Ward v. Chase , 35 Me. 515 ( 1853 )

Appleton, J.

— In the month of March, 1851, James E. Frye sold out half of his stock in trade to Jacob Bemis and entered into co-partnership with him, which continued till Aug. 28, of the same year, when it was dissolved. Bemis then sold out his interest in the goods and profits of the firm to Frye, and received a contract to indemnify and save him harmless from all their outstanding debts. After the dissolution Frye sold the horse in dispute to the plaintiff, which, while remaining in the possession of the vendor, was attached by a deputy of the defendant on writs against the firm of Frye & Bemis, and against Frye alone, the attachment on the firm debt having precedence. The plaintiff thereupon commenced the present suit, which is defended on the ground that the sale to him was fraudulent as against creditors. To prove that it was made in good faith, the plaintiff called Frye, his vendor, whose testimony was received, subject to all legal objections. The defendant, to show the sale fraudulent, offered Bemis as a witness, who was excluded on the ground of interest. To both these rulings exceptions have been duly taken.

The evidence of Frye, though a vendor of the plaintiff, was properly admitted, his interest being regarded as balanced. Nichols v. Patten, 18 Maine, 231.

Bemis had no legal interest in the result of the suit, and should have been permitted to testify. The rule of law is clearly stated by Gibson, G. J., in Bennett v. Hithington, 6 Serg. & Rawle, 195. “ Although the case of the witness be in every point and particular, the case of the party by whom he is called to testify, although he expect a benefit from the event, and in short, although he be subjected to as strong bias as can influence the understanding and actions of man, yet if he be not implicated in the legal consequences of the judgment, he is competent. By legal consequences, are meant those which are fixed, certain and actual, and by which an advantage, not depending on a contingency, is to be gained or lost; such for instance, as being able to give the verdict in evidence on the one hand, or 'being subjected to an incumbrance or duty on the other.” A similar rule is adopted in VanNess v. Terhune, 3 Johns. Cases, 82. The witness had no direct and absolute interest in the record. He could not make use of the judgment in any suit by the creditors of the firm against him, and though the defence should be established, he would not be discharged. The creditors of the firm may not recover judgment, or if they do the execution may not be seasonably placed in the hands of an officer, in either which events he would derive no benefit from the attachments, though the defendant should succeed in his defence. The general interest a creditor may have, that his debtor should prosecute his suit to a successful issue, by which he will be the better able to meet his engagements, will not suffice for the exclusion of his testimony. Noyes v. Sturtevant, 18 Maine, 104. A trespasser is a witness for the plaintiff against a co-trespasser, though if a judgment be recovered against him and paid, he will bo discharged, the payment being considered a matter of uncertainty. So the debtor, in a suit by a creditor against the fraudulent vendee of property under the provisions of R. S. c. 148, 49, is permitted to testify, though the judgment recovered, if paid, will go in reduction of his debt; his interest not being considered certain, because it cannot be foreknown that it will be satisfied. Philbrook v. Handley, 27 Maine, 55. The witness Bemis has no control over the funds derived from the sale of the property attached. He cannot order or direct the plaintiff in his suit against the firm under which the officer justifies, in the application he may make of the funds. He has no such specific lien on them as will render him legally interested, however confident he may be that they will eventually be applied to the discharge of his liabilities.

The debt against the firm, on which the horse in dispute and other property was attached, amounted only to $303. The proceeds of sales, as is admitted, were $476,64. The value of the horse as found by the jury was $78,38. It would seem, therefore, that the funds arising from the sale of the horse will not be needed for the payment of the debt against the firm, in the discharge of which alone, the witness has any interest. If the creditor of the firm should direct such an appropriation of the proceeds as would not require the funds arising from the sale of the horse to be applied to the discharge of the firm debts, then the witness would have derived no benefit from and would have no interest in its attachment.

If the interest of a witness is doubtful or contingent he should be admitted. “ Objections on the score of interest, say the Court, in Shipton v. Thornton, 9 A. & E. 327, are not to be favored, and the safe rule is to adfnit the witness when there is doubt of the fact.” The exclusion of testimony on the ground of interest, can never be justified, except when its existence is ascertained with absolute certainty, and then it must rest rather upon the authoritative force of pre.cedents than upon the logical deductions of enlightened reason.

Exceptions sustained. New trial granted.

Shepley, C. J., and Tenney and Rice, J. J., concurred.