Montague v. Mitchell

Catoit, C. J. We think the court erred in holding Young incompetent on account of interest in the event of the suit. Technically, we think, his interests were equally balanced, whatever his feelings or wishes may have been. If the injunction was made perpetual, then he had to pay the whole of the judgment. If it was dissolved, and Montague had to pay the judgment, then he was responsible over, and must pay the amount to him. And we do not see how this is changed in a legal point of view, because Young may have given security to Montague to indemnify him for whatever he might pay on the note for which the judgment was rendered. The question presented in determining the interest of a witness, is one of liability, and not of responsibility. In considering that, we must assume that the witness will be able to pay what he owes; or at least his liability is the same, whether he be able to pay or not. And it is the question of liability which must determine the competency. But it was insisted, that he was interested to the extent of the costs in this cause, at any rate. We do not see how this is so. We cannot appreciate how, in any event, Young could be liable for the costs in this cause. He is not a party to it, and has never agreed to pay the costs, so far as we know, nor has he ever agreed that they may be paid out of the property placed in the hands of the trustee, to secure Montague on the note. We think Young was a competent witness, and this settles the matter, for his testimony shows abundantly that Montague was surety on the note, and so known and accepted by the defendants. That they twice extended the time of payment for a consideration of three per cent, per month, in cash, paid by the principal, and that the appearance of Montague was entered and judgment confessed by an attorney, under the power of attorney attached to the note, without any notice to Montague, or any opportunity to him to make the defense at law. If the judgment debtors suppose the security given to Montague is worth anything, which, from- the proofs in this cause, is very doubtful, it may be that, by a proper application to a court of equity, they might be subrogated to the rights of Montague, as to that security. We think the complainant was entitled to a perpetual injunction to protect him. The decree is reversed, and a decree here enjoining the collection of the judgment from the complainant. Decree reversed.