M'Leod v. Johnston

4 Johns. 126

• Court: New York Supreme Court
• Decided: February 15, 1809
• Status: Published

Opinion

Yates, J.

delivered the opinion of the court. It is a general rule, that the testimony of a witness who might be a gainer or loser by the event of a cause, must be rejected. This interest, however, to produce a disqualification, (Peake’s Evidence, 93. and 1 Term Rep. 163.) must be vested, or certain, and not remote, possible, or contingent. I think Donaldson?s evidence is of the latter description. His interest is completely neutralized. Whatever amount is recovered in this suit, and credited to his account by the present plaintiff, he is liable for to Main, to whom the money received on the attachment belongs, and who of course is liable for his proportion of the debt only, so that no bias can be presumed to exist on the mind of this witness, thus standing perfectly indifferent between the parties.

I must confess that I have doubts as to the competency of Main. It is true, as was contended, if the plaintiff recovers, he must be credited to that amount by the company ; and if he fails, the defendant still continues responsible to him. In this respect his interest may be balanced; but his testimony went also towards a liquidation of his own demand as to the amount recovered on the attachment against M'Cullock, by Johnston and Burk, and to create a fund in the hands of the defendant. On this ground his competency, I think, may be questioned. The amount, however, recovered on this attachment is sufficiently ascertained by the account admitted to have been delivered by the defendant to Main, before the commencement of this suit, and by which the sum in the hands of Johnston and Burk is expressly stated, and from which we have reason to infer that the proceedings on the attachment had terminated, (as nothing to the contrary appears,) and more especially, as there is a specific charge in the account, so rendered to Main by the defendant, for commissions, to which he could only be entitled on the actual receipt of the money ; so that without the testimony of Main, sufficient appears to enable the plaintiff to recover in this cause. As to the commissions of 5per cent. it was his duty to have exhibited this charge properly to the jury ; not having done this, he cannot complain. The court are, therefore, of opinion, that the plaintiff is entitled to judgment.

Judgment for the plaintiff.