21 Wend. 397 | N.Y. Sup. Ct. | 1839
By the Court,
There is no foundation for objecting to the account, as not properly attested. This attestation was of course not evidence upon the trial. The object of the act, in requiring it, was to prevent the introduction of captious and unfounded claims against those who employ building contractors. It intended, therefore, that the plaintiff should sustain it by his own oath, as proof preliminary to the bringing of an action, like the proof of loss which is often required of the assured by policies of insurance. The section in question speaks of an attested account merely, without saying by whom. The attestation furnished was, therefore, a literal compliance with the terms, and I think, for the reason given, it was also in conformity with the intent of the act. I agree that it would have been otherwise, had the act contemplated the attestation being used as evidence of the truth of the account, upon the trial.
The question whether Young was a competent witness for the plaintiff, depends on the legal effect which a recovery in a suit of this kind will have upon the rights of the original debtor. The plaintiff had given credit to him; and at common law, he alone was liable } but the statute allows the creditor on serving an attested notice, to pass him by, and recover of another, if that other be indebted to him, in respect to the building, on which the plain tiff’s labor has been bestowed. So far, Young was most clearly interested to make out a fund in the hands of the defendant below. It was to perform the important function of paying the witness’ own debt. The defendant was called into court as being a debtor in respect to the fund; and a recovery by the plaintiff, with satisfaction, would work an extinguishment of the debt. Admitting the witness to be only prima facie liable for a debt, it has been often held that he is not competent
I-Jhave found no cases, in respect to contracts, which are the other way, except two at nisi prius: one in England and one in Ohio. Rowcroft v. Basset, Peake’s Add. Cas. 199, and Nicholson v. May, 1 Wright, 660. I will not deny that there may be others, for I am prepared for almost any judicial discrepancy upon the principle which governs this class of cases, after what I have read as the solemn adverse conclusions from it, by the courts of Westminster Hall. I do not know that we ought to be surprised at such things
But it was said that Young had an adequate counterbalancing interest on the other side. I admit, that where a witness is suspended between equally opposing forces, he is ■competent; and it must now be admitted, perhaps since Benedict v. Hecox, in the court of errors, 18 Wendell, 490, the case mainly relied On for the defendant in error, that if Young had, in the ’event of this suit failing, a perfect remedy over against Collins, the defendant below, unaffected by a recovery either way, he was a competent witness.- And see the note in that case referring to Gregory v. Dodge, 14 Wendell, 593. This case, and I admit that it stands well supported by authority, though I shall not stop to go into the books, opens another door for reversing hundreds of decisions. Indeed I think special bail might be received under it, as a witness for his principal; certainly any other surety in behalf of his principal. In the case relied on, the action was by Hecox, a surety, against the alleged principals in a promissory note, for whom he had signed the note and paid the money ; and to establish his demand by showing that the defendants were principals, he called another, one Foster, who had also signed the note with him as surety. Foster was held competent, although his testimony went to exonerate himself by fixing the debt on others, because he Clearly had a remedy over against the principals, for whatever he stood liable as surety to pay by way of contribution to Hecox. If the party who called him succeeded, the witness was relieved; if he failed, the witness would be charged, but could come against those persons whom he was seeking to fix, for all that he would lose. This was holden to make him indifferent. If he lost any thing, it must be by the failure of his indemnitors, an event which was re
There is, I think, however, one remarkable feature in this case, which did not exist in Benedict v. Hecox. Here it Was essential for the plaintiff below to show that there was a debt due from the defendant to the witness, Young, upon which the plaintiff’s notice had attached; and, in virtue of the statute, worked an appropriation of the particular debt to the plaintiff. I think the event of the suit was the same in legal effect, to the witness, as if he had himself, in writing, assigned the debt to the plaintiff, and warranted its collection ; or, if you please, the same as if it had passed by assignment under the insolvent act to the witness’ assignees. In such case a privity arises, and it shall not be allowed, that those who have thus acquired the interest, and brought their action and been defeated on the merits, may re-assign an unimpaired claim, to the person from whom they received a transfer of it. An adverse event of a suit brought by a trustee or assignee, binds the cestui que trust, or assignor. There is a privity between them. The format right of the plaintiff below was clear; he made out the assignment to him by evidence entirely independent of Young’s testimony. Then, as standing legally in the place of Young, he proceeded to try the question whether the debt which he claimed had any existence. To show this was essential, Haswell v. Goodchild, 12 Wendell, 373 ; and was admitted to be so up
To allow a claim first to be litigated by the assignee, with the benefit of his assignor’s testimony, and on failure, the debtor to be harrassed by, another suit concerning the same matter, would be unreasonable, not to say oppressive.
Thus, that the record would be evidence against Young, on a recovery adverse to the plaintiff below, seems„to be quite clear. He was interested to avoid that consequence.
The judgment of the court below must, therefore, be reversed ; venire de nova will issue from the court below ; the costs to abide the event.