McNeill v. Rousseau

20 Ga. 593

• Court: Supreme Court of Georgia
• Decided: August 15, 1856
• Docket: No. 110
• Status: Published

Opinion

By the Court.

Penning, J.

delivering the opinion.

We agree with the Court below in thinking that the second; cross-interrogatory was not fully answered by the witness, Bird.

[1.] The date of the note was a matter of some importance on the question of the identity of the note. The answer of .the witness is silent as to the date of the note.

But wo cannot agree with the Court, that the witness, Bird, ,was interested on the side of the party calling him, McNeill.

[2.] Bird was not in privity with either party to the suit. The verdict, therefore, let it have been on which side it might, could never have been used for or against Bird. And if this were not so, still, his interest is merely balanced; for if he should say that harness had been received by. him from the maker of the note, in payment of the note, although he would relieve himself from the liability to the maker of the note to pay for the harness, yet, he would subject himself to a liability to the owner of the note, to pay him the amount of the note thus collected in harness; and if ho should say that harness had not been received by him from the maker of the , note in payment of the note, although ho would relievo himself from any liability to the owner of the note to pay him the amount of the note on account of having collected it in. harness, yet, he would leave himself subject to the maker of the note for the price of the harness. (See 1 Phil. Ev. 55, 56.)

We think, therefore, that for the exclusion of this witness;' there ought to bo a-new-trial.