William Butler vs. William Tufts, 13 Me. 302

After a continuance, nisi, the opinion of the Court was drawn up by Weston C. J. The rule now established is, that if a witness be discovered to be interested, during any part of the trial, his testimony is to bo disregarded. 1 Phillips, 101. And in Schillinger v. McCann, 6 Greenl. 368, this rule w'as applied, notwithstanding there had been a previous attempt unsuccessfully made to exclude him, by the party against whom he was produced.

The defendant, to whom Bangs had sqld the yoke of oxen in controversy, called him as a witness, not only to prove the title of his vendee, the defendant, but further to support it, by disproving the title of the plaintiff, which conflicted with his. It was decided in the case of Hale v. Smith, 6 Greenl. 416, that the vendor of goods, who sells them as his own, being bound to warrant the title, is inadmissible as a witness for the vendee. But the interest of a witness may be extinguished by a release, or it may be balanced by an equal interest on the other side.

The plaintiff also claims to be the vendee of Bangs, by the transfer, by Bangs’ consent, of the instrument of sale previously made by him to Chandler. This being the ground, upon which the plaintiff founds his claim, it must, as against him, be taken to be true ; for if it is not, he fails altogether. If a party sells goods to A. as his own, and afterwards sells the same goods to B. as his own, he is liahle to both upon the warranty implied, and in a conflict between them, both claiming under him, he may be a witness for either, his interest béing exactly balanced.

The plaintiff insists, that he was the owner of thejoxen by a prior sale; originally by way of pledge or mortgage, but long since forfeited. The witness has since sold them to another. If they are thereby lost to the plaintiff, the witness is liable to him for their value. And if the plaintiff had prevailed, he would have been liable to the defendant for no greater amount. We regard it therefore as a case where the interest is balanced, and the witness admissible.

As every inquiry was finally made, and as it appears that the plaintiff would have derived no advantage from an examination under the voir dire, it is unnecessary to decide, whether that ought to have been allowed or not. We think the Judge might in his discretion have permitted it. It may be more doubtful, whether it could be claimed as a matter of right. It seems to us very clear, that if the oxen mortgaged or pledged to the plaintiff, only for the delivery to him of the potash frame and kettles, when these were, delivered to his acceptance, his lien on the oxen was gone.

If the kettles and frame were not furnished at the precise time agreed, the plaintiff bright waive that condition, and the jury have found, that they were received by him without objection, in discharge of his mortgage or lien upon the oxen.

With regard to the instructions requested, that the jury might believe what the witness had testified in favor of the plaintiff, and disbelieve what he testified making for the defendant, no doubt they might, if they were satisfied that, he was capable of perjury, or of swearing falsely for the sake of the plaintiff; but we perceive nothing in the case, which would justify such an imputation as the request implies. Nor did the jury; for they gave credit to his testimony, upon which they were instructed the cause principally turned.

The credit of the witness, and every other part of the case was very fairly left to the jury. jExceptions overruled.