6 Wend. 497 | N.Y. Sup. Ct. | 1831
By the Court,
To sustain the defence, an inquest, taken upon a commission of lunacy, was offered in evidence and rejected; and secondly, witnesses were offered, who were conceded to be creditors of Deamer, who were also rejected. The questions are, therefore, as to the competency, 1st. of the inquisition, and 2d. of the creditors.
1. It is laid down by writers on the law of evidence, that such an inquisition is admissible evidence, though not conclusive. 1 Phil. Ev. 300, pt. 2, ch. 4, § 2. Starkie says. 1 vol. pt. 2, § 95: “ An inquisition of lunacy may be considered to be in the nature of a proceeding in rem, since it is instituted by the direction of the chancellor, to whom, by special authority from the king, the custody of idiots and lunatics is intrusted, to inquire into the state of the party’s mind. In the case of Sergeason v. Sealy, 2 Atk. 412, an inquisition was received, but witnesses were permitted to contradict it, Lord Hardwicke saying it was not conclusive. It was objected to in that case, but the objection was overruled. The application there was to set aside a purchase, made after the time covered by the inquisition of lunacy. In the case of Farlan v. Silk, Exr. &c. 3 Campb. 126, such an inquisition was received in an action of debt on a bond, Lord Ellenborough saying that it was admissible, but not conclusive ; and that it would be for the jury, after comparing it with the other facts of the case, to determine what weight it was entitled to. In Jones v. White, 1 Strange, 68, a coroner’s inquest was offered upon a trial at bar of an issue out of chancery of devisavit vel non, to prove the lunacy of the testator; it was opposed by two justices against two. The justices who were opposed, put their opposition on the ground that the coroner’s inquest was a criminal proceeding. In the cases of Lathow v. Eamer, 2 H. Black. 437,
I think he erred also in excluding the creditors. The interest to render a witness incompetent must be fixed and certain, not contingent. 5 Wendell, 55, and cases there cited. See also 10 Johns. R. 21. From the bare fact that the witnesses were creditors, it does not necessarily follow that they had such an interest as should exclude them. They may be creditors at large. If the fact had appeared that the creditors, offered as witnesses, had judgments and executions levied on the same property bound by the plaintiff’s judgment and execution, and that there was not property enough to satisfy both, the court could then see a certain interest; but upon the facts stated in the bill of exceptions, we are of opinion that the witnesses were competent, and that the fact of their being creditors and having a possible, and perhaps probable interest in the event, could be urged only against their credibility.
A new trial must be granted, with costs to abide the event*
