Johnson v. Whidden

| Me. | Jul 1, 1850

Howard, J.

The defence in this case is made by subsequent attaching creditors, under provisions of the Revised Statutes, chap. 115, sect. 113 — 119. The plaintiffs caused certain personal and real estate to be attached as the property of the debtor. Reed replevied the personal property from the attaching officer, Nutt, and gave a replevin bond in the usual form, with Rendol Whidden as surety. The latter was called as a witness for the defence, but objection was made to his testifying on account of his interest, arising from being a party to the replevin bond.

If the plaintiff in replevin should succeed in his suit, the witness could not be made liable on the bond; and if he should fail, he might return the property, or pay the damages as provided -in the bond; but if he did neither, the bond might be enforced against the witness. It is quite apparent, that the liability of the witness in this view of the case, could be but indirect, uncertain, and contingent, and that he could have no certain, legal or immediate interest in the event of this suit. But neither the failure, nor the success of the plaintiff in this suit, will affect the liability of the witness upon the replevin bond. The officer may contest the right of the plaintiff in replevin to the goods attached, in either event, regardless of the result of this action, and have judgment for a return, in order to restore them to the rightful owner. The witness cannot, therefore, relieve himself from his obligation by his testimony, and this objection cannot prevail. 1 Stark. Ev. 103-4; 1 Greenl Ev. § 386.

The release from the defendant discharged the witness from all liability which could result from his agreement, or obligation to pay this debt.

It appears that, the witness was grantee of the debtor, or of his grantee, the Freeman’s Bank, of certain real estate embraced in the plaintiff’s attachment; and it is contended, that the attachment created an incumbrance which the witness is interested to remove, by defeating this suit. If the attachment was made before the witness had an interest in the real estate; he might be interested to defeat it, but if made since, he would have no such bias or interest. The testimony does not show whether the attachment was before or since the conveyance from the debtor, under which the witness claims, and therefore does not establish any interest in the witness, by reason of his claim to the real estate.

Two witnesses may be equally honest and of “equal credibility,” and yet, their testimony may not be equally credible or satisfactory. The circumstances under which they testify, and their means of knowledge of particular facts, may be different, and their habits of observation, and memories, and intellectual capacities, may be widely different; all of which may affect the credibility and influence of their testimony. The instructions to the jury that they were to judge which of. the witnesses testified to the truth ; that they should take all the circumstances into consideration affecting both witnesses, and thek means of knowledge, and give credit to the statements of the one or the other, as they might find them entitled to their belief, were therefore correct.

Judgment on the verdict.