Stebbins v. Sackett

Hosmer, Ch. J. I shall confine my opinion, in this case, to the interest, which Lockwood, the plaintiffs' witness, had in the event of the suit. The facts on the other point made, in a most material particular, are stated so indefinitely, that I willingly pass by the consideration of it. The interest of the witness, as indorser of the note in question, was legally discharged; and on this ground, the objection to him was unfounded. It was claimed by the defendant, that Lockwood, the witness, had assigned all his property to the plaintiffs, for the benefit of his creditors, a part of which consisted of the note in question. The court rejected an enquiry of Lockwood under the voir dire, because his interest as indorser, had before been proved, in a different manner; and because the testimony sought, related to a written assignment, for the production of which, notice had not been given. The mode of enquiry, in my opinion, was unexceptionable. There are two ways of proving a witness interested in a cause; first, by examining him on a voir dire; and secondly, by showing his interest from other evidence. But both these modes cannot be pursued at the same time; and the election of one conclusively bars any recourse to the other. The Queen v. Muscot, 10 Mod. 193. Mifflin & al. v. Bingham, 1 Dall. 272. 275. Bridge v. Wellington, 1 Mass. Rep. 219. 222. Butler v. Butler, 3 Day, 214. The rule is not, that in the same case, the interest of the witness, on one set of facts, may not he proved, by disinterested testimony, and that afterwards, his interest, on a different set of facts, may not be proved, under the voir dire; but it is, that “ at the same time,” or, more correctly, on the same ground, these distinct modes may not be resorted to. When a party has proof of the witness’s interest, which, for the moment, he thinks proper to suppress, he shall not be permitted to enquire of him, under the voir dire, and thus “ sport with his conscience,” (Butler v. Butler, 3 Day 214. 218.) with a view of contradicting him by other evidence; or, if he has made the enquiry, by other testimony, he is equally precluded from interrogating the witness under the voir dire. But where, as in the present case, the enquiry of interest arises at different times, and on distinct grounds, I can see no possible objection to the establishment of it, by different modes of testimony. As to the subject matter of the enquiry, in order to found an objection to the interest of the witness, from the necessity of the case, there must be one exception from the usual rule. “On [262] the examination of a witness as to his situation, he may be asked any questions concerning instruments he has executed, without producing those instruments; for the party against whom he is called, not knowing the witnesses to be produced against him, cannot always be prepared with the evidence to prove him incompetent.” Peake's Ev. 196. 1 Swift’s Dig. 740. The point need no further be pursued, as on his testimony in chief, Lockwood testified to the facts, which the defendant attempted to prove under the voir dire. Beyond all question, they established his interest in the event of the suit. It is a general rule of evidence, that if the effect of the witness’s testimony will be, to create or increase a fund, in which he may be entitled to participate, he is incompetent. 1 Phill. Ev. 50. 51, Phœnix v. Day, 5 Johns. Rep. 412. 427. Stewart v. Kip, 5 Johns. Rep. 256. 258. Innis v. Miller, 2 Dall. 50. White v. Derby, 1 Mass. Rep. 237. 239. Austin v. Bradley, 2 Day, 466. Temple’s Ex. v. Ellett’s Ex. 2 Munf. 452. If the effect of his testimony will be to prevent the diminution of a fund, created for his benefit, he must, on the same principle, be equally incompetent. It is not necessary that the interest of the witness in the fund, should appear to be inevitable. Perhaps, the increase may not be sufficient to give him a right to any part of it; but as this may be the result, he cannot be allowed to testify. The interest of Lockwood is manifest; and the court should have rejected him. Peters, Brainard and Bristol, Js. were of the same opinion. New trial to be granted.