Paine v. Hussey

The opinion of the Court was drawn up by Shepeex J. The admission of the excluded testimony is claimed upon two grounds; first, that the witness was not so interested as to exclude him; second, that he was indemnified. [276] He had becpme guarantee for the eventual payment qf the note ; and he explain^ in his contract, what he intended, saying, cf I'hold myself bpund to pay the execution which may be recovered on the, same in the life qf the said execution.” He was offered to provq a failure of a part of the consideration of the note ; and such testimony, if believed, would have reduced the amount recovered, and have lessened the sum, which he had contracted to pay upon the execution. He was 'therefore directly interested in the event of the suit. The argument to avoid this conclusion is, that his contract not having been .assigned was available only to Eaton, who having part? ed with the npte would suffer no injury by a failure of payment, and could therefore maintain no action upon it. The contract being in possession of the plaintiff and produced by him, and the note having. been transferred to him, he was equitably entitled to the benefit of the collateral security ; aqd if he could not at law, he could in equity, have enforced his right to it. Martin v. Mowlin, 2 Burr. 969; Green v. Johnson, 1 Johns. R. 591. The argument fails to shew? that hq was not interested. Sureties upon bail and replevin bonds, and indqrsers upon writs have been admitted to testify upon having deposited with them and at their disposal an amount of money fully sufficient to pay all, for which they could in any event be liable. In the case of Chaffee v. Thomas, 7 Cow. 358, the witness liable for costs was admitted to testify upon declaring on the voire dire, that he was indemnified. The. interest pf a witness should be entirely discharged before he can be competent to testify. A rqleqse operates as a perfect discharge ; and the deposit of money, as before stated, may have the same effect; for there can be no delay, expense, or risk, in procuring the means of satisfying any claim against him. But such cannot ordinarily be the effect of a bond, or other contract of indemnity. Some delay and inconvenience must be expected, for he cannot claim to be reimbursed until after he has parted with his money, or suffered injury. And if he can obtain satisfaction by collecting without a suit, his lahor and trouble will be equal to a commission. If compelled to collect by a suit, he must pay expenses, which will never be fully repaid. Such will usually be the result admitting the indemnity to be perfectly good. But there [277] is always more or less of uncertainty whether the contract of indemnity will prove to be good ; and no prudent man having what he would consider a good bond, would regard himself so favorably situated as if he were not liable at all. In practice great inconvenience would bo experienced in determining, what was or was not an indemnity so perfect as to leave the witness as free from interest as any indemnity could make him. It is much more safe to adhere' to a well established rule, than to introduce an exception to it liable to the just objection, that the interest is not fully balanced or discharged, and subject to much inconvenience in practice. The other point relating to the usury was not insisted upon at the argument. Judgment on the verdict.