Ten Eyck v. Bill

5 Wend. 55 | N.Y. Sup. Ct. | 1830

By the Court,

Savage, Ch. J.

The rule is, that an interest in the cause to exclude a witness must be direct and certain, not contingent. In Peyton v. Hallelt, 1 Caines, 362,it appeared that the witness had received from the plaintiff, for a debt due from the plaintiff, an order on the plaintiff’s agent to be paid out of the money to be recovered in that suit, though the order was not accepted. He added, that whether the order was accepted or not, he should look to the plaintiff for payment of his debt. The court held the witness was incompetent on the ground of interest. Lewis, Ch. J. thought the witness not interested because the bill or order had not been, accepted, nor had the fund come to the hands of the agent. In this case the fund was in the hands of the sheriff and the plaintiff below had agreed to give an order for it which the witness relied on ; and the witness had no other prospect of immediate payment, as the plaintiff was destitute of property and insolvent.

That case has subsequently been referred to as containing the correct rule in such cases. Stewart v. Kip, 5 Johns. R. 256. In the language of Spencer, justice, in the latter case, the witness in Peyton v. Hallett, was called to create a fund upon which, when created, he would have a lien. Such was the case also in Powell v. Gordon, 2 Esp. 735, where the witness was a creditor of the plaintiff and had a power of attorney to receive the money when collected, out of which he meant to pay himself. The case of Innis v. Miller, 2 Dallas, 50, goes further; the court there say, that a creditor is excluded from giving testimony if he acknowledges an expectation that he shall be bettered by the fate of the cause; they say he is sensible of a positive interest that must give a bias to his mind. The rule laid down by elementary writers is, that the interest to render a witness incompetent, must be a present certain vested interest, and not uncertain or contingent. 3 Starkie's Ev. 745. 1 Phil. Ev. 50. Phillips says, if a person promise a witness that in case of recovery of lands he will grant him a lease of them, this excludes him, for he would have a fixed and certain advantage. If this be a correct definition of a certain benefit, then the witness in the case now under consideration had a certain interest. But the cases in our court seem to have looked at the legal rights. In the case of Peyton v. Hallett, the plaintiff had given a written order to the witness; and in Powell v. Gordon, the witness had a power of attorney. In those cases it might be said, that when the fund was created the witness would have a lien, which can hardly be said where the witness has only the promise of the plaintiff It is true the bias of the witness, if lie confidently expects the money when collected will be applied to the payment of his debt, may be as great in one case as the other, but that goes to his credibility, and not to his competency. It is certain that in this case there was no legal title-to the money in the witness; and as courts of late have been disposed to consider objections of this kind applicable rather to the credit than the competency, I am inclined to think the witness competent

If, however, he was disqualified by interest, the release did not render his testimony good in the cause without re-examination. 14 Johns. R. 378. 2 Nott & M'Cord, 308.

Judgment affirmed.