Hillhouse v. Smith

Mitchell, Ch. J. The question now presented to the ■ ourt, is, whether Sachet was an incompetent witness, by reason of an interest in the event of the suit ? A decision of the court of chancery, granting the injunction prayed for, would, inevitably, fix the liability of Kirk, Rollon and Truman, upon their implied contract with Lucius Smith & Co, arising from the transfer of the notes which were assigned to them : And in consequence of Bolton's being compelled to perform his contract with the purchasers of the notes, Sachet would, unavoidably, be obliged to pay back to him, such portion of the avails of the sale, as he might have received. By a decree in favour of the petitioners, Sachet's liability would be as certainly fixed, as if he had entered into a covenant to save Bolton harmless against such decree, or had become his bail. Of course, Socket was directly interested to subject the petitioners in the suits at law, upon the notes. [438] The fact ¡hat fíollon had previously died insolvent, cannot essentially affect the question; for the court cannot, enter into an enquiry relating to the pecuniary resources of the administrators, in this case, with any more propriety, than they could into those of the intestate himself, if he were still living. The mere liability of the administrators, without a recovery, might raise an equitable claim against Sack'd ; so that he could not, in good conscience, retain the money he liad received from Bolton, in his life time. A claim of this kind, founded on a liability, as surety, may be proved as a valid claim or debt, under a commission of bankruptcy, in England, even before the surety has paid the money. Toussaint v. Martinnant, 2 Term Rep. 100. Nor can this interest of Socket, thus obvious, be said to be balanced, by a similar liability, in case the petitioners should be subjected at law, to the payment of the notes : For if an action of fraud, should, in that event, he brought, the decree in this case, even if between the same parties, would not tend to maintain the issue ; Nor would this record be evidence to establish the issue in any action in which Ballon⅛ representath cs should be a party, as he is not a party in the present suit ; and Sackd can be subjected only in consequence of the liability of Bolton, or his representatives. Much less would the record be evidence in a suit against Sackd. SackeCs liability, therefore, for fraud, in consequence of the petitioners being obliged to pay the notes in question, is not such, Unit he would have been immediately injured, in that event. The determination of the Superior Court was, therefore, correct; and no new trial ought to be granted. All the other Judges concurred in this opinion, except Swift, J., who was of opinion, that the interest of Sackcl was balanced, and that his testimony ought, therefore, to have been received. New trial not to be granted.