Ott v. Houghton ( 1858 )

The opinion of the court was delivered by

Thompson, J.

— It is always competent for a party, against whom a witness is called, and gives evidence, to propound such questions, on cross-examination, as may tend to show his favour or bias towards the party calling him, if he has reason to believe that any such exists. Interest in the question may, and most generally does, create a bias more or less powerful in the minds' of most witnesses— but this only goes to the credibility and not the competency of the witness; and on this subject it was said, in Cameron v. Montgomery, 13 S. & R. 128, that the party against whom a witness is produced, may show everything which may, in the slightest degree, affect his credit; and the judgment in that case was reversed because the court below refused to allow the witness to be asked “ ivhether the plaintiff did not buy his real property at his instance?" “It was a circumstance,” said C. J. Tilghman, “ which might show that the witness was under obligation to him, and this might have some effect on his evidence.” The rule is recognised in Bennett v. Hethington, 16 S. & R. 193, in which it is said that the “ witness may be subject 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.” It would be a sad category in which to be placed, if, the interest not being of the character to exclude the witness, his relation to the party or the question may not be given, to be weighed by the jury, in estimating his credit. The rule is not so: 1 Phill. on Ev., by Cowen & Hill, 120-21-22. The party was entitled to give such evidence, and it was error to reject it.

The second, third, fourth, and fifth assignments of error come within the principles here stated. The questions proposed, as given in these exceptions, were proper to be put to the witnesses, and it is not easy to see why they should have been objected to, or why overruled. If the defendants could show an interest in the question, and a bias on that account, on part of the witnesses, they had a right to do so, and the questions put, if answered affirmatively, might certainly have had a tendency in that direction on the minds of the jury. These assignments of error are therefore sustained; the first and sixth are not.

The 7th error is defectively assigned. In making the assignment, the entire charge is set out. In Hutchinson v. Campbell, 1 Casey 273, it is said the rule requires the “ exact language complained of, to be set out.” But as this case goes down for re-trial, we may as well say, that we perceive no error in the charge, on the subject of the recital and condition in the note. The language used admitted of no other construction, than that the patent had been conveyed, and the condition only required proof on part of the plaintiff that it would work as warranted, and so the court instructed the jury.

Judgment reversed and venire de novo awarded.