Stimmel v. Underwood , 3 G. & J. 282 ( 1831 )

Archer, J.,

delivered the opinion of the court.

The question has been discussed, whether a witness’s belief of his interest in a cause, when in truth he has no interest; or whether his being under an honorary obligation to pay, if the person for whom he testifies fails in the action, will render him incompetent. Upon this subject there has certainly been much diversity of opinion ; but the current of decision in modern times, both in England and the United, States, has set against all objection to the admissibility of a witness, unless his interest be a legal interest. Notwithstanding the determination in 1 Strange, 127, and the views expressed in 1 lien. Black, 307, the universally received opinion in England, at this day, is against such objection, as will be perceived by a reference to 1 Phillips' Ev. 40; 2 Stark. Ev. 746, and 2 Saund. Plea. and Ev. 560. These books are not cited as of authority in themselves, but as indicating that the opinions of men of science, at this day, in that country, are in favor of the modern decisions. In this country too, although there is considerable diversity of views, in the different States upon these subjects, the opinion, that the witness is admissible, appears to be gaining ground. In Kentucky, Massachusetts, and Virginia, the witness is excluded; in Vermont he is admitted; 2 Tyler, 273; and whatever views may at one time have been entertained in Pennsylvania, upon this subject, the rule is now definitively settled, as will appear by reference to 2 Binney, 497. 3 Serg. and Rawle. 130, and 4 Ib. 226, that the witness is competent. The same remarks may perhaps be also made in reference to the State of New York, 9 Johns. 220, 3 Cowen, 252. And in this State it was determined as long ago as the year 1799, by the General Court* in the case of Peters vs. Beall, 4 Harr. and McHen. 342, that where evidence was offered to the court, to show the interest of a witness, if it appear to the court he is not interested, he shall be sworn, although the witness himself should think he has an interest. Upon principle, there can be no propriety in rejecting the witness, for if he believes he has an interest, all the bias arising from the existence of such a belief, it might reasonably be presumed, would be removed when he is informed by the court that his belief was unfounded, and that in truth he had no legal interest. But if a bias should, notwithstanding, remain, it ought to go to his credit, and not his competency, there being no other safe standard of exclusion, than the existence of a legal interest. If it were to be considered, that the true test, was the witness’s belief, he might, notwithstanding a release, disbelieve in its efficacy to discharge him. Nor can there be any propriety in rejecting a witness, who feels himself under an honorary obligation to pay the debt; for it has been well observed, that it would savour of inconsistency to discard a witness as unworthy of belief, whose honor coerced him to pay money, which the law would not compel him to pay. The same feeling which would induce him to pay the money, would more strongly prompt him to speak the truth.

But the case before the court is not one in which the witness, when called to the stand, swears he believes he has an interest in the event of the suit, or that he is under an honorary obligation to pay, unless there should be a recovery against the party, against whom he is called to testify ; but evidence is adduced to show, that the witness, attempted to be excluded, had four months before the trial of the cause, been heard to say, that he felt himself bound to pay the plaintiff the amount in litigation in that suit, if the plaintiff did not recover. It is clear he had no interest in the event of the suit, and if he had any, it had been formally released. This case then presents the question, whether the mere declaration of a witness, as to his obligations, can render him incompetent to testify, although the witness shall palpably have mistaken his legal obligations, or viewing the declarations of the witness, as referring to a mere honorary obligation, whether such declarations, will exclude him from testifying? Now, if these declarations, when made by the witness on the stand, under oath, would not, and ought not, to exclude him, a fortiori, his statements and declarations, not under oath, ought not to exclude him; and even, if at the trial, his belief of his legal or honorary obligations rendered him incompetent, it would not follow that his declarations of such obligations, anterior to the trial, would, or ought to have the same effect: for his notions of his obligations may have undergone a change between the time of the making of such declarations and the trial—and at the time of the trial his mind might be free from all bias, which such belief might be calculated to produce 5 besides, the establishment of such a principle, would seem to lead to consequences subversive of justice in many cases, for the doctrine assumes, as has been well observed, the truth of unsworn statements, and enables an unwilling witness, ad, libitum, to deprive a party of his testimony. In conformity with these views, the cases of 5 Massa. 261, and 8 Massa. 487, were decided.

The court are aware of the case of Colston vs. Nichols, decided by the Court of Appeals, under its former organization, 1 Harr. and Johns. 105, in which the decision of the General Court, that evidence of unsworn declarations of a witness were inadmissible to impeach his competency, was overruled—but this court cannot accede to the doctrine, that the adduction of such evidence, although it might be calculated to affect the credit of the witness, went to his competency.

The first exception having been waived by the appellant’s counsel, it does not become necessary for us to express any opinion upon it.

JUDGMENT AFFIRMED.