Massey v. Rogan , 6 Ala. 647 ( 1844 )

COLLIER, C. J.

To disqualify a witness upon the ground of interest, it must be shown that he will either gain or lose by the direct legal operation and effect of the judgment, or that the record will be evidence, either for or against him, in some other action. It must be a present,. certain and vested interest, and not uncertain, remote or contingent. [Greenleaf’s Ev. 434.] In Van Nays v. Terhune, [3 Johns. Cases,] the supreme court of New-York held, that an examination of all the authorities, show the genei’al rule to be, that if a witness will not gain or lose by the event of the cause, or if the verdict cannot be given in evidence for or against him in another suit, the objection goes to his credit only, and not to his competency. [See also, McGee v. Eastis, 5 Stew’t & P. Rep. 426; Kennon v. McRea, 2 Porter’s Rep. 389.] In Phillips v. Bridge, 11 Mass. Rep. 242,] which was an action against a sheriff for the default of his deputy, the question was, whether the execution had been delivered to the latter in due season; the plaintiff offered the attorney, who issued the execution, as a witness to prove the delivery. The defendant objected to the competency of the witness, on the ground that he would be liable to the plaintiff if the execution was not delivered in due season. But the court held, that his interest was too remote and contingent to disqualify him. It is needless to multiply authorities upon this point, for they all concur in stating the general principle, and only differ in its application to particular cases. [2 Phil. Ev. C. & H’s notes, 94; 3 id. 1514.]

It is clear that a judgment in this case in favor of the plaintiff, could not be used as evidence against the witness on the trial of a suit against him by Walker, for the defendant’s escape. We cannot discover that it would have any influence upon the result of such a case, either to fix a liability, or to increase or diminish the quantum of damages. True, if Walker’s judgment should be satisfied from the proceeds of the property attached, he of course will not have been prejudiced by the escape of the defendant; and the failure of the plaintiff to recover in the case before us, will increase the probability that the judgment will be thus paid. This shows, that the witness had sufficient reason to desire, that the defendant should have been successful in defeating a recovery; yet, as the judgment, however it might be, would not be evidence in an action against him, his interest was not in the event of the suit, but in the question merely. The objection then went to his credit, and not to his competency; and consequently, he was improperly excluded.

The judgment of the circuit court is reversed, and the cause remanded.