Yarborough's ex'r v. Scott's ex'r

COLLIER, C. J. The admissibility of one of the defendants in execution to give evidence against the claimant, depends upon the question, whether it was his interest to condemn the property. It has been decided, and may be regarded as settled law, that where the claimant, in a .case like the present, deduces a title to [223] the property through the defendant in execution, the latter is, in general, a competent witness for either party, on the ground that his interest is balanced. If the plaintiff fails in obtaining satisfaction of his execution, the defendant still remains liable to its payment ; and if the property is wrested from the claimant by a judgment of condemnation, he is liable to the latter upon his warranty of title, which is implied in every sale of personal chattels. But in the case before us, it does not appear that the defendant who testified against the claimant, was in any manner responsible to the latter, if unsuccessful, or that a title was attempted to be deduced through him or either of the other defendants in execution ; while on the other hand the condemnation of the' property, and its appropriation would pro tanio, relieve him from the satisfaction of the execution. The witness whs competent to give evidence for the claimant; because, by supporting the claim, the execution would continue operative to the full amount. Thus we see that he had a direct interest in producing a result favorable to the party who offered him, and according to a settled rule, was improperly received. The cases are numerous to show, that a witness may testify against his interest, or where his interest is balanced, but his evidence shall be excluded where he is interested to favor the party calling him. [See them collected in 2 Phil. Ev. note 80 and 81, C. & H’s ed.] It has been repeatedly decided by this and other courts, that where a judgment against an executor or administrator is rendered de bonis propriis, instead of de bonis testatoris or intestatis, it will be regarded as a clerical misprision, amendable on motion. And under the act of 1824, the judgment would be amexrd-ed at the costs of the plaintiff in error, if we were not compelled to reverse it upon the first question examined. Let the judgment be reversed, and the cause remanded.