Burrell v. Bull.

Bull without being reduced to writing. He at any rate must

account.

VIII. By the agreement of the 9th and 10th of December, 1842, the defendants, Bull and McKean, and the complainants became partners, and the new lease, as well as the property purchased at the landlord's sale, enured to the benefit of all; and the defendants having disposed of the whole for their own benefit, must now account with complainants for the property and for the profits which might have accrued, but for their mismanagement. (Story on Part. 619, 629, and notes; Pickering v. Bolles, 1 Bro. C. C. 197; 17 Vesey, 298, 305, 311; 1 Ball & B. 29, 46, 47; 1 ibid. 499, 417, Mulvany v. Dillon.)

IX. The defendant Burke, having purchased the property with his eyes open, and after full notice, got no title, as against the complainants; and he must therefore account.

Mr. Man, for the defendant Bull, made the following points: I. Stewart is incompetent as a witness for the complainant. (2 Kent's Com. 178, 179, note d.; Gresley's Eq. Ev. 246; 5 Russell, 19; 2 Fonbl. Eq. 457, note; 1 Bl. Com. 443; 1 Burrow's R. 443; 2 Stark. Ev. 400, 708; 7 J. J. Marsh. 263; 6 Binney, 483; 1 Phill. Ev. 76, 82; 8 Paige, 49, 50; 2 Cow. & Hill's Notes, 1556; 7 Johns. Ch. R. 229, 245, 247; 1 Ry. & M. 352; 4 T. R. 678.)

II. Pine and Burke are also incompetent as witnesses for the complainants. (5 Paige, 638; 1 Barb. Ch. Pr. 259.)

III. The complainants cannot have a decree against Bull, because by examining Burke, who, or whose property, is primarily liable, they have discharged both him and Bull so far as the present suit is concerned. (Bradley v. Root, 5 Paige, 632, 636, 637; Thompson v. Harrison, 1 Cox, 344; 1 Barb. Ch. Pr. 258, and cases there cited; Bernall v. Donegal, 3 Dow's P. C. 133, 150; Meadbury v. Isdall, 9 Mod. 438; Ambler, 878.)

Burke and his property being discharged, no decree can be made in this suit, which will not be inconsistent with the case made by the bill. (Colton v. Ross, 2 Paige, 396; Story's Eq. Pleadings, 42; 1 Barb. Ch. Pr. 37; Mitford's Pleadings, 38 and 39, and cases there cited; 2 Peter's R. 595, 612.)

Burrell v. Bull.

IV. The landlord's sale divested Stewart's, (or Burrell's) rights in the fixtures, furniture, &c., and vested the title in McKean, and through him in Bull. Complainants are bound by Stewart's acts and defaults.

V. The statute of frauds is an entire bar, so far as the claim to the present lease is concerned. The pretended agreement for procuring and sharing in a lease was void by the statute; and the pretended agreement between Bull and Irving for a lease was also void by the same statute. (2 R. S. 134, § 8, and compare sections 6 and 7; 1 R. L. p. 78, §§ 9 to 14; Notes of Revisers, 3 R. S. 655; Story's Eq. Jur. § 563, 566, note, 768; 2 Paige, 181; 4 ibid. 197; 2 P. Will. 620; 2 Atkyns, 150; 1 Fonbl. Eq. B. 1, ch. 3, § 8.)

VI. The doctrine of resulting trusts, or trusts raised by operation of law, does not apply to the present case. (1 Hilliard's Abridg. p. 214, §§ 31 and 32, and cases, viz: 1 Vernon, 276; 5 J. C. R. 388; 2 ibid. 409; 2 Atkyns, 71; 4 Bibb, 102; 2 Story's Eq. 768.)

Mr. Lockwood, for McKean, urged substantially, the same grounds; and cited in addition, German v. Machin, 6 Paige, 288, and 1 Barb. Pr. 258.

THE ASSISTANT VICE-CHANCELLOR.-The defendants move to suppress the deposition of Mr. Stewart, who was sworn as a witness for his wife. He has no interest in the event of the suit, and the objection of bias does not go to his competency.

But on the ground of public policy, I think he was an incompetent witness.

The complainants relied upon the case of Richardson v. Learned, (10 Pick. 261,) where the Supreme Court of Massachusetts held the husband to be a competent witness for the trustee of the wife in an action for a part of her separate estate. The conclusion was deduced from the fact that the husband had no interest in the event of the suit, without adverting to the effect of the principle upon the married relation. On the other hand, in Snyder's Lessee v. Snyder, (6 Binney, 483,) the Supreme Court of Pennsylvania came to an opposite conclusion,

Burrell v. Bull.

reposing their opinion upon what appears to be the true ground, public policy.

In Hopkins v. Smith, (7 J. J. Marsh. 263,) the Court of Appeals in Kentucky decided that the husband, although not interested, could not be a witness for the wife's trustee in an action of trover for a part of her property.

In England, the only case admitting such testimony, is Burridge v. Winter, (1 C. & P. 364,) at Nisi Prius, before Abbott, Ch. J. That case was contrary to Monroe v. Twistleton, (Peake's Ev. by Norris, 248, and Appendix, 29,) previously decided by Lord Alvanley, and to Doker v. Hasler, (R. & M. 198,) decided by Best, Ch. J., the same year that Burridge v. Winter was tried. And the latter case was expressly overruled in O'Connor v. Majoribanks, in the C. P., Trin. T. 1842, and the rule established, on consideration, that husband and wife should not be witnesses either for or against each other in civil cases; and that without regard to the circumstance whether the fact came to them confidentially or otherwise, neither could be permitted, even after the marriage terminated, to testify concerning what transpired between them during the marriage, or came to their knowledge by reason of the relation of husband and wife; (6 Lond. Jur. Rep. 509; 5 Scott's New Rep. 394.) This accords with the Chancellor's view of the true reason of the exclusion, as stated in The People, ex rel. Barry v. Mercein, (8 Paige's R. 50,) and which I feel bound to adopt. The Supreme Court go upon the ground of confidential communications in Ratcliff v. Wales, (1 Hill, 63,) and Babcock v. Booth, (2 ibid. 181.) The authorities are decidedly against the competency of the witness, and his deposition must be suppressed. And see farther on this point, Greenleaf's Ev. 384, et succ., § 334, &c.(a)

The testimony of William Pine is objected to on the ground.

(a) In Langley v. Fisher, the Chancellor of England, April 10, 1845, held, affirming the decision of the Master of the Rolls, that a husband could not be compelled to testify against his wife in a suit affecting her separate estate. Reported before the Chancellor in 9 Lond. Jur. Rep. 837, and 14 Law Journal, N. S. Chy. 102; before the M. R., 7 Lond. Jur. Rep. 164, and 15 Law Journal, Chy. 73.

Burrell v. Bull.

of interest. It is said he was liable to pay the rent as between himself and Burrell, and a decree in favor of Burrell will satisfy that liability.

If that be the result, I think his interest is balanced. There is nothing to prevent Bull and McKean from suing him upon their respective mortgage debts, for whatever sum they were compelled to pay by reason of the fourth of the rent in arrear when they took possession. The amount applicable to the reduction of their mortgage debts, is diminished by the amount of such rent then chargeable on the property surrendered; and although their mortgages were upon three-fourths only of the stock and fixtures, yet their rights and interests as occupants of the premises, were affected by the entire rent in arrear. The answers show that when they contemplated paying the arrears, it was the whole, and not three-fourth parts, that they designed to pay. Thus it seems that Pine was liable to the defendants, (and so remained when he testified,) and if the result of this suit should cause them to pay the one-fourth of the rent which was in arrear on Burrell's one-fourth of the lease, it will not exonerate Pine from answering over to them in respect of the thereby increased deficiency upon his mortgage debt.

There is another ground which is decisive of this question. The allegations in the bill would be a complete defence to Pine in any action brought by Burrell for his omission to pay the rent. The bill shows that Burrell ratified and adopted Pine's surrender to the defendants, and accepted their engagement to pay the rent. This was a satisfaction of Pine's liability in that respect.

The defendant Bull moved to suppress the re-examination of W. Pine on the 25th of October, 1844; because his examination had been closed, and was then resumed upon the same matters. The first objection taken before the examiner fails because the ground of the objection was not stated. When the objection is taken at folio 240, the ground is stated, and the question and answer on that folio must be suppressed.

There is also a motion to suppress the testimony of Burke, because he is a party defendant, and it is said is primarily liable for the claim made by the bill. As to the former objection, the fact does not appear on this motion that a replication was filed

Burrell v. Bull.

to his answer. Hence his being a party, is not of itself a ground for excluding his testimony. As to his interest, he was not liable. at all to the complainant in equity, unless he bought with notice of the rights stated in the bill. If he did buy with such notice, he became a participant in the fraud which the bill charges upon Bull and McKean. For such fraudulent conduct, the complainant could recover against the latter alone, or against them and Burke also. If he chose to omit Burke, and should recover against the others, there would be no contribution due from Burke to them. And a recovery against them, without satisfaction, would not prevent a recourse to him. Thus Burke has no interest which makes him incompetent. He may have a bias, strong in proportion to the probability of the complainants proving notice against him, conjoined with the prospect of their obtaining full satisfaction upon a decree against Bull and McKean.

The point that Burke was primarily liable, was urged against any decree being made at all, as well as against the competency of his testimony.

The only liability of his which can be so considered, is for an account of the profits subsequent to the time when he took possession of the refectory. This account is doubtless waived by the complainants using him as a witness.

In respect of the account claimed after the sale on the landlord's warrant and before Burke took possession, he has no interest whatever. And in respect of the claim for an account of the sale of the stock, fixtures, possession and lease to Burke; the parties who made the sale and received the proceeds of it are primarily accountable on the case made by the bill. It would be very hard if Burke should be held accountable before those who obtained his money by the alleged fraud upon the complainants.

Upon the merits of this case, I have had no difficulty, notwithstanding the elaborate and ingenious argument of the counsel for Bull.

The testimony establishes that Bull and McKean, for the consideration of obtaining the immediate possession of the refectory, agreed to pay the rent then in arrear. Whether one-fourth of it