Burd v. Ross

Ryland, J., delivered fhe opinion of the court. The competency of the witness, Joseph R. Ross, and the refusal of the court below to give the third instruction, as set forth in the above statement for the defendants, are the main questions for our adjudication in this case. The errors assigned^ by the appellants, have reference principally to these questions. Let us consider them: First, as to the competency of the clerk, Jos. R. Ross. We entertain no doubt of his competency. He, as clerk of the plaintiff, was induced, obviously, by the statements of the defendant, Rucker, to pay the money, under a misapprehension. From necessity, the clerk in this case was the proper person to prove the payment for his principal, when suing to recover the money back. He, in all probability, must have been the only person who knew or could prove the fact. It is well settled, that a cashier and teller of a bank, though they may have given bonds to the bank for the faithful performance and discharge of their duties, may yet be witnesses for the bank, to charge a defendant on a promissory note, or for money lent, or overpaid, or obtained from the office without security, which he should have received. So is a carrier admissible for the plaintiff, to prove that he paid money to the defendant by mistake, in an action to recover it back. Persons thus situated in regard to interest, are admitted as witnesses, on the grounds of public necessity, and convenience, and to prevent a failure of justice. See 1 Greenleaf’s Evi. sections 411, 416; 15 Wend. 316. In this case from Wendell, a teller was offered as a witness for the plaintiff, (U. S. Bank vs. Stearns.) The teller had given bond to the bank as its officer, yet the supreme court of New York admitted him as a witness Ch. Just. Savage uses this language, “if, however, he was interested, I am inclined to think him admissible, upon the same principle of necessity, which admits an agent, or servant, in the common course of his business; a porter, who has delivered goods for his employer; a cartman, who has delivered goods; a common carrier, a factor [258] or broker, even where he is to receive a per centage for his commission.” Such witnesses are admitted from necessity, because, from the nature of the case, it, is exceedingly improble that any person, not interested, should possess any knowledge of the facts. Such necessity must be general in its nature, embracing a large and definite class of cases, and such as arise in the natural and usual course of human affair: 2 Stark. Ev. 753, 767-8, note 2. As to the second point in this case, the refusal to give the instruction numbered (3) in the above statement, we think was very correctly passed upon by the court. That instruction was not calculated to assist the jury in forming a correct understanding of the case. An imposition upon the credulity of the clerk, thereby inducing him to pay money which in justice to his employer, he should not have paid, however artfully or openly practiced, surely can afford no sufficient bar to the plaintiff’s right of recovery in this action. The other judges concurring, the judgment below is affirmed.