Ferree v. Thompson

The opinion of the court was delivered, May 1866, by Thompson, J. The object of the feigned issue in this case was for the purpose of determining whether the judgment of Thompson, who was made defendant, was bond fide and entitled, according to its date, to priority over the judgments of the plaintiffs upon the fund in court produced by the sale, on execution of the real estate of Patrick Kelly the common debtor; the allegation being that although the oldest in the order of its entry, the bond and warrant of attorney upon which it was ’entered “ were executed by said Kelly under a false representation as to the amount of said bond and warrant.” The issue being thus formed, and exclusively at the instance of the lien-creditors, why was not Kelly the debtor a witness ? Let the verdict result as it might, he could neither gain nor lose by it. If the defendant, therefore, failed to maintain his judgment and obtain the money, the plaintiffs would come in and sweep it away from him, for these judgments greatly exceeded the amount in court. It is one test of competency to testify that the witness is in no way involved in the final results of the verdict: Bennett v. Hetherington, 16 S. & R. 193 ; 1 Greenl. on Evid., § 390. An [355] interest in the question and not in the verdict will not exclude, it goes only to the oredit: 2 Binn. 154. Even in the event of the plaintiffs establishing the priority of their judgments, by proving to the satisfaction of the jury the alleged fraud in the defendants, and even although they might not absorb the entire amount of the money, the determination would not benefit Kelly. The issue and contest were between creditors, and he was no party to it nor privy. The record would not be evidence for or against him, — it would be inter alias partes; he could not use it in a direct contest betwehn him and Thompson, nor could it be used by the latter against him to support the judgment : 1 G-reenl., § 890 ; 4 Binn. 83 ; 1 Harris 112. The very point has beem often ruled in our court, but for the present I think it only necessary to refer to the case of Smith’s Ex’rs. v. Wagenseller, 9 Harris 491. It is to the point. There the allegation was that the judgment had been paid, and the debtor was offered to prove it. He was received, and this court did not hesitate to hold that he was entirely competent for that purpose in-the issue between the creditors. In principle that case is not distinguishable from this. The testimony in both cases was to impeach the validity of the judgment as an existing valid judgment to the extent it appeared to be. It is plain that as the witness here was neither interested in the direct result of the verdict, let his interest or bias as regards the question be what it might, nor in the record, for it could not he evidence for or against him in a contest about the validity of the judgment with Thompson, he was a competent witness, and should have been admitted to testify. The suggestion that, as a result of his position, he might in case of a defeat of the defendant’s judgment by his testimony, if to his interest to do so, pay off the plaintiff and take the fund out of court, is an entire mistake. It was brought in on the execution of Thompson, and could not be taken out until as between him and Thompson the judgment of the latter was in some way satisfied or set aside. But, as between them, there was no such issue as yet formed, much less tried. The last position of the counsel for the defendant in error is also answered. It is to the effect, that as the court in ordering the issue, might have imposed terms on the parties as to testifying, it might here impose terms to exclude the witness Kelly from testifying. This is an inaccuracy. The court could make no order to deprive parties of legal testimony, although it might in some instances order that parties should be examined, who according to the common-law rules of evidence could not be. called,— the proceeding assimilating itself to proceedings in chancery. Thus a court may in such issues enlarge the scope of the testimony, in order to inform its conscience, but not diminish it where it is otherwise legal and competent. The case of Ringwalt v. [356] Ahl, 12 Casey 336, teaches no doctrine which conflicts with this: there was error in rejecting the witness Kelly. The judgment must he reversed. Judgment reversed, and venire de novo awarded.