Seymour against Harvey and another, 11 Conn. 275

Bissell, J. The only question in the court below, was, whether Harvey, one of the defendants, had a license from the creditor in the execution to depart from the prison liberties. It is contended, on the part of the defendants, that the paper offered and read in evidence, amounts to such license ; and if this claim be well founded, it becomes unnecessary to consider the other questions raised in the case. But we are satisfied, that the writing in question did not give Harvey an unqualified license to depart the prison.

It was not directed to him ; but to the gaoler: and it authorized him to permit Harvey to do-part, "he being answerable for his return." Upon every sound rule of construction, this language imports a condition ; and gave to the gaoler no authority to suffer the departure of the prisoner, without, at the same time, making himself responsible for his return. Wheeler v. Walker, 2 Conn. Rep. 196. Lloyd v. Holley, 8 Conn. Rep. 491. As then the writing contains, in itself, no such licence, we are brought to consider the other questions presented by this record. The first relates to the testimony of John R. Landon, Esq.

This witness, among other things, testified, that in a conversation with James C. Wadsworth, the creditor in the execution, Wadsworth expressed his “ satisfaction and gratification” that Horsey had departed from the prison limits. To this testimony the plaintiff's counsel objected; and insisted, that the witness should state what Wadsworth said.

To this the court assented, and so told the witness; who then said, he did not believe he could repeat one word of the conversation In addressing the jury, the plaintiffs counsel claimed, that this part of Landon s testimony, ought not to be taken into consideration ; and that the court should so instruct them. The motion states, that in summing up, the judge did not notice this testimony. Upon this branch of the case this single enquiry arises: does this omission of the judge to instruct the jury, as claimed, lay any foundation for a new trial? We think not. In the first place, was the testimony inadmissible?

The objection to it, amounts to this : If a witness states that a precise idea was conveyed in a conversation, but is unable to give the language in which it was conveyed, his testimony is not to be received. We know of no such rule, either in theory or practice. The general principle, which has been urged, that a witness is to be examined as to facts. and not as to his inferences or conclusions from facts, is unquestionably correct.-But the principle does not apply. It does not sustain the objection. The witness did not state the inferences which he drew from the conversation.

But he did state, that the party expressed his satisfaction, although the form of the expression was not remembered. Now, as has been remarked, we know no of rule, within which testimony of this character is to be excluded. And we believe, that in practice, such testimony is almost daily admitted. How much it proves, how much it ought to weigh with a jury, is another, and a very different question. That the judge did not remark on the weight of the evidence, is surely no ground for a new trial. Swift v. Stevens, 8 Conn. Rep. 491.

But again ; even if the testimony were not admissible; what is there, of which the plaintiff can reasonably complain ? He objected to the testimony; and the case finds, that his objection was assented to, by the judge. Was not the testimony eventually excluded? And must not the jury have understood, that it was not before them ? Was it necessary for the judge, in his summing up, to reiterate the opinion he had already expressed ? We think not. Another, and perhaps, a question of more difficulty, remains to be discussed, viz. Was James C. Wadsworth properly rejected, as an incompetent witness?

It should here be remembered, that he was the creditor in the execution ; and although not, nominally, a party to the record, was yet the real party in interest. There is, therefore, no legal presumption in favour of his competency. He undertook, during the progress of the trial, to discharge himself of that interest, and thus to qualify himself as a witness. Does it appear from the motion, that enough was done, to render him competent ? In the first place, he produced a discharge from the plaintiff on the record, and also from his counsel.

This, confessedly, was not sufficient: for he still would have been entitled to the fruits of the judgment, had one been recovered. And in regard to every other act done, it may be remarked, that all depended on the testimony of Wadsworth himself, as the facts were drawn from him, by an examination by the defendant’s counsel. The judge on the circuit might well have doubted, whether the transaction to which he testified, was bona fide.

He might well have thought, that no special indulgence was to be extended to the statements of the real party, thus endeavouring to qualify himself to become a witness, during the progress of the trial, and whose testimony was to meet some exigency, which perhaps, unexpectedly, occurred in the cause. But admitting his statements to be true, and that it is competent for this court to review the inference which the judges on the circuit drew from them, still the question arises, is their effect such as to remove his interest?

He stated, that while the cause was on trial, he had made a parol agreement with Amos Wadsworth, his former partner, and who was jointly interested with him in the execution, that the said Amos should have the whole demand against Harvey, and should pay him, one fourth part of the debt; “and that it was his understanding, that Amos should defray all the expenses of the suit:” that no writing was executed, and nothing paid or delivered, by either party. It may well be questioned, whether upon this state of facts, there was a legal assignment, by James C. Wadsworth, of his interest in this execution.

There was, indeed, a parol agreement, that Amos should have the debt against Harvey, at a stipulated price; but no written assignment was made. There was no delivery, and nothing was paid. Was here any thing more than a mere executory agreement, which might very conveniently have been rescinded, the very moment that James C. Wadsworth left the witness's stand? But neither an agreement to assign, nor an assignment itself, discharged him from the cost, which had already accrued. There must, in order to discharge him from this liability, have been an express agreement to that effect.

Does he swear to any such agreement? He says it was his understanding, that Amos was to pay the costs. This language is, to say the least, of very equivocal import. It may mean, either that he understood such to be the terms of the agreement-or, it may mean, that such was the inference he drew from the agreement he had stated. He surely could not be convicted of perjury, although it should be proved, that not a word was said, on the subject of costs.

If then his testimony left it doubtful whether he was thus discharged, it was the duty of the judge to reject him as a witness:-for it is certainly well settled, in Connecticut, that a liability for costs only, creates an interest, which goes to the competency of a witness. Bill v. Porter, 9 Conn. Rep. 23. Beach v. Swift, 2 Conn. Rep. 269. Barnwell v. Mitchell, 3 Conn. Rep. 101. We are, therefore, of opinion, that the ruling of the judge on the circuit, was correct, and that the motion for a new trial must be denied. In this opinion the other Judges concurred. New trial not to be granted.