Harbin v. Roberts , 33 Ga. 45 ( 1861 )

By the Court —

Jenkins, J., delivering the opinion,

To test the competency of the witness, "Wellborn, (objected to on the score of interest) he was examined on his voire dire. He stated that “ the notes sued on, together with others, had been transfered to him as collateral security for a debt due him by the plaintiff, but, that the other notes held in like manner, >vere abundantly sufficient to secure his debt.” The latter declaration is relied upon to show the absence of interest and to establish his competency. The interest.to disqualify the witness “ must be some legal, certain and immediate interest, either in the event of the cause itself, or etc.” 1st, Greenleaf on Evidence, section 386. Wellborn has the legal title to the notes. In the event of a recovery, he would be entitled to the money recovered. He would be immediately be'nefitted thereby. True, if this recovery be defeated, he has other recourse; his debt is not thereby certainly lost, but his security is weakened, and there is no absolute certainty that the remaining security would be available. The recovery in this case would make certain, that which must otherwise remain uncertain, viz : the realization, pro tanto, of his chose in action. He had a legal interest because the title was in him. He had a certain interest because it did not rest in hope or expectation, but accrued by contract. He had an immediate, interest because the fruits of the judgment in the event of recovery would pass to him. “When the immediate effect of a judgment for the plaintiff is to place the witness in the enjoyment of a right, he is incompetent.” 1st Greenleaf on Evidence, section 392; Rex vs. Williams, 9 B. and C., 594.

Although the proper test of disqualifying interest, is the legal conclusion from facts developed, as already applied in this case, that conclusion is strengthened by the apparent ' impression on the witness’ mind. He would not say .he had no interest. He refused to release any interest he might have. He evidently thought as we think, he had an interest and refused to relinquish it.

This Court has expressly decided that in an action of covenant on a warranty of title, the judgment against the warrantee in an action of ejectment upon a paramount title, was sufficient evidence of eviction without adducing a writ of possession executed. This ease rests upon the same principle. The plea interposed against the recovery on the notes, is failure of consideration, which consists in these facts, viz: the notes were given for a tract of land, which has since been levied upon under an execution against the vendor and payee of the notes, for a sum larger than the amount of the notes. The vendee and maker of the notes interposed a claim to the land, under our statute, and by final judgment the land has been made subject to the execution, and the charge given is right. It follows from the ruling, that the Court below properly refused to give the charge asked by the plaintiff. We therefore hold that, that Court committed no error in overruling the motion for a new trial.

Let the judgment be affirmed.