Beach v. Swift

2 Conn. 269 | Conn. | 1817

Swift, Ch. J.

The writing executed by Titus Hall Beach to Benjamin Beach, to which the defendant objected, conduced to prove, that the notes in question were the property of Titus Hall Beach ; and as this was the point in dispute, it was admissible evidence: for though not executed by any party to the record, yet it was executed by the absconding debtor, who, in a suit against the garnishee, stands on the footing of a party, in respect to the estate sought to be recovered.

It was insisted by the defendant, that Ellen Beach, the wife of the absconding debtor, was a competent witness. But her husband had a direct interest to defeat a recovery in the action ; for if this could have been done, then the judgment recovered by the plaintiff in the original action against him would have been rendered void ; for as it was obtained by process of foreign attachment, it could be valid only to pursue a remedy against the garnishee. If that had been defeated, then the plaintiff must have resorted to his original cause of action, and could not have recovered for the costs which had arisen on the foreign attachment. The husband, then, if the testimony of the wife had been admitted, would have avoided a judgment in force against him, and would always have been protected against a demand for that part of the judgment which was for costs in the foreign attachment, against any action whatever.

Further, if the issue had been decided in favour of the defendant, then Titus Hall Beach would have been protected against any claim from the defendant, or Patterson, on account of the sale, or of the, assignment of the notes to him. Of course, he had a direct interest in the event of the suit; and the court did right in rejecting the testimony of his wife.

Trumbuii., EdmoNji, Smith, Bhainard, Baldwin, Uoddahii and Hosmek, Js. were of the same opinion. Gored, J.

The only material question is, whether lite testimony of the wife of Tilus Hall Beach ought to have been received, to prove, that the beneficial interest in the notes, executed by the defendant, to Patterson, was not in her husband. And this depends, solely, upon the question, whether he is interested in the event of the suit.

If the testimony offered, were to be admitted, and by sat isfying the jury, that the interest is in Patterson, should defeat the suit; the consequence would be — supposing the interest to be actually in Titus Hall Beach — that he would avoid, not only the costs in this action, but those of the original suit against himself, (which are now converted into deit, by the original judgment;) and remain liable only to the debt, for which the plaintiff sued, in the first action. For, as the judgment, in both actions, is in revi, reaching only the effects of Titus Hall Beach, in the defendant’s hands ; neither the latter, nor even the former costs, can, in any way, be recovered against Titus Hall Beach, unless this action prevails. But if the interest in the notes is found to be in Titus Hall Beach, and a recovery consequently had, in the present action ; the amount recovered will comprise, not only the original debt, due to the plaintiff, but the costs included in the original judgment, (which, in this action, constitute part of the debt,) and also the costs of the present suit. The question, then, is, whether Titus Hall Beach, has not, in this view of the case, a preponderating interest, in defeating this action. Independently of all authority, I think, 1 should not hesitate, a moment, in saying, that he 1ms. In general, a liability for costs only, is an interest in the event, which excludes the person liable, from testifying for the party, for whose costs he is responsible. Hence, a bondsman for prosecution, under our statute-law, cannot testify for the plaintiff, nor the bondsman upon an appeal for the appellant; and at common law, the guardian, or prochein amy, on record, of an infant plaintiff, is not a competent witness for the infant. 2 Stra. 1026. Gilb. Ev. 107. Phill. Ev. 46.

But the defendant’s counsel have pressed the cases of Evans v. Williams, 7 Term Rep. 481. n. Ilderton v. Atkinson, Id. 480. and Birt v. Kershaw, 2 East, 458. in which it has been determined, that a person answerable, at all events, for the sum in dispute, is, in law, indifferent in point of interest, though he is interested, quoad the costs, on one side only. Pedicular examination of these cases is unnecessary. It is sufficient to say,, that the present case is distinguishable from all of them, in point of precedent, at least: as the costs of the original action against Titus Hall Beach, being, by the first judgment converted into debt, for the purpose of the present suit; the sum in dispute, to which he will be subjected, if the present action prevails, is greater than that, which the plaintiff can possibly claim against him, if this suit is defeated. Tilas Mall Beach is, of course, interested to defeat the present suit, independently of any interest in the costs of it. We- may, therefore, without disturbing either of the cases just cited, consider him as interested in the event, in favour of the defendant. And, as these cases have, in my judgment, gone to the utmost verge of the rule of competency ", I would not willingly extend them, beyond the precise point, which they decide.

New trial not to be granted.