Jones v. J. & W. Park , 1 Stew. 419 ( 1828 )

By JUDGE GAYLE.

In the argument it was contended, that the defendant below had no right to have M‘CuIloch sworn as a witness, without stating the particular facts intended to be proved by him; for he was incompetent to prove some facts that were involved in the investigation, such as went to establish the validity or nullity of his own deed of sale. It seems to the Court, that the true question before the Court below was, whether M‘Culloch’s interest was so equally balanced between the parties as to remove the temptation to perjury, which the law presumes to exist whenever the witness is directly interested in the event of the suit. He had sold the slave to both plaintiffs and defendant, and was accountable to whichever might fail in the suit. No reason can be discovered why the objection could not as well be made by the one as the other of the parties. There was no legal inducement for the witness to incline to either side; and the entire equipoise of interest rendered bim as competent as if he had been a stranger to the suit. It is said, however, that the indtm-nity given to Jones, destroyed the indifference he might otherwise have felt, and made him directly interested in the success of the defendant below. The record shews that when the witness was offered, the indemnity was not known to the Court, and he must have been rejected without any reference to the objection it might have interposed. And even after the said indemnity was given in evidence, it does not appear that the said witness was offered. But if this could have weighed any thing on the mind of the Court, or if it had been insisted on as an objection to the witness, it was only a circumstance affecting his credit, and did not render him at all incompetent. He was left equally liable to both parties and to the same extent, though Jones might have enforced payment by means of the indemnity sooner than could have been done by the Parks.

As to the other assignment of .error, that the deed of indemnity was improperly admitted in evidence, the Court are of opinion that it was not pertinent to the issue, and could have had no tendency to prove any fact material in the cause. It could not shew that Jones had notice of the Parks’ title, for it was given long after MlCul-loch moved to this State, and after he had sold the slave to Jones. The only effect it could have had was to influence the jury to find in favor of the plaintiffs, on account of their want of a similar indemnity, which was wholly immaterial to the issue between the parties.

Judge White not sitting.

Reversed and remanded.