Jones v. State ex rel. Dietz

5 Blackf. 141, 1839 Ind. LEXIS 53

• Court: Indiana Supreme Court
• Decided: May 27, 1839
• Status: Published

Opinion

Sullivan, J.

This was 'an action of debt on a bond executed by William P. Nelson, and the defendants as his sureties, to the state of Indiana, for the faithful collection and payment of the revenue of Bartholomew county for the year 1836.

A general demurrer was filed to the declaration which was overruled by the Court, and judgment was given for -the plaintiff. This is the first error assigned, but we think the declaration good, and that the Court committed no error in overruling the demurrer.

On the execution of the writ of inquiry David Dietz, the relator and treasurer of Bartholomew county, was offered as a witness for the plaintiff. The defendants objected to his introduction, but the Court permitted him to give testimony.

The plaintiffs in error insist that Dietz was not a competent witness for the plaintiff, because he was interested in increasing the amount of moneys to be received and paid out by him as county treasurer. It is not easy to reconcile all the cases, in which a distinction has been made between objections which go to the competency and such as go to the credit only of a witness. Notwithstanding they often appear to be contradictory, one general principle may be drawn from them, and that is this,— where a witness has a legal, certain, and immediate interest, however minute, in the result of the cause, he is disqualified. If in the present case, the witness offered would be a gainer or loser by the event of the cause, the rule will apply to him. The act of assembly establishing the office of county treasurer provides, “ that the county treasurer shall have for his services one and a half per centum for all moneys received, and one and a half per centum for all moneys paid out for the county.” The compensation of the treasurer depends on the amount received and paid out by him. He is therefore interested in increasing that amount; and where the effect of a witness’ testimony'is to increase a fund in which he takes a beneficial interest, he is incompetent. 1 Carr. & Payne, 253.

It is also insisted that the witness was incompetent, because, being the relator in the case, he was liable for the costs. We think the statute does not apply to a case where suit is brought on the relation of a county officer for the benefit of his county. The judgment in such cases should the costs to be collected from the property of the county, and not from the relator. Sybert et al. v. Ellis, 3 Blackf. 229.

P. Sweetser, for the plaintiffs. S. C. Stevens, for the defendant.

Per Curiam.

The judgment is reversed, and the inquisition set aside, at the costs of the county, &c. Cause remanded, &c.