Denison v. Hibbard

The opinion of the Court was pronounced by Baylies, J. One of the best writers upon evidence, says, It is now clearly established, that no interest in any disputed question will render a witness incompetent, who is not interested in the particular result, or in the .record. There is, however, a considerable class of cases, where a witness is not, by reason of his connexion with the parties, or the subject matter of litigation, generally incompetent, but where he may be rendered incompetent by the nature of the particular question agitated at the trial. This happens where the event of the cause turns upon the question, which, if decided one way, would render the witness liable over to one of the parties, but where a contrary decision would protect him. “ Thus, in an action on a policy of insurance on goods, the Captain of the vessel has not, in the abstract, any interest either in the immediate result of the cause, or in the record; and if the question were merely to be what was the original destination of the ship, he would be a competent witness for the plaintiff, to show that he acted under his direction. But if the question turned upon a deviation, he would be incompetent to prove that he had not been guilty of a deviation ; for if the plaintiff failed, he would be responsible to him for the consequences of such deviation, and he would then labor under an interest in the event of the suit. “ In this and similar cases, it is to be observed, that the incompetency does not arise from the general relation of the witness to the parties, or from a direct interest in the immediate event of the suit, or in the record ; for he is competent for general purposes. It is the particular question, and the oonsequeint liability of the witness in one e [499] vent, turning upon the question, which generates the objection. “When the event of the cause depends on the question of the witness’s misconduct, the case is the same, as far as regards his competency, as if the sole issue had been joined upon that question. “ And in general, where the plaintiff, in order to recover, must prove the performance of some duty, or contract by a party, whom he has employed, the latter is not, it seems, a competent witness for the plaintiff to prove the performance of that duty, or contract; for upon failure in such proof, he would be responsible to the plaintiff for the consequences of his own misconduct, or breach of contract; or, perhaps more properly, it should be said, that by means of such proof, he would avert the consequences of his misconduct. “ Where, however, the party so employed was the actual agent, who transacted the business of the principal, he is, as has been seen, competent on the score of necessity; but although an agent, who actually executed the business of his principal is, it seems, in all cases competent to prove that he acted according to the directions of his principal, on the ground of necessity, and because the principal can never maintain an action against his agent for acting according to his own directions, whatever may be the result of the cause, yet if the cause depend upon the question, whether the agent has been guilty of some tortious act, or some negligence in the course of executing the orders of the principal, and in respect of which he would be liable over to the principal if he failed in the action, the agent is not competent without a release.” — 3 Starkie’s Evidence, 1723-29-30. When we examine the bill of exceptions in this case, and learn what was the particular question agitated at the trial, we cannot but perceive that Hernán How, the witness, had a deep interest in that question. The question was, did How, as a common carrier, receive the money of Josiah Grant, to transmit to the plaintiff, as Grant testified ? If How so received the money, he was liable to the plaintiff for it; and it was for his interest to testify, that he did not receive the money, and to charge the defendant with the [500] loss of it, so as to exonerate himself from any liability to the plaintiff. Being thus interested, it is obvious that he was not a competent witness without a release. The judgement of the County Court is reversed, and a new trial is granted.