Burt v. Nichols ( 1835 )

Wilde J.

delivered the opinion of the Court. It seems to us quite clear, that the evidence objected to by the plaintiffs’ counsel was rightly admitted, as the witness stood indifferent between the parties, and the verdict, whether for the plaintiffs or the defendant, could not be given in evidence for or against the witness.

The witness admits he received from the defendant the sum of $20-46 for the plaintiffs, and it is indifferent to him whether he is liable therefor to the one party or the other. And in no event can he be liable for the costs of this suit. For suppose the plaintiffs had recovered, the witness would not have been liable to the defendant for such cost. There was no agreement to indemnify the defendant in any event. The agreement as to the payment to the witness, was made between him and the plaintiffs, and it does not appear that the witness has ever been called upon by the olaintiffs to account. The witness, therefore, as it appears by the evidence, has been in no fault, and cannot be liable for the costs of this suit. This case then is not open to the doubt which has been raised in some of the cases, where the witness would be liable for costs to one party and not to the other.

It is quite clear, also, that if the plaintiffs had recovered, the verdict could not be given in evidence in an action against the witness in favor of the defendant. The verdict would not show whether the witness had accounted with the plaintiff’s for the money received by him, or not. It would therefore be res inter alios acta, and not competent evidence.

Judgment of the Court of Common Pleas affirmed.