Woods v. Skinner

Citations

• 6 Paige Ch. 76
• 1836 N.Y. LEXIS 230
• 1836 N.Y. Misc. LEXIS 58

Syllabus

<p>Where two of three copartners in a mercantile firm sold and assigned all the partnership property and effects to W., their copartner, and D. W., as Ms surety, joined with him in a bond to B. one of the retiring partners, to pay the debts of the firm and indemnify him against any liability on account of such debts; anda bill in chancery was afterwards filed by W., as such assignee, against S., to recover a demand claimed to be due from him to the firm, and also tobar a claim against the firm on the part of S., which he by his answer alledged to be due and claimed to have allowed to him against the copartnership; Held, that D. W. was not a competent witness for the complainant, to establish his claim against S. and to disprove the claim set up by the latter against the firm; as a decision in favor of the complainant establishing or increasing the amount of the company debt against S., or diminishing the amount of the claim sought to be offset by the defendant, would discharge or diminish the liability of the witness on the indemnity bond pro tanto.</p> <p>If the liability of the witness will remain the same whichever way the suit is determined, he is not incompetent; but if a decision in favor of one of the parties would have the effect to discharge the witness from further liability, while a contrary decision would leave him exposed to a suit, he is not a competent witness for the party who is seeking a decision which will discharge the witness from further liability.</p> <p>To render a witness incompetent on the ground of interest, it is not necessary to show that the record of a judgment against the party calling him would be evidence against the witness in a subsequent suit. It is sufficient to exclude him, if a decision of the cause in favor of the party calling him will absolutely discharge the witness from his liability to a future suit and recovery against himself.</p>