Manchester Iron Manufacturing Co. v. Sweeting

10 Wend. 162

Opinion

By the Court,

Savage, Ch. J.

There can be no doubt that the engagement entered into by Fitzgerald rendered him incompetent on the ground of interest. Nothing appears in the case to sustain the imputation urged on the part of the defendant of fraud or collusion between the plaintiffs and the witness, to deprive the defendant of his testimony, for the defendant was a party with the witness to the agreement; and it does not appear that the plaintiffs knew that Fitzgerald could be a witness in the suit- then pending. This the defendant offered to shew, and that the agreement was entered into with Fitzgerald with a view to exclude his testimony. This evidence ought to have been received; no man has a right thus to deprive his antagonist of the testimony of a material witness.

The principal question, however, is whether his competency was restored by putting $300 into his hands as an indemnity. The only doubt there can bo on that subject is, whether it was sufficient; the witness thought it so, and discharged the defendant from all liability to him on that account ; after that, he had no interest in the event of the suit. If the plaintiffs recovered, the witness would pay the amount out of the $200, and return the balance; if the defendant succeeded, ho was bound to return the whole. The amount was surely sufficient to pay $51 and the costs. Í think, therefore, the witness was competent. The plaintiffs’ counsel is mistaken in supposing that the witness could retain the money in any event. He received it by way of indemnity.

The only remaining inquiry is whether the defence was properly received under the pleadings. Under the general issue, the defendant may give in evidence any thing which shews that the plaintiffs never had a cause of action, and most matters in discharge which shew that when the suit was commenced no cause of action existed, 1 Chitty’s Pl. 470,1, 2. A release may be proved under this plea. The defence proved in this case, though not a release, is tantamount to an agreement not to sue the surety, and was properly received. The conduct of the plaintiffs in refusing to prosecute the principal on the request of the surety was virtually an agreement to discharge the surety and look to the responsibility of the principal alone.

The evidence was properly received, and fully sustained the verdict of the jury.

New trial denied.