Owen v. Mann , 2 Day 399 ( 1807 )

By the Court.

An action of ejectment was brought by Omen against Mann ; and the controversy between them solely regarded the title to the estate demanded. The defendant claimed to hold under a deed with warranty from one Barber, to whom he had given his note for the purchase money. The note was assigned by Barber to one Jones ; and after the commencement of the ejectment, the latter applied to the defendant for payment. This the defendant refused, until a final trial of the action should ascertain,, •whether the money was equitably due. Eventually, however, he made payment of the note on this condition, that Janes should refund and payback the money, if judgment in the suit aforesaid, should be rendered against tjie defendant. To this effect Jones executed a covenant, in which it was agreed, that the note should remain in his possession, aS if nothing had been advanced upon it, so that in the event of a recovery by Omen against the defendant, he might take his remedy against Barber, his indorser. Barber, it appeared, was a man of property.

At the trial, the defendant offered Jones as a witness ; to whose admission the plaintiff objected, that he was interested in the event of the suit. The Court, however, admitted him ; and to reverse the judgment on this ground, is the object of the present writ of error.

That an interest in the event of a suit, however trivial, disqualifies a person from being a witness ; and that Jones was interested in the determination of the action under consideration, are propositions too clear to admit of controversy. If judgment should be rendered against the defendant, the covenant of Jones obliged him, immediately to refund the money paid to him. He then was directly interested to defeat the action of the plaintiff.

It has been said, that if the plaintiff should recover, Jones Would have his remedy against Barber upon his indorsement ; and that this right of action renders him totally indifferent between the parties.

It cannot be denied, that if the interest of a person in fa-vour of one party, is counteracted by an equal interest in behalf of the other, he is a competent witness, ^(e) Hut, if there be the least inequality of interest, that is, if a recovery on one side is more interesting to the person in a pecuniary view than on the other, he cannot be admitted to testify. The law demands, that witnesses should be wholly indifferent., with minds entirely free from any pecuniary bias in favour of either party. Hence, it has been determined, that if the proffered witness has an interest to the amount ot a moiety ol' the costs, this shall effectually exclude him. ^(f)

It is manifestly clear, that Jones was not this indifferent ■witness. If judgment should be rendered against the defendant, he would be obliged immediately to refund the money received of Mann, while his demand for a similar amount of Barber, might long be postponed, be sought after with great expense, and eventually fail, through Barber’s insolvency. The obligation to refund, in the event of a judgment against the defendant, would be certain ; but the reimbursement by Barber, at best, would be contingent.

That bail cannot testify for his principal, is too well settled to require the formality of proof, ^(g) Rut the condition of bail in point of disinterestedness, in all respects, is equal to that of Jones in the case under discussion, and in one particular, preferable. A judgment against the principal, is pot necessarily accompanied with an obligation of payment upon the bail. The money may be collected of the principal ; and the attempt must be made, before the bail can be subjected.

If, however, the judgment is not satisfied by the principal, then the bail may be compelled to pay it. At this precise point of time, the condition of bail and that of Jones are perfectly parallel. Each is obliged to satisfy the judgment which subjects him, and each has a hold upon another for indemnity.

It has been determined, that, although a plaintiff be barely a trustee for another, he is an incompetent witness for him. For he is personally answerable, in the first instance, for the costs of suit ; and the chance he rnay have of indemnity from the person for whom he acts, does not remove the interest which the certain liability creates. ^(h) The case of The King v. The Governor and Directors of the poor of St. Mary Magdalen Bermondsey ⁽ⁱ⁾ extends the full length of the present case.

The Court is, therefore, of opinion, that Jones was not a competent witness ; and the judgment of the Superior Court must be reversed.

(e) Peake’s Ev. 154, 165. 1 'Esp. Rep. 332. 7 Term Rep. 480,1.

(f) 1 ’Esp. Rep. 103, Young v. Bairner.

(g) 1 Term Rep. 164.

(h) Peake’s Ev. 149.

(i) 3 East 7.