Stewart v. Kip

5 Johns. 256

Opinion

Spencer, J.

delivered the opinion of the court. The question submitted in this case, is whether, in an action against the sheriff, for the escape of a prisoner in execution, who had given a bond for the liberties, the deputy-sheriff and gaoler who had taken the bond, is a competent witness.

In considering this case, we must intend that the witness was a material one. The object for which he was introduced, is not stated in the case, nor was the defendant required to state it; the witness was offered, objected to, and declared incompetent. The plaintiff’s counsel has submitted several authorities,* which are supposed to warrant the rejection of the witness, but none of them apply to this casei. The general rule has been repeated-" ly recognised by this court, that an interest in the question, is not an objection to the competency of a witness, but goes to his credit; and the test to decide whether he may testify is, whether the verdict can be given in evidence, in a suit to be brought against the witness. There are exceptions to this rule, and witnesses who have been Servants or agents, and who are alone supposed to be privy to the transactions which give rise to suits, are admitted, ex necessitate, without a release. Another exception is, xvhere the interest of the witness is remote or contingent, he is admissible, and the objection goes to his credit ; as in the case of Falls and Smith v. Belknap, (1 Johns. Rep. 491.) where axvitness, liable to be rated for the support of the poor, was admitted, though he had a remote and contingent interest in the event.

In the present case, Pease, the xvitness, though the defendant’s gaoler, had no control over the prisoner, and was not ansxverable for his escape to the principal. His interest xvas barely possible, in consequence of his having taken the bond for the liberties ; it depended on the solvency of the obligors, and on the fact xvhether he had acted fairly and honestly in taking it. The point at the trial xvas the escape, and this, as I have observed, could not be imputed to the gaoler; the trial therefore involved no one act óf the xvitness, and there was no question put to him to discover, nor xvas there any fact to show that he possibly could be answerable to the defendant in any event. The case of Carter and Pierce, (1 Term Rep. 163.) decides that a witness is admissible, though there be a bare possibility of an action being brought against him.

The cases relied on to justify his exclusion, arc. to be found in 4 Term Rep. 589. 2 Esp. Rep. 735. 1 Caines, 363. and 2 Stra. 1083. In these cases, the witnesses offered and rejected, were called to disprove acts of negligence committed by themselves, and for which, in case of verdicts against their principals, they would be immediately answerable over, and the verdicts would have been evidence to fix the amount of damages; or they were called to create a fund upon which, when created, they had an immediate lien. In these cases, the witness was certainly interested in the very gist of the action, and would either gain indemnity, or advantage by the evidence he gave; and as respects the influence upon the mind of the witness, it was equivalent to a direct interest in the event of the suit.

The witness in the present casg, not being called to justify any act of his own, or to disprove any negligence imputable to him, having no concern with the gist of the action between the parties, and his liability over being' very doubtful, depending on various facts, not involved in the trial of this cause, his interest was too remote and contingent to exclude him from testifying; consequently, there must be a new trial, with costs to abide the event,.

New trial granted,.

Footnotes

*

4 Term Rep. 589. 1 Caines, 363. 2 Esp. Rep. 735 1Str. 65 2 Str. 1083. 1 Peake’s N. P. 53.