Burgess v. Lane , 3 Me. 165 ( 1824 )

Weston J.

at the succeeding Jlugust term in Oxford, delivered the opinion of the Court as follows.

The testimony of Grafton Norris, which was received at the trial of this cause, is objected to as incompetent ; upon the ground that he has similar claims against Leadbetter, one of the defendants, and that the latter would be concluded by a verdict rendered against him, upon the question of copartnership in any action, which might be brought by the witness. In support of this position, the case of Whately v. Menhein & al. 2 Esp. 608, as ruled by Lord Kenyon at nisiprius, has been cited ; where a verdict, .upon an issue out of the Court of exchequer, upon a bill filed by one of the defendants against the other, finding a copartnership existing at a certain period between them, was received as admissible and conclusive evidence of that fact, in favor of the plaintiff, against both the defendants.

Formerly an interest in the question, was generally held to render a witness incompetent. But by later decisions, both in England and in this country, the objection goes to his credit only"; not to bis competency. Thus in an action upon a policy of insurance, one underwriter upon the same policy, may be a witness for another. The interest which excludes a witness, must be an interest in the event of the suit; or where the verdict may be given in evidence, for or against him, in another suit.

A verdict or judgment in a former action, upon the same matter directly in question, is evidence for or against the parties to the suit; and for or against privies in blood, privies in estate, or privies in law. IJut a verdict cannot be given in evidence for either party, against one who wras a stranger to the former proceeding. Thus if the verdict had been in favor of Leadbetter, upon the question of copartnership, such verdict could not be used for him, in any action which might be brought by the witness Norris ; because, in this case, the latter had no opportunity to introduce or to examine witnesses, or otherwise to defend himself. It was decided by C. J. Holt, and all the Judges, in a trial at bar, that no verdict can be given in evidence, but such whereof the benefit may he mutual. And Chief JB. Gilbert lays it down, that nobody can take benefit by a verdict, who had not been prejudiced by it, had it gone contrary. Gilb. Ev. 28. Buller's N. P. 333. It may be difficult to reconcile this rule with the case cited from Espinasse ; but the rule itself is manifestly founded in justice and good sense, and is well supported by authority. Nor does the question of copartnership, like cases of custom, and perhaps pedigree, where a special verdict has been found, fall within any exception to the rule, that verdicts and judgments shall be admitted in evidence only between the original parties to the suit, or their privies.

The same objection is made to the competency of John S. Cary; with the further reason, that he had an action pending in the Common Pleas, against Leadbetter ; and that it had been agreed between the parties, that if the plaintiff prevailed in this action, the witness should have judgment in that. The witness had thus acquired a direct interest in this suit, and was therefore inadmisable, unless his case comes within any exception to the general rule of law, which excludes interested witnesses.

In the case of Bent v. Baker 3 D. & E. 27, it was stated as a general principle, supported by the authority of Lord Holt, in the case of Barlow v. Vowell Skin. 586, ££ that where a person makes ££ himself a party in interest, after a plaintiff or defendant has an ££ interest in his testimony, he may not by this deprive the plain- ££ tiff or defendant of the benefit of his testimony.”

In Jackson v. Rumsey 3. Johns Cas. 237, it is laid down by Kent, 'C. J. in delivering the opinion of the Court, that ££ the interest, ££ in order to exclude the witness, must not have arisen after the “ fact to which he is called to testify happened, and by his own ££ act, without the interference or consent of the party by whom ££he is called ; because, in that case, it would be in the power ££ of the witness, and even of the adverse party, to deprive the ££ person wanting his testimony, of the benefit of it.”

Lord Ellenborough, however, in the case of Forrester v. Pigott 1 Maulé 8ft,Sclw. 9, appears disposed to limit the general application of this principle to cases where the witness was originally relied upon, by both parties, to testify to the transaction, and when an agreement had been fraudulently entered into between him and the party objecting to his testimony, for the purpose of excluding it. And he intimated an opinion, that where a witness, not originally relied^ upon by the parties as such, becomes interested, bona fide, after he has acquired a knowledge of the facts to which he is called to testify, he must, by the general rule of law, be rejected as incompetent. It does not appear to us that former decisions, or the spirit of the rule, requires its restriction to cases of fra'ud only; but that in all cases, where the party objecting to the witness is himself a party to the agreement by which his interest is acquired; or has had any agency in causing him to become interested, subsequently to his knowledge of the facts which he is brought to prove, his testimony may be received, notwithstanding such interest. We are therefore of opinion that Cary, who become interested in consequence of his agreement with Leadbetter, the party objecting to his testimony, was a competent witness.

It is urged that Lane and Leadbetter were not copartners. The jury have found that they were jointly concerned in-the business of lumbering; and Cary testified that Leadbetter said, while they were engaged in that business, that he was in company with Lane. Copartnerships may be either general, or special and limited. The connexion of the defendants must have been a copartnership of this latter description; for it is fairly to be inferred that they were to share in profit and loss, in their lumbering concern. The plaintiff’s demand was for services afforded to them in that business; and they were therefore jointly liable to him prior to the giving of the note, which is declared on in one of the counts in this action. It is insisted that in taking this note, which is negotiable, the plaintiff must be presumed to have accepted the security of Lane alone, in payment of his demand against both the defendants. Such might have been the legal presumption, if nothing appeared in the case to repel it; but it is manifest from the declaration of all the parties, at and before the time the note was given, that the plaintiff insisted upon the security of both the defendants; to which they both assented. And the jury have found, under the direction of the Judge, that the note of Lane alone was not received in payment of the plaintiff’s demand. Lead-letter was an original debtor; and it was not incumbent upon the plaintiff, before he could be charged, as his counsel has contended, first to have used due diligence to obtain the debt of Lane.

The witnesses objected to, being in our opinion competent; and the jury having been properly directed, by the Judge who presided at the trial, there must be judgment on the verdict.