| Conn. | Jun 15, 1820
Lead Opinion
The declarations of Green Bixby, made subsequent to the execution of the note in controversy, in reference to the transaction between him and the defendant, were, in behalf of the plaintiff, admitted in evidence. The question is now made, whether this was admissible testimony. The relation between the parties, must constantly be borne in mind. The plaintiff is endeavouring to avail himself of the right of Green Bixby, and, to use an expressive phrase, stands in his shoes.. It has been determined, that the admissions of the absconding debtor are good evidence in behalf of the garnishee, on the ground, “ that the plaintiff stood in his right,” and equally so, as if the action were in the absconding debtor’s name. Dewit v. Baldwin, 1 Root, 138, The reverse of this is now contended for; that is, that the declarations of the absconding debtor are evidence for the plaintiff, who founds himself on the absconding debtor’s right, and is endeavouring to obtain payment of his debt. It is certain, that Bixby has an interest in the extinguishment of his own debts, and in the appropriation of the property of other persons, in exemption of his own, for this purpose. His admissions, then, were in his own favour, to promote his personal interest; and on no principle were admissible in evidence for the plaintiff.
It has been argued, that the declarations made by Bixbyr were part of the res gesta, and, for this reason, competent testimony. For this suggestion there is no manner of foundation. To have become such, they must have been made at the time of the act done, which they are supposed to characterize ; and have been well calculated to unfold the nature and quality of the facts they were intended to explain, and so to harmonize with them as obviously to constitute one transaction. Hence, they are said to be part of the res gesta. Now, the declarations of Green Bixby, were not made at the time the note was given by the defendant ; and instead of having a tendency to explain the transaction, they are calculated . only to subvert and destroy.
The case of Beach v. Swift, 2 Conn. Rep. 269. has no bearing on the matter in question. It merely decided, that it was competent to prove the absconding debtor to be the assignee of the notes in controversy, and that a writing made by him, at, the time they were received, accepted by the promissee, con-due ed to prove the point. In this case, it is no part of the
As to the deposition of Green Bixby, offered in evidence by the defendant, it should have been admitted. The tendency of this evidence was to aid Tuttle in his defence, and to defeat the plaintiff 5s recovery. This was in direct opposition to the obvious interest of the witness ; and if the defendant was willing to confide in him, the plaintiff could interpose no possible objection. A judgment in behalf of the defendant, would neither directly, nor consequentially, benefit Bixby ; it would neither pay his debt to the plaintiff, nor assist him in maintaining a future demand for the avails of the note. But, had the plaintiff adduced him as a witness, he would have been interested to aid him in obtaining a judgment, which would have discharged his debt out of property in the defendant’s hands. This is decisive. For it would be a palpable contradiction, to assert, that Bixby was repellable, on the ground of an identity of interest with the plaintiff, and, for the same reason, that he was inadmissible, if adduced by the defendant.
The repelling the deposition of Ellen Beach, in the before cited case of Beach v. Swift, is not in the least opposed to the present decision. From the particular circumstances existing in that case, her husband had an interest in the costs of a prior suit, which her testimony would have promoted.
Concurrence Opinion
I concur with the Chief Justice in rejecting the declarations of Green Bixby, but not in admitting his deposition. The latter point is so nearly allied to one decided in Beach v. Swift, 2 Conn. Rep. 269., that it may be said, “ mutato nomine, de te fabula narratur.” As the authority of that case is admitted, I shall not attempt to vindicate it : indeed, an unanimous decision of the nine judges needs not my support. It remains, then, only to shew the similarity of the two cases. Both are against garnishees, who admit themselves indebted to third persons. Both plaintiffs claim these debts to have been transferred, by the absent debtors, fraudulently ; and that the beneficial interest in the debts remains in
New trial to be granted.