party suing on the contract, which the statute guards against.”

And in Drew v. Simmons (1877) 58 Ala. 463, where the statute provided that neither party should be allowed to testify against the other as to any transaction with or statement by any deceased person whose estate is interested in the result of the suit, it was held that the one who made the contract sued upon with the deceased, who was clearly incompetent under the statute to testify as to the making of the contract in an action by him against the personal representative of the decedent, could not, by an assignment of his claim to another, render himself competent to testify as to the contract in an action by the latter; since to permit him thus to become a competent witness would be a palpable perversion of the policy of the statute and might lead to a most shocking abuse.

It was likewise held in Sublett v. Hodges (1889) 88 Ala. 491, 7 So. 296, that the transferrer of a half interest in the demand sued upon was not a competent witness for his transferee under the same statute, in a suit by the latter against the personal representative of the decedent, as to any conversation or transaction occurring between himself or other persons, and such decedent.

But the assignor of an assignable claim against a decedent is not rendered incompetent to testify to a transaction with the decedent by a constitutional provision that, in civil actions, no witness shall be excluded because he is a party to the suit or interested in the issue to be tried, provided that in actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transactions with or statements by the testator, intestate, or ward. This case is not strictly in point, because the decision is based upon the ground that interest does not disqualify a witness. Collier v. Trice (1906) 79 Ark. 414, 96 S. W. 174.

It was held in Buck v. Haynes (1889) 75 Mich. 397, 42 N. W. 949, un

der a statute prohibiting a party from testifying in a suit against the representatives of a decedent as to matters equally within the knowledge of the decedent, and making "party" include the assignor of the claim, that it was not error to permit the assignor of a claim against an estate to be asked, upon cross-examination, the purpose of his assigning the claim, and if it was so that he could be a witness to prove it, the court saying that, if the assignment was only made for such purpose, the assignor was not a competent witness to testify to the claim, and that the purpose of the inquiry was to show that the assignment was only colorable, and that he still had an interest in the claim, and therefore was incompetent to testify in relation to

it.

A statutory provision that no person could be a witness in any suit by or against himself, to establish his own claim against the estate of a decedent, was construed in Reinhardt v. Evans (1873) 48 Miss. 230, to render incompetent to testify for his assignee one who had assigned his claim "without recourse." It was so held upon the theory that the claim, though transferred, was the witness's own claim within the meaning of the statute, because the very gist of the controversy in the action by the assignee to enforce the claim was the original cause of action or claim of his assignor, and the court said that the purpose of the statute was to prevent the establishment of claims against the estates of decedents by the ex parte evidence of one of the parties to the transaction giving rise to the demand, and that to hold otherwise in this case would be to give notice to all persons having claims against the estates of decedents that to avoid the statute excluding their evidence in support of such claims they have only to assign their cause of action before or after suit brought.

But in a later case (Rothschild v. Hatch (1877) 54 Miss. 554), where the statute was in practically the same form, it was held that one who had conveyed his claim by deed of gift before suit was competent to testify for

his grantee. In disapproving of and overruling the preceding case the court said: "A direct, certain, and fixed interest in the event of the suit excluded a witness at common law. But one neither a party to the record nor interested in the event of the suit was not disqualified on the score of interest. That a party had been thus interested did not disqualify him as a witness, if at the time he was called to testify his interest had been removed by a release or otherwise. The theory was that one swayed by interest could not safely be admitted to testify in support of his interest; but if he had no interest in the event of the suit, and could not gain by the result, he might be admitted as a witness. A party might testify where his interest was equally balanced, or against his own interest. Our statute sweeps away all disqualifications on the ground of interest, but prohibits anyone from testifying as a witness to establish his own claim against the estate of a deceased person, which originated in the lifetime of such person. The claim which one cannot establish by his own testimony as a witness is his own. If it is another's, it is not 'his own.' Although it was his, if it has ceased to be his, it cannot with propriety be called his own claim, when he testifies as a witness to establish it. The question of the competency of a witness relates to the time when he testifies as a witness. It surely could not have been the purpose of lawmakers, who were narrowing the grounds of the exclusion of witnesses as existing at common law, to establish a ground of exclusion which did not exist at common law. The prohibition against testifying to establish one's own claim against the estate of a deceased person is an exception to the universality of competency on the ground of interest, and it will not do to widen the exception so as to make it broader than the rule of exclusion at common law, as the language of the statute does not require or admit of it. The reason the statute prohibits any person from proving his own. claim against the estate of a deceased person is the same which made the com

mon-law rule of exclusion on the ground of interest, and the same reason which caused the removal of interest to render one competent as a witness applies under the statute, to one who has no claim against the estate of a deceased person, but is called to testify as a witness to establish not his own claim, but another's. Devested of any interest, he is supposed to be freed from any motive to swear falsely to support the claim of another, and is competent as a witness to establish it. We disapprove of Reinhardt v. Evans (Miss.) supra, and overrule it."

But it is stated in Jones v. Sherman (1879) 56 Miss. 559, that very shortly after the decision in the preceding case the legislature amended the statute, intending thereby to incorporate in the Mississippi law of evidence the rule declared in Reinhardt v. Evans (Miss.) supra, so as to make the statute read that no assignment, release, or transfer of interest, made after the death of the decedent, shall have the effect to render the person so transferring a competent witness.

The assignor of the plaintiff in an action against an estate on account for services rendered the deceased during his lifetime is competent as a witness to prove the services. Fyke v. Lewis (1884) 15 Mo. App. 588.

And it was held in Million v. Ohnsorg (1881) 10 Mo. App. 432, an action by the holder to enforce notes of the decedent against his estate, that the assignor of the notes to the plaintiff was a competent witness, it appearing in this case that the assignor testified that he was the holder and owner of the notes, and had purchased them from a certain person before maturity, and that he assigned them to the plaintiff on the agreement that the plaintiff was to collect them at his own expense and that the assignor was to get one half of the proceeds, and that this was the only consideration for the assignment, and that he was the owner of the notes for a valuable consideration and had given all due credits; and the court said it was contended that the assignor was incompetent to testify because he was

an assignor, after the

death of the decedent, of the notes in suit, but that this point was merely suggested in the brief, and that the court did not see upon what theory such witness could be held incompetent; that he did not appear to have been one of the original parties to the contract or cause of action in issue and on trial, and that it did not see why he could not testify after the maker of the note had died as well as if he were alive; and that the deceased had nothing to do with the matters as as to which he testified.

A party rendered incompetent to testify by statute, by reason of his interest in an action to enforce a claim against an estate, cannot render himaelf competent by transferring his interest, since, if such were the law, it would afford an immediate mode of evading the statute. Magemau v. Bell (1882) 13 Neb. 247, 13 N. W. 277.

In an early New Jersey case (Campbell v. Zabriskie (1850) 8 N. J. Eq. 356) it was held that one who is incompetent to testify by reason of interest in an action against the estate of a decedent cannot become a competent witness by by assigning his interest to another.

But an examination of the following New Jersey cases shows that the rule in New Jersey is that an assignment will render the assignor a competent witness if the assignment is made in good faith, and this rule does not appear to be radically opposed to the holding in Campbell v. Zabriskie (N. J.) supra, since the court in that case said that there was no satisfactory evidence of the bona fides of the assignment, but that, on the contrary, the testimony of the assignor was sufficient to show its want of good faith, and further said that if, however, he should be held to be a competent witness on the ground that, having assigned all his interests, it was indifferent to him whether his assignee recovered more, or less, or anything at all, his testimony would be entitled to little consideration, unless the good faith of the assignment should be satisfactorily shown.

The sufficiency of the consideration

for the assignment seems to be made the principal element in New Jersey cases, in determining whether the assignment is made in good faith, so as to render the assignor a competent witness.

Thus, it was held in Cullen v. Woolverton (1900) 65 N. J. L. 279, 47 Atl. 626, that one who has assigned his claim against an estate for a consideration expressed in the assignment, equal in amount to the claim, is a competent witness for the assignee. An unsuccessful attempt was made in this case to keep out the testimony of the assignor upon the ground that he was a party to the action within the meaning of the statute providing that a party cannot give evidence as to any transaction with, or statement by, a decedent represented in the action. It was further contended that, even if the assignor could be released of his disqualification by reason of the assignment, he could not testify to transactions with the decedent, because the statute authorizing the assignment preserved to the defendant all defenses which existed previously to the assignment, and that the right to exclude the testimony of the assignor as to transactions with or statements by the deceased was one of those defenses; but the court held that the disability of the assignor to testify before the assignment was not a defense.

And one who, in good faith, assigned his claim against the estate of a decedent for a valuable consideration, consisting of the cancelation of a debt due from him to the assignee, and the latter's note for the balance, is not disqualified by interest from testifying in a suit, to which he is not a party, by the assignee to enforce the claim, by reason of the fact that the consideration for the assignment is less than the face of the claim, and that the success of the assignee will make more probable the ultimate payment of the note. Clendennin v. Clancy (1911) 82 N. J. L. 418, 42 L.R.A. (N.S.) 315, 81 Atl. 750.

And a widow who assigned her claim against her husband's estate to her son-in-law, in consideration of his note

for the amount thereof, is a competent witness to testify to transactions with her husband, although the son-in-law will be unable to pay the note unless he succeeds in the suit to enforce the claim. Harrison v. Patterson (1901)

N. J. Eq. —, 50 Atl. 113. It was unsuccessfully argued that the assignment was without consideration and a mere sham, contrived to enable the assignor to be sworn in her own favor in the face of the spirit of the statute.

And in Platner v. Ryan (1908) 76 N. J. L. 239, 69 Atl. 1007, where the owner of a claim against an estate of a decedent assigned her claim to her daughter without consideration and under a secret agreement whereby the recovery was to go to the assignor, it was held that the assignor was not a competent witness, since the assignment was not made in good faith, but solely for the purpose of qualifying her as a witness; and the court distinguished the case from Cullen v. Woolverton (N. J.) supra, on the ground that the consideration of the assignment in the Cullen Case was equal to the amount of the claim.

And in Wells v. Fidelity Trust Co. (1921) 93 N. J. Eq. 94, 115 Atl. 73, assignments of claims against an estate were held not to render the assignors competent witnesses, because the assignments were made without adequate consideration and solely to evade the bar of the statute. The evidence in this case was held not to support the claim that the assignment to the plaintiff by her brother of his interest was made in good faith, where it was shown that the consideration for such assignment was the cancelation of an outlawed debt to the plaintiff of the assignor, who had not been financially responsible for a number of years, that such debt amounted only to about one third of his interest, that the history of his relations with his sister did not bear out his pretense that he unselfishly desired to help her in the litigation by the sacrifice and surrender of his interest therein, and that the idea of his paying his sister by the so-called assignment did not orig

inate with him, but came from her counsel, who visited him in the penitentiary and explained to him that it was necessary for him to assign his interest in order to qualify as a witness in the action.

Where, in an action on an assigned claim against an executor, he pleaded that the assignment was not made by the assignor in good faith and for valuable consideration, but to qualify the assignor as a witness, and that the assignor was the real owner and plaintiff, for the purpose only of raising the question of the competency of the assignor as a witness, which plea was denied, the issue thus joined presented a preliminary question of fact for the court to decide. Clendennin v. Clancy (N. J.) supra.

Where one having a claim against a deceased debtor assigns it to himself and wife as executors of another decedent, and they bring suit thereon as executors against the representative of the deceased debtor, the assignor is not a competent witness to testify to any transactions with or statements by the deceased debtor. Murphy v. Schmidt (1911) 80 N. J. L. 403, 79 Atl. 293. The statute involved prohibited the giving of testimony by any party to an action, as to any transaction with or statement by any testator or intestate represented in the action, unless the representative offered himself as a witness on his own behalf and testified to a transaction with or statement by his testator or intestate, and it appeared that the representative of the deceased defendant was not sworn as a witness, and the court said that, therefore, if the assignor had been a party in his own right, and not a representative of his decedent, he would not have been qualified to testify as to transactions with or statements by the deceased defendant, and that the statute applied with equal force when both parties appeared on the record in a representative capacity.

But a holder of a claim against a decedent may qualify himself as a witness by assigning his interest in the claim, under a statutory provision that no person shall be excluded as a wit

ness except that neither party shall be allowed to testify against the other as to a transaction with a decedent in an action by or against his personal representative. Witte v. Koeppen

(1899) 11 S. D. 598, 74 Am. St. Rep. 826, 79 N. W. 831. It will be noted that this statute, unlike that in a large number of the states, does not extend the prohibition to assignors, and it was unsuccessfully argued, in effect, in this case, that it ought to be extended to assignors by construction, upon the theory that an assignor, while not technically a party, was in reality a party and came within the condemnation of the statute; but the court held under the general principle that when the enacting clause is general and a proviso is afterwards introduced, the proviso should be construed strictly, and that therefore the prohibition in this statute should be limited strictly to parties.

But in General Bonding & C. Ins. Co. v. McCurdy (1916) Tex. Civ. App. —, 183 S. W. 796, in reference to the enforcement of a claim against an estate by the assignee thereof, it was held under a statute prohibiting either party from testifying in actions by or against estates of decedents, that the assignor was not a competent witness. The court said that if every person who claims to have a contract with a decedent can, by assigning his claim, free himself of the inhibition of the statute against testifying to transactions with the deceased, the statute, for all practical purposes, would be rendered nugatory, and might as well be abolished.

Where the assignment by the lessee of the lease, in express terms, holds the assignor to his covenants in the lease, he is not a competent witness in an action by the executors of the lessor against the assignee for a breach of a covenant of the lease. Whitney v. Shippen (1879) 89 Pa. 22. And the assignment to the plaintiff, in an action by an administrator for a balance due the estate, by the assignor, of all the assignor's interest in the claim, although the assignment is bona fide and not made for the purpose of removing the disqualification

of the assignor, does not render him a competent witness under a statute providing that no interest shall exclude a person from being a witness, but further providing that the statute shall not apply to actions by or against executors, administrators, or guardians. Tinstman v. Croushore (1883) 104 Pa. 192.

Legatee, devisee, or heir.

A devisee and legatee incompetent to give evidence in an action to try the validity of the will, upon the ground of interest, is rendered competent by a deed purporting to convey all her interest under the will. Pegg v. Warford (1855) 7 Md. 582. It was contended in this case that the deed, having been made merely to restore the competency of the witness and not being a bona fide conveyance, is to be regarded as a fraud upon the law, and therefore not effectual to accomplish the purpose intended, but the court said that, though it had no doubt that such was the design of the transaction, still it could not be assumed as a legal fact, as the case was presented, that the deed was not executed in good faith; but that, whether it was or was not, it was sufficient to conclude the grantor from assailing it upon any such grounds, and for this reason her divestiture of all interest under the will might be said to be complete by virtue of such deed, and therefore she was a competent wit

ness.

And a brother of an intestate and one of the distributees of her estate, who has executed a deed releasing and conveying all his interest in the estate to his children and grandchildren, is not interested in a suit by her administrator to recover property alleged to belong to the estate, and the error in so holding is not cured by a ruling of the court permitting him to testify as a person interested in the suit, in virtue of a statutory provision, under the rule established, whereby his testimony is liable to be received by the jury with whatever discredit they may think fit to attach to it on such account. Fairly v. Fairly (1859) 38 Miss. 280.