Ralph against Brown, 3 Watts & Serg. 395

The opinion of the Court was delivered by Gibson, C. J. The plea in abatement, filed, as this was, after the period allowed for a general imparlance, might be properly set aside or treated as a nullity, (Tidd’s Pr. Troub. Ed. 730); but not for the reason assigned, that the matter contained in it was insufficient, though it was in fact so. The proper course for that, is to demur; but not to strike off or sign judgment, which can be done only when the plea is out of time, or otherwise irregular. Thus in Thellusson v. Smyth, (5 T.

R. 152), it was held that to warrant the signing of judgment for want of an issuable plea under a Judge’s order, it must appear that the one pleaded is a dilatory plea on the face of it; for that, if it go to the substance of the action, however bad it may be in itself, the plaintiff must demur: and in Coppin v. Carter, (1 T. R. 462), the court refused to consider not guilty as a nullity when pleaded to an action of debt on a penal statute. The court was, therefore, right, but for a bad reason.

Yet the substance of the plea was palpably bad; not, perhaps, because the pendency of an action in another State may not be pleaded in abatement of a subsequent action for the same cause here, but for the reason that the bill in equity pleaded here, was not in fact for the same cause. The suit pending below, was an action of debt on a judgment; and the bill pending in the chancery of New York, was not to enforce the judgment, but to have a discovery of the debtor’s effects under a statute of that state, and an injunction to prevent him from disposing of them.

The pendency of a bill in equity may doubtless be pleaded to a subsequent bill for the same cause; but surely, the execution of a judgment at law has not been committed to a court of chancery in any of the American States, though the power of such a court may be conveniently employed, as it was in this instance, as an ancillary one. But though the course of the court below was right in relation to the actual state of the case, it was wrong in relation to the case assumed; and we cannot but lament the disorder and looseness of practice which a course so

summary would, in any other case, have a tendency to produce. The rejection of Dimmock’s deposition, with the copy of the release which accompanied it, was an error. The original paper was in the hands of a person who could not be reached by the process of the court; and it was as much beyond the defendant’s power to compel the production of it, as if it had been destroyed. That person had reason to retain the custody of it, as it contained other releases which were incorporated with it ;■ but whatever the reason, it was enough that he did not choose to part with it. What could the defendant do?

He had proved the execution of the original by the plaintiff’s admission, which, as the testimony of the subscribing witness had not been called for, was sufficient to go to the jury; and he had proved the faithfulness of the copy by a witness who had compared it with the original. The court rejected the whole, because it appeared on the face of the deposition, as it was said, that the material facts referred to by parol, were in writing; and that as the interest of the witness was pleaded in bar, it was to be presumed he would have refused to testify, had he known that he was to be treated as a party.

His testimony, however, was not adduced to prove the judgment or the contents of the release; but to show what the plaintiff had said in relation to their existence. The judgment itself had been produced by the plaintiff, and a copy of the release was offered by the defendant in connection with the parol evidence to make way for it as proof of the contents of the original. The witness might certainly speak of them- as matters of inducement to the copy; and the deposition, therefore, contained nothing that was secondary.

Nor is there more force in the reason that the witness must now be taken to be a party in interest. His testimony was adduced to operate against his supposed interest; as in Purviance v. Dryden, (3 Serg. & Rawle 402), where the testimony of a defendant, sued but not taken, was received for the plaintiff. What was this plea of interest 1 If it was anything but a plea in abatement for the non-joinder of the witness as a party to the original contract, it was insensible and void.

But it could not be received as a plea in abatement, not only because it was out of time, but because the original contract had merged in the judgment on it which had been rendered in favour of the plaintiff alone; and which is the foundation of the present action. As a plea in bar, it did not answer the declaration; for it will not be said that an action cannot be maintained on a judgment by the legal party, if another have a beneficial interest in it.

It could be maintained in the name of no one else; and though it might be marked to the use of another, in order to show a particular interest, yet that is not so indispensable that the omission of it can be pleaded in bar; it is a matter between the actual and the nominal plaintiff, with which the defendant has no concern, the legal title being enough for a recovery against him. The plea, therefore, was a nullity in every respect, and ought not to have been received. But being received, it did not change the position of the witness.

If he was a party in interest after it, he had been a party in interest before it. Nor is the effect of it to subject him to liability even for costs; for to do that, would be the province of the court, not of the jury. But a witness cannot refuse to answer, though his testimony may subject him to a civil liability. That principle was settled by Baird v. Cochran, (4 Serg. & Rawle 397), and Nass v. Vanswearingen, (7 Serg. df Rawle 192), as it was in England at the same time, by statute. Besides, a witness may choose to testify against his interest, and who is to prevent him ?

It is said this witness might perhaps have refused to be examined, had he known that he was to be treated as a party. What then 1 The exemption of a witness from examination is his privilege, not that of the party against whom he is produced. If he do not demur, no one else can; for he is the person to be protected. Nor is the violation of his right a subject of exception; for no one else is injured by it.

If the suppression of the evidence were the right of the party, he might enforce it where the witness might be willing to waive it; but though the Judge ought to advise the witness of his privilege, (Southard v. Rexford, 6 Cow. 245), he cannot compel him to exercise it. The court went too far, then; for there is no reason to presume the witness would have refused to testify had he known that the plea would be filed. There was no force in the objection to the evidence as it was put before the court. It was, indeed, held in M’Reynolds v. M’Cord, (6 Watts 288), as it is laid down in the text-books, (1 Stark.

Ev. 341), that proof of execution by the subscribing witness, where there is one, must precede the proof of contents; but no objection seems to have been made on that ground, and the defect may be supplied for the time to come. It is scarce necessary to say, that the rate of interest prescribed was the proper one. Judgment reversed, and venire de novo awarded.