Favor v. Marlett

The Opinion of the Court was delivered by Caton, J. In this case I have no doubt but I improperly admitted Grant, as a witness, to testify as to the value of the property, for the taking of which this suit was brought. It was a contest between the creditors of Grant, Marlett claiming to recover the value of the property by virtue of an assignment of it from Grant for the payment, first, of certain preferred creditors, then for the payment of creditors generally, and the residue, if any, to be paid to Grant. The defendants below proved that Grant was indebted to them for rent, for which they had distrained and sold the property in question. As the benefit of whatever judgment Marlett should recover in this suit must be applied by him to the payment of Grant’s debt, nothing can be more clear that he was directly interested to enhance, as much as possible, the amount of that recovery. The property had already been sold by the defendants below, and the amount ascertained beyond which the property could not extend in the payment of that debt. It was to his advantage that Marlett should recover of them, and apply towards the payment of his other debts, a greater amount than they obtained for it. Had the title to the property been alone in question, he might then have stood indifferent between the parties, it being immaterial to him, in point of law, to pay which of his debts, the proceeds of this property Avas applied. He then would have stood as good a chance to have got the full value of the property in the hands of one, as of the other. In this case, the amount for which he was to receive the benefit in the payment of his debts, was ascertained on one side by the sale of the property, and although it may have been sacrificed at one half its value, yet he had no redress, if it was properly distrained. Should Marlett succeed in showing that it was not liable to the distress, then he was sure of having the full value appropriated to his benefit in discharging his obligations. His interest was palpable and direct in favor of the plaintiff. The Court was undoutedly misled at the Circuit by the case of Alexander v. Mahon, 11 Johns. 185, which seems to be directly in point the other way. There, the sheriff had levied a fi. fa. on certain property, and, before it was removed by him, the landlord of the defendant in the execution distrained the same property for rent, and sold it, and the sheriff brought trover against the landlord. At the trial, the plaintiff offered the debtor as a witness, but he was rejected by the Court. The Supreme Court said, that his interest was equally balanced, and that he was a competent witness. But we cannot consider this case of controlling authority. The case was decided without argument, and, it may be that it was not considered with that deliberation, which usually characterizes the decisions of that Court. Nor did that question more than incidentally arise in the case, for the plaintiff, against whom the decision was made in the Court below, got judgment, which was affirmed by the Supreme Court. I have before stated my reasons why we cannot concur with the Supreme Court of New York, that the interests of the witness were equally balanced. Had the action been replevin, the case would have been very different. No question is made as to what the law is, when the fact is ascertained as to interest of the witness. If the witness is directly interested in having a particular verdict rendered in the cause, and the testimony of the witness may induce the jury to render such a verdict, he must be held to be incompetent. Such, we cannot doubt, was the condition of this witness, and that the Court erred in admitting him to testify. The judgment must be reversed with costs, and the cause remanded. Judgment reversed.