McCall v. Sinclair

COLLIER, C. J. The competency of one joint maker of a promissory note, who is not sued, to give evidence for another, or for the plaintiff, depends upon the fact, whether he is interested in the event of the suit. In Kornegay v. Salle, 12 Ala. Rep. 534, we said that a joint debtor had been received as a witness for the defendant, where, under the circumstances, he was not interested in the result of the cause: that he was admitted for the plaintiff, unless he was called to prove a joint liability. It was added, that if he is released or discharged of his interest, that he was admissible for either party ; but without such release, a great majority of the cases hold him incompetent. See also, 2 Phil. Ev. C. & H’s Notes, 81 to 54, note 81; Id. 111, 112, note 104; 3 Id. 1520, et post, and 1528. In Whatley & Gragg v. Johnson, 1 Stew. Rep. 498, one joint promissor was held an incompetent witness for the plaintiff, to prove the signing of the note by the other; upon the ground that he was directly interested in fixing the liability of the other, “ because in so doing he would light768 ea a burden likely to fall, and which, in the event of the defendants being exonerated, would fait entirely upon himself.” Harvey v. Sweasy, 4 Hamp. Rep. 449, is directly in point, and states the law in equivalent terms. See Hopkinson v. Steel, 12 Verm. R. 582; Piuney v. Bugbee, 13 Id. 623; Greely v. Dow. 2 Metc. Rep. 176; Moffit v. Gaines, 1 Ired. R. 158; Hayes v. Gorham, 2 Scam. R. 429. In the case at bar, it is perfectly clear, if authority is to be followed, that the deposition of Spear was properly rejected. He is interested in a recovery by the plaintiff, and will not, if his testimony be true, be compelled to contribute to the satisfaction of such a judgment, or to reimburse the defendant, should he pay.it. The facts narrated by him, not only show a joint and several liability, as it respects the plaintiff, but an exclusive liability as between the defendant and the witness ; so that if the plaintiff recovers and obtains satisfaction of the defendant, the witness will be discharged. Here then was a direct interest in favor of the party at whose instance the witness was offered, and’according to a cardinal rule in the law of evidence, the witness was incompetent. It is however insisted for the plaintiff, that the deposition should have been received, upon the ground that the witness, in signing the name of the defendant to the notes, acted as his agent. A mere agent is a good witness for his principal from public convenience and necessity. 2 Phil, Ev. C. & H’s Notes, 254, note 241; Stringfellow v. Mariott, 1 Ala. Rep. 573; Doe v. Himelick, 4 Blackf. R. 494; Wainwright v. Straw, 15 Verm. Rep. 215; Harvey v. Sweasy, 4 Hump. Rep. 449. But where an agent has a direct interest in the event of a suit relating to a contract made by himself, independently of his acts as agent, he is not a competent witness for his principal, in respect to such contract. Steam Navigation Co. v. Dandridge, 8 G. & Johns. R. 248; Hickling v. Fitch, 1 Miles Rep. 208; McBrain v. Fortune, 3 Camp. Rep. 317; 3 Phil. Ev. C. & H’s Notes, 1526 to 1528; Sheldon v. Ackley, 4 Day’s Rep. 458 ; Shiras v. Morris, 8 Cow. Rep. 60; Rail Road. Co. v. Kidd, 7 Dana’s Rep. 245; Earle v. Clark, 3 Shep. Rep. 368; Williams v. Little, 12 N. Hamp. Rep. 29 ; Thompson v. Lothrop, 21 Pick. R. 336; Newbold v. Wilkins, 1 Harring. Rep. 43; Allen v. La [769] cy, Dudley’s Rep. (Geo.) 81; 2 Phil. Ev. C. & H’s Notes, 96, et seq., note 89. These citations very satisfactorily establish, that conceding the witness was the agent of the de-' fendant, he was not thereby rendered competent to testify at the trial, if he was otherwise interested in procuring a verdict for the plaintiff. That he had such interest has already been shown. It follows that the ruling of the county court is conformable to law, and its judgment is consequently affirmed.