Vason v. Merchants' Bank, 2 Ga. 140

Vason v. Merchants' Bank

2 Ga. 140 | Ga. | 1847

By the Court

Lumpkin, J.

delivering the opinion.

William S. Whitfield, being indebted to the Merchants’ Bank of M.acon, formerly the Bank of Hawkinsville, by judgments, procured to be made a note by one William H. Hamner, payable to himself, and by him transferred to the said Bank. Whitfield placed two slaves, Rose and Nancy, under the control of Hamner, either as the consideration of the note, or to protect him from the payment of the debt. Hamner was sued on the note, and pleaded, byway of defence, that John Rawls, the President of the Bank, promised him, Hamner, that the Bank lien on this property should be waived or extinguished, provided he would enter into this arrangement; and that, relying upon said assurance, he was induced to do so. But that the Bank, disregarding said pledge, have transferred some of the executions which they held against Whitfield, *142and that said negroes are liable thereto. And that consequently the consideration of the note has wholly failed, and ought not to be collected.

It was in proof that Hamner gave this note merely for the accommodation of Whitfield, and to enable him to make a settlement with the Bank of his old debts, and that he looked to Whitfield to pay the note when it fell due.

The testimony of Whitfield, taken by commission, was tendered to sustain the defence, and rejected by the Court, on the ground that Whitfield was incompetent to testify in the case by reason of his interest. To this opinion counsel for defendant excepted.

[1.] The only question presented for our consideration is, was this evidence properly rejected? We are of the opinion that it was. Hamner being an accommodation maker only, Whitfield would be liable to him not only for the amount of the note, but for the costs incurred’ in the suit. And this interest, small as it is in amount, is nevertheless a disqualifying circumstance. The magnitude and degree of the interest is not regarded in estimating its effect on the mind, it being impossible to measure the influence any given interest may exert. It is enough that the interest which the witness has in the subject, is direct, certain, and vested. Nor is it necessary that the witness should be interested in that which is the subject of the suit, for, if he is liable for the costs, he is incompetent. 1 Greenleaf Ev. secs. 347, 401, 402; Townsend vs. Downing, 14 East R. 565; Hubly vs. Brown, 16 John. R. 70; Scott vs. McLellan, 2 Greenleaf R. 199; Bottomley vs. Wilson, 3 Starkie R. 148; Harman vs. Lesbrey, 1 Holt Cases, 390; Edmonds vs. Lowe, 8 Barn. & Cress, R. 407.

Take another view of the transaction. Admit the truth of the plea, and that Hamner should lose the negroes on account of the Bank liens; it is manifest, that whether he be an accommodation party or not, and whether the conveyance by Whitfield to him be an absolute bill of sale, or only a mortgage to save him harmless, in any event, upon having the property arrested from him, Whitfield. would be liable over to Hamner to make good the title, and. to indemnify him in the costs which he had expended, as that would be the measure of his damages in an action against Whitfield. In this view of the affair Whitfield was properly excluded, as he was directly interested in protecting himself against such liabilities.

The judgment below must be affirmed.