Bowen v. Bowen , 20 Conn. 127 ( 1849 )

Waite, J.

The first question presented upon this record, is, whether Amasa Bowen, one of the defendants, was an admissible witness for Millard Bowen, his co-defendant. The rule in equity, as well as at law, before the recent statutes, was, that if a defendant had no interest in the result of the suit, he might be a witness; but if he had such interest, he could not be called by a co-defendant.

It was upon that principle, that a defendant in a recent case before us, was holden to be a competent witness. Butler v. Elliott, 15 Conn. R. 205. It appeared that he had no interest in the suit, and that no decree could be made against him. And this rule was recognized in the English courts, prior to their recent statute upon the same subject-7 & 8 Vict. c. 85. 2 Daniel’s Chan. Prac. 1043.

In the present case, the defendant offered as a witness, was a party materially interested in the suit, and liable to be affected by the decree, should the plaintiff succeed in obtaining one in his favour. It is true, he was not one of the heirs of Eleazer Bowen; but under the deed to the plaintiff and Anthony Bowen, he was entitled to the payment of a certain sum of money. In what manner that payment should be made, whether, in part extinguishment of a debt which he owed, or in some other manner, was a question involved in the case, and in which he had an interest. Under the rule, therefore, excluding parties on the record, who are interested in the result, he was an incompetent witness.

But it is said, he was called to testify to facts and matters no way affecting him, but for the benefit of his co-defendant.

What these facts and matters were, it does not appear that the committee was informed. As a general rule, a party upon the record is not a competent witness; and before he can be admitted, it is incumbent upon the party offering him, to show that he is disinterested.

In what manner the witness could testify so as to benefit his co-defendant, without, at the same time, promoting his own interest, does not appear from the case ; and we think, that that ought to have been shown to the committee, before he could be admitted, even if he were then admissible.

As the case is presented, we cannot say, that the committee erred in rejecting the witness; or that a new trial should be granted.

2. The next enquiry is, whether, upon the facts reported by the committee, the plaintiff is entitled to the relief he seeks. And this precise question seems to have been settled by this court, in Walker & al. v. Wheeler & al., 2 Conn. R. 299. There, the testator, by his will, devised certain real estate to his two sons, they paying to his two daughters the sum of three hundred dollars each, within one year after his decease. The sons failed to pay the daughters within the specified time, but six weeks afterwards tendered the amount, with interest, the receipt of which by one, was refused. That daughter and her husband afterwards brought their action to recover possession of their share of the real estate so devised. One of the sons and the heirs of the other son, who had died, then brought their bill in chancery against the two daughters of the testator, to regain the title which had been forfeited, by the non-performance of the condition; and this court granted the relief, and held, that “ where a condition has not been performed by the time, and compensation can be made, a court of equity will interfere and grant relief.”

That case so clearly resembles the present, in all its essential features, that we deem it unnecessary to examine the subject further.

The committee has found, that shortly after the expiration of the time limited in the deed for the payment of the money required to be paid to Amasa Bowen, the amount of the principal and interest of that sum, was tendered to him. This gives the plaintiff a right to the relief he seeks.

With respect to the several suits against Amasa Bowen, we do not see that they give the plaintiff any right to retain the money tendered ; nor do we see any sufficient grounds for decreeing a set-off of one debt against the other. The debts are distinct and independent ; and it is not even averred, that Amasa Bowen is insolvent. No ground therefore exists for decreeing a set-off.

We therefore advise the superior court to accept the report of the committee, and grant the prayer of the plaintiff’s bill.

In this opinion the other Judges concurred.

Decree for plaintiff.