Fleming v. Dorn , 34 Ga. 213 ( 1865 )

Lyok, J.

dissenting.

My objection to the admissibility of this witness, is, not that he is a party to the record — that I regard as a settled question — but, that he is interested in the result of the suit; that his interest is legal, certain, and immediate,; and that this interest has not been removed by the releases executed between the witness and his brother; by the deposit of the Confederate treasury notes in Court by the co-defendant; or by any, or all the acts done with this intent; and that this interest can not be removed, except by the consent of the plaintiff or his satisfaction; and that, until this is done, or the law is changed, he is incompetent to testify in this case. To illustrate: although this partnership had been dissolved, and the proposed witness had no interest in the partnership, yet, as the dissolution had not been published to the world, and as the witness had allowed his brother to use his name as a partner in the warehouse, to get custom, &c., his liability was as complete to those who dealt with the partnership, as that of his brother Eobert. This is not denied. Now, notwithstanding the releases and agreements between Porter and Eobert Fleming, and the deposit of the money in Court by Eobert Fleming to meet such recovery as the plaintiff might have, still, the plaintiff was not bound by these releases, bonds, and agreements; nor was he bound to look alone to the fund deposited in Court to meet his judgment. The judgment, when recovered, would bind all the property of both defendants — the money on deposit in the Court, the property of Eobert Fleming, and all the other property, both real and personal, of both defendants — and he could have his-execution turned upon the property of either, at his option,, to satisfaction. Such is the right of a judgment creditor,, under the laws of this State. Is not the interest of the witness, then, palpable and manifest? -It is said, that if there should be a recovery, notwithstanding the testimony of this-witness, there is nothing to be done but to take an order of Court to pay over the money to the judgment, and, thus the liability would be ended. That may be true — that is, if the money should be there at the end of the litigation. But who is to answer for that ? Who is to take that risk ? Suppose the money should perish, as the money deposited in this case did perish. Suppose the Clerk, or custodian of the money appointed by the Court, should appropriate the money? Or suppose, without any fault of his the money should be stolen or destroyed, (and these are not far fetched contingencies ; they are such as happen constantly — are liable to happen at any time with the best and jnost reliable of custodians or bailees,) is the plaintiff to take the risk? And why? That is not his contract. He bargained for the liability of Porter Fleming; that is the security he took for his protection ; lie had the right to do so; arid what Court or other tribunal in this land, has the right to change the security he acquired by his own contract? That is what is proposed to be done in this case ; to extinguish and discharge a security that this plaintiff acquired under his contract, and to substitute a new and. wholly different one in lieu, without his consent, and against his objection. Surely this cannot be done, under the Constitution and laws of this land.

Counsel for the plaintiff insist, that they had the right to • deposit the money in Court, at the risk of the defendant, as they could have done in a tender of payment and refusal. Hot so. The cases do not bear the slightest analogy to each other. In a tender, the money is placed in Court as the property of the creditor — not of the debtor; and he can take it whenever he chooses to accept it as satisfaction, or, as some one-jocularly remarked in the hearing of the Court, whenever he gets over his mad fit. Hot so in this case; the creditor was willing and anxious to take the money and be satisfied.. He was not prosecuting his suit for blood — but money; and that was precisely what the defendants in the suit were fighting against. It was not put in Court for his benefit, but to create a means to defeat his recovery of any part thereof.

It is true that the deposit of the money in Court is, or may be, an ample protection to the witness against loss— against an ultimate liability to pay or to lose the money ; but it does not extinguish his liability; that continues. His liability is still as complete, certain, and immediate as is that of a security for a fire-proof principal who has always to his credit, in a fire-proof bank, double or treble the amount. I mean by fire-proof, one that is so solvent and good that there is no possible danger of failing; and yet such a person— such a security, could not be admissible to testify at the instance of such a principal, in a proceeding to recover the debt: And why ? Because he is liable for the debt as much as the principal; and so is this witness. Hay, more — he is one of the principal debtors: It is true, also, that when the money is deposited in safe hands (it being deposited with the Clerk of the Court does not sanctify the transaction ; for there is no law for such a thing, under the circumstances— it might as well be deposited in bank, except, that here, the Clerk could be ruled as an officer of Court, and so could any other person who took, under the sanction of the Court and parties, as a receiver), the risk of the witness to pay the debt, is small; but that does not weaken the objection, for no matter how small the interest may 'be, still, if it is legal) certain, and immediate, the witness is incompetent.

I have not cited any authority; for the rules that I rely upon are so familiar with the profession, that reference to authorities to support them, would be simply silly.

Counsel for the plaintiff read and relied on section 3785 of the Code, as follows: “ A deposit of money to cover all east, or any other act which, in the judgment of the Court, relieves the witness from his interest or other ground of incompetency, will restore his compietency.”

This does not change the rule; it is only a statement of the law, as it had long been settled, that a party to.the record, not interested, or whose interest had been removed by the deposit of money for costs, as had long been sanctioned by the Court was competent. It did not mean a deposit of money to meet and satisfy the judgment in case of a recovery — far from it. The act done to restore the competency of the witness, or to render him so, must relieve him from all interest. Whenever, and however, that may be done, the witness or party to the record will be competent. That is my understanding of the Code, and I make no issue but assent to it as sound law; but what I say is, that the interest of the party here, remained, notwithstanding the deposit and other acts.

A number of cases were read from the Reports of this Court, where parties to the record were allowed to testify. It is unnecessary to refer to them, as I make no issue with them. They went upon the ground that the parties to the record allowed to testify in those cases had no interest; and when that is the case, I admit the competency.

For these reasons, I dissent from the judgment of the Court.