1 U.S. 59 - McVeaugh v. Goods — 1 U.S. 62

¶1Competency of witness.

¶2On the trial of an information against certain goods illegally imported, a witness, who assisted in making the seizure, and who stated on his voir dire that he expected some compensation from the generosity of the informer, in ease they were condemned, but not otherwise, w ae rejected.(a)

¶3Certain goods of British manufacture being imported into the county of Philadelphia, contrary to the act of assembly, passed the 10th of September 1778, they were attached, and this information filed against them. The owners of the goods exhibited a claim, and the merits of the case were brought to trial, at an adjourned court, on the 10th of January 1782, when the following points of evidence were ruled.

¶4In support of the information, one Scull was called as a witness, who, being examined on the voir clire, said, that he assisted in making a seizure of the goods; and in case they were condemned, but not otherwise, he expected some compensation from McVeaugh’s generosity, although he had received no certain promise of that kind.

¶5Lewis, for the claimants,

¶6contended against the admission of Scull’s testimony ; and urged, that if a man, who is not, in fact, interested, apprehends himself to be so, he will naturally be biassed in favor of that side, on which he presumes his interest to lie ; which is a sufficient cause to disqualify him as a witness. See Str. 129.

¶7Sergeant, for the informant,

¶8likened this to the case of an heir, who expects to be benefitted by his father’s estate, yet, as that really depends on the will and pleasure of the father, it is no ground to prevent his being a witness. Scull has no certainty of reward; he has not even a promise ; and whatever may be his expectations, the matter still depends entirely on will and pleasure of the informant. But—

¶10By the Court.

¶11It nearly concerns the administration of justice, that witnesses should be free from every kind of bias. It is true, that Scull has no positive promise of a reward ; but, we think, the expectation which he acknowledges, in case the goods shall be condemned, must create such an influence in his mind, as renders it improper for him to give testimony on this occasion.

¶12Lewis offered in evidence a pass from a justice of New Jersey, permitting the goods in question to be conveyed through that state.

¶13Sergeant objected, that the pass of a justice of New Jersey, could not be given in evidence to defeat an act of the legislature of Pennsylvania.

¶14To this, Lewis replied, that it was offered merely to obviate any imputation of fraud in concealing it. But—

¶15By the Court, it was declared, that the pass was not admissible as evidence. (b)

(b)

¶16 Upon the principal point determined in this case, viz., the incompetency of the witness offered, there has been some fluctuation of opinion. In the case of Innis v. Miller (2 Dall. 50), a creditor of the defendant, who stated, that he expected, if the de*60fendant recovered, to be paid at least a part of his debt, was rejected, the court saying, “ Although a creditor is not excluded from giving testimony, as such, yet, if he acknowledge an expectation that he shall be bettered by the fate of the cause (as in the case of McVeaugh v. Goods, which was properly ruled), he is sensible of a positive interest, that must give a bias to his mind.” Recent deoisions, however, in this state, have gone far to shake the authority of both diese cases. In Miles v. O’Hara (1 S. & R. 32), an attorney was held to be competent, although he admitted that he expected to receive a larger fee, in case his client recovered. In Fernsler v. Carlin (3 S. & R. 130), a witness who had expressed his belief that what should be recovered from the defendant would be deducted out or the fortune of the wife of the witness, was held nevertheless to be competent. The case of McVeaugh v. Goods was cited on this argument, and according to a MS. note with which I have been favored by Mr. Ingraham, the court expressed strong doubt of the propriety of the decision, although this doubt does not appear in the printed report. In Long v. Bailie (4 S. & R. 222), it was expressly decided, that it was not sufficient to exclude a witness, that he believed himself to be interested, if he was not so in point of fact, or that he was under an honorary engagement which could not be enforced at law. McVeaugh v. Goods, and Innis v. Miller, were cited by C. J. Tilghman, in the course of his opinion, and he expressed his dissent from the rule laid down by Lord Holt in Fotheringham v. Greenwood (1 Str. 129), upon the authority of which M’Veaugh v. Goods was decided. In each of the three recent cases (Miles v. O’Hara, Fernsler v. Carlin, and Long v. Bailie), C. J. Tilghman adopting the reasoning of Mr. Sergeant, in the text, compared the case of the witness to that of a child who expects to be benefited by the increase of his parent’s estate, but is nevertheless a competent witness. See also Harris v. Smith, 3 S. & R. 23; Lewis v. Manly, 2 Yeates 200; Henry v. Morgan, 2 Binn. 497; Pollock v. Gillespie, 2 Yeates 129, and Ludlow v. Union Ins. Co., 2 S. & R. 119, 132.