be entitled to relief on the ground of fraud in the sale under that foreclosure. Afterwards, all of the bill, excepting the part relating to that fraud, was stricken out. The defendant Alice Buckingham, who has already answered, now moves for leave to file an amended answer by way of cross-bill against certain of her codefendants, to obtain the relief which it has been held in this case the complainant cannot himself obtain. The original bill neither asks for any relief against her, nor can any be thereby obtained against her.-Held, that the application must be refused. A cross-bill is considered as a mode of defence, and must be confined to the subject of the litigation in the original suit, and cannot be the means of instituting a distinct suit in relation to other matters, and cannot become the foundation of a decree as to such matters.

Bill for relief. On motion for leave to file amended answer by way of cross-bill.

Mr. F. B. Candler, of New York, and Mr. J. M. Buckingham, of New York, for the motion.

Kirkpatrick v. Corning.

Mr. T. N. McCarter and Mr. Amasa J. Parker, of New York,

contra.

THE CHANCELLOR.

By the original bill, the complainant, as receiver of the late firm of James Horner & Co., seeks to redeem certain real property sold under a decree of this court in foreclosure proceedings, on the payment of the sum actually due on the mortgage, after deducting therefrom the fair value of the use and occupation of the premises since the foreclosure sale, and crediting the full value of certain personal property of the firm bought by Corning, the holder of the mortgage, at master's sale held by order of this court; and if that be denied, he prays that the sale under the foreclosure decree may be set aside and a new one ordered, to raise what may be due on the mortgage, after making such credits as the complainant may be equitably entitled to. The * facts set forth in the bill are stated in Kirkpatrick v. Corning, 10 Stew. Eq. 54. All the defendants, except Alice Buckingham and her husband and Susan Horner, demurred to the bill for want of equity. In this court the demurrer was sustained, but the decree sustaining it was reversed in the court of errors and appeals. Kirkpatrick v. Corning, 11 Stew. Eq. 234. In that court it was held, as it had been held here, that the decree in the foreclosure suit was conclusive upon the complainant; but that court held that he might be entitled to relief, on the ground of fraud in or in connection with the sale. On motion in this court, all that part of the bill which related wholly to the former ground of relief (against the decree) was subsequently stricken out. Kirkpatrick v. Corning, 12 Stew. Eq. 22. The defendant Alice Buckingham, who has already answered, now moves for leave to file an amended answer, by way of cross-bill, against the defendants, Corning, Ludlum and wife and the Pompton Steel and Iron Company, to obtain, amongst other relief, the very relief against the decree which it was held that the complainant was not entitled to. The foreclosure decree, it may be remarked, is equally conclusive against her as against the complainant, for she was a party to the foreclosure suit. The scope