5 Johns. 256 | N.Y. Sup. Ct. | 1810
delivered the opinion of the court. The question submitted in this case, is whether, in an action against the sheriff, for the escape of a prisoner in execution, who had given a bond for the liberties, the deputy-sheriff and gaoler who had taken the bond, is a competent witness.
In considering this case, we must intend that the witness was a material one. The object for which he was introduced, is not stated in the case, nor was the defendant required to state it; the witness was offered, objected to, and declared incompetent. The plaintiff’s counsel
In the present case, Pease, the xvitness, though the defendant’s gaoler, had no control over the prisoner, and was not ansxverable for his escape to the principal. His interest xvas barely possible, in consequence of his having taken the bond for the liberties ; it depended on the solvency of the obligors, and on the fact xvhether he had acted fairly and honestly in taking it. The point at the trial xvas the escape, and this, as I have observed, could not be imputed to the gaoler; the trial therefore involved no one act óf the xvitness, and there was no question put to him to discover, nor xvas there any fact to show that he possibly could be answerable to the defendant in any event. The case of Carter and Pierce, (1 Term Rep. 163.) decides that a witness is admissible, though there be a bare possibility of an action being brought against him.
The cases relied on to justify his exclusion, arc. to be found in 4 Term Rep. 589. 2 Esp. Rep. 735. 1 Caines, 363. and 2 Stra. 1083. In these cases, the witnesses
The witness in the present casg, not being called to justify any act of his own, or to disprove any negligence imputable to him, having no concern with the gist of the action between the parties, and his liability over being' very doubtful, depending on various facts, not involved in the trial of this cause, his interest was too remote and contingent to exclude him from testifying; consequently, there must be a new trial, with costs to abide the event,.
New trial granted,.
4 Term Rep. 589. 1 Caines, 363. 2 Esp. Rep. 735 1Str. 65 2 Str. 1083. 1 Peake’s N. P. 53.