Marquand v. Webb

Spencer, J. delivered the opinion of the Court. Ad'mitting that the defendant was part owner of the privateer, there can be no doubt that he is liable to the plaintiffs for the repairs. The case of Leonard v. Huntington, (15 Johns. Rep. 298, 302.) instead of impugning the proposition, goes to support it; for it was expressly admitted, that a master contracting for the use of the vessel, is liable, because the credit is given to him in respect to his contract, audit is also given to the owners, because the contract is on their account; but we did not consider that Huntington ' stood in the character of an owner, when the repairs were done in that case. The whole case turns on the competency of the witness, Benjamin Gomez; and although the fact proved by him, was proved by two other witnesses, we cannot say, the case coming before us on a writ of error, that his evidence may be rejected as unnecessary. It would have been allowed to the plaintiff below, to waive this testimony; and then the Recorder would have been justified in refusing to seal the bill of exceptions. This was not done; and We must now decide, whether Gomez was an admissible witness, it appear [93] ing that he was part owner of the privateer, and as such, liable to contribution, in case the plaintiff recovered. This point is not free from difficulty; but, after examining all the cases cited, and several others, we are of the opinion, that Gomez was not an admissible witness; on the ground, that he was called to prove a fact, which he had a direct interest to establish against the defendant. The inquiry was, whether the defendant was part owner of the vessel; and, as such, chargeable, in the first instance, with the plaintiffs’ whole demand for repairs, as he had omitted to plead, in abatement, that there were other joint owners, who ought to have been made có-defendants. The witness confessed, on his voir dire, that he was a part owner of the Spitfire ; he was then sworn in chief, to prove that the defendant was also a part owner of the same vessel. He was, undoubtedly, interested to render the burthen upon himself as light as possible, and to throw it on the defendant, in part. It is true, the. witness was liable to contribution, but the "defendant could never controvert, afterwards, with the witness, in case he sued him for contribution, that he was not a part owner of the vessel. He could not take the ground, that a verdict had been recovered against him, by the present plaintiffs, wrongfully. The very basis of a suit to be brought by him for contribution, must be, that he was a part owner. Upon any other principle, he would be remediless. The recovery in this case would be evidence of the amount he was compelled to pay. The witness being, "confessedly, by his own admissions on the voir dire, a part owner, would be answerable in contribution, and his interest in making the defendant below an owner, was promoted, by increasing the number of those chargeable, and thereby mitigating his own loss. I have met with no case directly in point. My opinion proceeds on the principle, that whenever a fact is to be proved by a witness, and such fact be favourable to the party who calls him, and the witness will derive a certain advantage from establishing the fact, in the way proposed, lie cannot be heard, whether the benefit be great or small, Thus, in Bland v. Ansley, (5 Bos. & Pull. 331.) where trespass was brought for taking the plaintiff’s goods in exe [94] eution, and the question was, whether one Jlubray, against whose g00ds the execution was, had assigned them to the plaintiff or not; Jlubray was called to prove that he had not assigned them, and was rejected; and though it was contended, that the witness was indifferent in point of interest, the Court held, that he was properly rejected, on the ground, that he was called to give evidence, the effect of which would be to pay his own debt with the plaintiff’s goods. In the case of Hudson and another v. Robinson, (4 M. & Selw. 475.) an action of assumpsit was brought against one of several partners for not delivering goods; the defendant pleaded, that the promises were made jointly with two others. The allegation, on the part of the plaintiffs, was,, that although the defendant was a partner with A. and B., he made the contract individually, though in the name of the partnership ; and that, in fraud of the partnership, he received the money to his own use ; it was held, that A., one of the partners, was a competent witness for the plaintiffs to prove that the defendant was not authorized by the partners to make the contract, and that he had received the money to his own use, on the ground, that the defendant was not precluded from suing the other partners for contribution ; the Court holding, that the record of recovery, in that case, would not be evidence, in such suit for contribution, any further than to show that the defendant had paid a certain sum, and that, therefore, the witness stood indifferent. Bayley, J. in giving his opinion, stated the true principle. He said, a witness may be interested in different ways ; if, for instance, the result of the suit will be, to protect him from having a demand made against him, or to put him in a worse (his meaning, obviously, was better) situation than before, he is an incompetent witness ; but if he stands in this situation as to the event, that whether the suit terminates in one way or the other, he will be equally liable, stat indijferenier, there is no reason why he should not be a competent witness. The same principle was adopted by the Court in Ridley v. Taylor, (13 East, 175.) The principle is not intended to be impeached, that if a witness has an interest inclining him to each of the parties, ¿o as, upon the whole, to make him indifferent, he will be [95] competent to give evidence for either party. It is conceived, that Gomez did not stand indifferent between the parties; for though; from his own disclosure, he would be liable to the plaintiffs below, if they failed in this suit, as a part owner, he was increasing the number of those who would be contributory, and thus lessening the amount which he was eventually to pay. In coming to this conclusion, I have not been influenced by the case of Emerton v. Andrews, (4 Mass. Rep. 653.) for, with great deference to the Court who pronounced that decision, I cannot subscribe to the opinion there expressed. The action there was assumpsit, for the board of workmen, whilst in the service of the defendant; Beals, one of them, testified, that having engaged to work for the defendants, he was to pay his own board; he requested the plaintiff to board him, and take his pay in goods at the defendant’s store; to which both the plaintiff and defendant agreed ; that he boarded with the plaintiff, and was likewise considered by the plaintiff as answerable for the board; bis testimony was set aside, on the ground .of his interest. The Court, in giving their opinion, observe, that if the plaintiff prevailed, Beals would be discharged from any demand by the plaintiff, and that in an action to be brought against him, the judgment and satisfaction of it would defeat the action. This is not the test, as I understand the law; it was immaterial to Beals, whether the plaintiff failed or succeeded in his suit. He was, at all events, answerable for the board to one or the other; if the plaintiff recovered, it gave the defendant a right as against Beals, either to stop the amount out of his wages, or if he had paid him, to recover back the amount. The cases of Evans v. Williams, and Ilderton v. Atkinson, (7 Term Rep. 480, 481, in the notes,) Shuttleworth v. Stephens, (1 Campb. 407.) and Milward v. Hallet, (2 Caines, 77.) and several others, go to support the distinction, that if the witness has an interest inclining him to each of the parties, so as, upon the whole, to make him indifferent, he will be a competent witness for either party. The case most nearly resembling the present is, that of Rotheroe and others v. Elton, (Peakens N. P. Cases, 84.) [96] which was cissumpsit on a policy on goods; the question was, whether the ship was sea-worthy. To prove that she was so, the owner of the ship was called as a witness, and was rejected; Lord Kenyon held, that where a witness was directly interested in the event of the suit, as well as where he verdict in the cause would be evidence for or against him in another suit, he was incompetent, In 2 Dessasure^s, S. C. Rep. 4, 5. it was ruled, that one partner was not a competent witness to prove that the defendant was also a partner, because he was interested to fix the liability of the defendant. The judgment must be reversed, with directions that avenire de novo issue in the Court below. Judgment reversed.