Pingree v. Warre , 6 Me. 457 ( 1830 )

Mellen C. J.

delivered the opinion of the opinion of the Court, in Cumberland, in August following.

The only question in this case is whether Brackett was a competent witness to disprove the fact stated in the receipt, which he had, when town treasurer, given to Warren the collector. There is no question as to the right to explain the language of a receipt by proper evidence. Was Brackett so interested as to be an inadmissible witness for the purpose ? As the receipt stands, if not falsified by proof aliunde, it constitutes a good defence to the action. If the defendant Warren is thus discharged from accountability, an action will immediately lie against Brackett by the town treasurer, and Brackett’s receipt will be good evidence to maintain such action, unless its accuracy and truth can be disproved by him; but if he is permitted to testify in this action, and by his own oath disprove the receipt, in whole or in part, and. thereby enable the plaintiff to recover of Warren and his sureties the amount of the alleged mistake or falsehood in the receipt, he will, in so doing, shield himself from all pretence of liability to the town. An indorser of a note cannot be a witness for the indorsee in an action against the maker; because a judgement in that action has a direct tendency to relieve Í im from his liability as indorser. What but this contingent responsibility renders the indorser of a writ, the bail, or surety in a replev.n bond, incompetent witnesses for those whose sureties they have become? The success of the present action will save Brackett harmless; the failure of it, on account of the absence of his testimony, immediately exposes and subjects him to an action on the part of the town for the contested amount. Can he then be a competent witness ? Is he not directly interested ? See Schillinger v. McCann, ante. p. 364, and cases there cited.

But it is contended that Brackett was a mere agent of the town, and that an agent or factor is by law a good witness. Such is the principle, and it is well known to be an exception from the general rule. But we do not perceive that such a character belongs to Brackett. He certainly is not the agent of the plaintiff; there is no privity between them; nor does there exist in this case that necessity, which can bring the witness within the exception $ on which necessity the exception is founded.

Verdict set aside, and new trial granted.