Paine v. Tilden

— 563 — The opinion of the court was delivered by Redfield, J. A question is made in regard to the competency of David R. Tilden to give testimony in this case on the part of the plaintiffs. Since it has been decided, in this court, that one defendant in an action of tort is entitled to review the case in the county court, when the judgment is final as to other defendants, it could hardly be considered, that the review of the action, as to one, kept it along, as to the others. For if so, the result might be a verdict, on the review, in favor of those very defendants against whom z final verdict had already been rendered. This was so considered in the case of Sheple et al. v. Paige et al., in Washington county, — not reported, so far as this point is concerned; but the case subsequently came into this court upon another point, and is reported, 12 Vt. 519. * But if David R. Tilden could be considered a party to the record, he clearly had no interest in the plaintiffs’ recovering a verdict against Harvey Tilden, more than a joint tort feasor always has; and no more for being a party to the record, than if he were not so, —there being no contribution between tort feasors. And ordinarily a joint tort feasor is a competent witness for either party, if he be not sued, or be sued in a separate action, or have suffered judgment to go against himself. The mere objection, that the witness is a party to the record, when he has no interest in the event of the suit, or is called to testify against his interest, has been too often decided by this court to be of no force, to be again brought in question. * The very point, now in judgment, was expressly decided in Caledonia county, in the case of Pierce et al. v. Lyman et al., and virtually in Sargeant v. Sargeant et al., 18 Vt. 371. The language of Chief Justice Tin-dal, in Worrall v. Jones, 20 E. C. L. 177, expresses the true state of the English law upon the subject. He says, — “ No case has been cited, nor can any he found, in which a “ witness has been refused, upon the objection in the abstract, that “ he was a party to the record; on the contrary many have .been “brought forward, in which parties to the suit, who have suffered “ judgment by default, have been admitted as witnesses, against their “ own interest; and the only inquiry seems to have been, in a ma- “ jority of the cases, whether the party called was interested in the — 564 — “ event of the suit, or not; and the admission, or rejection, of the “ witness has depended upon the result of this inquiry.” After such a declaration from so distinguished a judge in Westminster Hall, it would seem captious, not to say frivolous, to doubt the state of the English law upon this subject. The same rule obtains in Connecticut also; Johnson v. Blackman, 11 Conn. 342; Woodruff v. Westcott, 12 Conn. 134; and, having been once solemnly decided by this court, upon full argument, and repeatedly recognized, it would seem but a vain labor longer to dwell upon this point in the case. I have said nothing in regard to the effect of the release, as the witness noto confessedly stands as a mere joint tort feasor. How much the general obligation to pay the debt to these plaintiffs, aside from the liability in regard to this particular property, might affect the question of interest, it is not important now to inquire, as any possible interest of that kind is released. The second general question in the case has been often decided at the nisi prius trials, and more than once by this court, in accordance with the'decision -in the court below. It is now well settled, that, whenever the character pf a witness for truth is attacked in any way, it js competent for the party calling him to give general evidence in support of the good character of the witness. And we do not think it important, whether the character of the witness is attacked by showing, that he has given contradictory accounts of the matter out of court, and different from that sworn to, or by cross examination, or by general evidence of want of character for truth. This point was directly decided in State v. Rowe, 12 Vt. 93, and in a case in Windsor county many years since, not reported, I think, and in the case of Fuller v. Sanford cited by Collamer, J., in State v. Rowe. The third general ground of objection to the course of the trial regards the title of the plaintiffs. And here, it is obvious, that the facts are peculiar ; but it does not seem to us, that any question of law is involved in them, which is attended with much-embarrassment, — for this reason, that the defendant is expressly found to have taken his title subject to the claim of the plaintiffs, and not expecting to realize any benefit from it, until the plaintiffs’ claim was settled. The testimony upon this part of th.e case was very considerable, and not a little contradictory, — the plaintiffs claiming, that the defendant — 565 — Harvey Tilden and his brothers bought, subject to the security and ultimate payment of their debt, — in other words, that the defendant, and those whom he represented, bought only an equity of redemption in the sheep, or the reversionary interest of David R. Tilden, which should remain after the plaintiffs’ debt was paid, — the defendants, upon the other side, claiming, that the plaintiffs made no legal attachment in the first instance, and that they subsequently abandoned all claim under their attachment, or, at all events, that the defendants were kept in ignorance of all such claim, and bona fide took an assignment of the sheep, to secure them for endorsing for David R. Tilden, and that, having paid a large amount of his debts, beyond any other security which' they had, aside from this property, they are now to be treated its purchasers in good faith, to the full extent of the value of the property in the sheep. The case was put to the jury upon two grounds, under this division of the case. • 1. If the defendant consented to the plaintiffs’ having a bill of sale of these sheep, at the time it was given, it would make his title good, independent of all other considerations. The counsel do not object to this part of the charge. But there is no reasonable probability, that the case turned upon this point alone, inasmuch as it is highly improbable, that the defendant would have consented to the plaintiffs’ having this bill of sale at the time they received it, if it had not -been before understood, that he had some prior claim to this property for the security of his debt. The other ground, upon which the case is put, is, that the defendant, and those whom he represents, took their title to these sheep subject to the plaintiffs’ claim for full security and ultimate payment of their debt. This, again, is not perhaps probable, except upon the ground that the plaintiffs either had, or were supposed to have, some lien upon this property, at the time the defendant took his assignment from David R. Tilden. It was for the purpose of rebutting this improbability, that the plaintiffs seem to have gone into so much testimony in regard to the attachment, and its continuance, and its final exchange for the bill of sale. The court commented upon all this in detail, treating the attachment as creating a valid lien, so long as it was continued. We have not examined this part of the charge with much care, since it is obvious that the attach-ipent was finally abandonded and a bill of sale taken in its place. — 566 — We do not think it important, to the determination of this case, whether the attachment was in fact absolutely valid, if it was so considered by all the parties concerned. We do not perceive any fatal defect in the view taken of the attachment by the court below. It clearly would not render attachments absolutely void, as against subsequent attaching creditors, that some of the parties were omitted ; this would be matter of defence, which the debtor might waive, probably, if he chose. So, too, in regard to the attachment, it seems, at all events, to have been valid enough, after all the other attachments were removed ; and if it were continued in the manner attempted to be shown by the plaintiffs, it clearly was not abandoned. What, then, shall be the effect of a purchase, subject, not only to the attachment, but to the debt of the plaintiffs? that is, in the language of the charge, if Harvey Tilden and his brothers, knowing of the plaintiffs’ claim, “ took their assignment, not expecting to derive any benefit from it, until Paine’s claim was removed,” “ and they all along esteemed the claim of the plaintiff as prior to their claim upon the sheep,” or, in the language of the witness, with reference to whose testimony this part of the charge is given, “ if Harvey Tilden admitted, that he took the assignment of the sheep subject to Paine’s attachment, and expecting all along, from that time, until the sheep were killed, and disposed of, by him, that the plaintiffs must be paid, before he could have any claim to the sheep? ” It seems to us very obvious, that the defendants can be said, under this state of facts, to have, at most, an equity of redemption, or a reversionary interest. And if this be so, and so the jury have found, unless they found the express consent of Harvey Tilden to the bill of sale, it is very clear, that the defendants cannot complain of any change of the securities, by which the plaintiffs’ claim was secured upon this property, provided they were not misled by it, or the debt increased, — which is not the case here, as found by the jury. It is probable, that the plaintiffs’ debt finally proved larger than the defendants expected; which has no doubt induced them to make this defence in the utmost good faith, and with a very full consideration of its justice. But the acknowledged fact in the case, that David R. Tilden negotiated the exchange of the sheep, and, by the consent of his brother Harvey, carried the note, which he took for the difference, to the plaintiffs, in part payment of their claim, which — 567 — they accepted and finally received the pay upon, without any objection, whatever, from Harvey, or the others in his interest, goes far to show, that David was permitted by them to manage this portion of the property with a view to pay the plaintiffs, and that the defendant only expected ivJiat remained, after that was done. It is obvious, that the plaintiffs so understood that matter, or they would not have relinquished their attachment and taken a bill of sale. So that, under the finding of the jury, we do not well see how the defendant can have a new trial. Judgment affirmed.