¶1 Had it not been for the bankruptcy, he would not be a good witness; because, by defeating Hunter, he prevented a suit against himself, and retained in his hands what McAuslan paid him, and because McAuslan, being originally liable either to Gibbs or Hunter, must remain so to Gibbs if Hunter fails in this action; for then no other person can claim but Gibbs. But Gibbs having obtained his certificate, and all his estate having been exhausted in paying the debts due from the United States, and there being no fund in the hands of the assignees to be diminished by McAuslan's suit against them, it seems to me there should be a new trial, that this part of the case may be better considered, and that it may be so carefully determined as to give satisfaction to the parties concerned. (368)
¶2 A new trial ordered.
¶3 NOTE. — See Harrison v. Harrison, ante , 355; Farrell v. Perry ,2 N.C. 2 , and the note thereto. *324
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Case posture Posture HUNTER repaired the lighters of the defendant, and defendant drew an order for the amount on Gibbs Barclay, who became bankrupts the day it was drawn. McAuslan says he employed Gibbs Barclay, and that they employed Hunter; that Hunter was their agent or servant, and that they were liable to him; and that this order was only to ascertain the amount which they were to pay; and that there was no consideration, as between Hunter and defendant. Gibbs' deposition was offered to prove this statement; and it was objected that he is inadmissible, because if Hunter, in consequence of such evidence, should fail in this action, then Gibbs establishes a right in himself to claim the money from McAuslan; for the latter admits it was since due to some one, and if not due to Hunter, it is to Gibbs
Barclay. If paid by McAuslan to Gibbs Barclay already, then if Hunter recovers, McAuslan will claim from Gibbs Barclay what he has paid; and, therefore, it is for the interest of Gibbs that Hunter should not recover.
(367) E contra: Gibbs proves he and Barclay owed and paid the money to Hunter. If Hunter should not recover against McAuslan, then he will sue Gibbs Barclay, and put Gibbs to prove, as well as
he can, the payment which he speaks of in his deposition; and possibly, nay probably, Gibbs will not be able to prove it. Then Gibbs is interested that Hunter should recover in this action; for then he (Gibbs) will not be sued by Hunter. Should Hunter recover against McAuslan, then it is said he will sue Gibbs; then if Hunter fails, Gibbs will be sued; or if he succeed, Gibbs will be sued for the money now in controversy. It is therefore immaterial to Gibbs whether he fail or succeed. But it is not true that Hunter's recovery will give McAuslan an action against Gibbs, for if Hunter recovers, and McAuslan then sued Gibbs, the latter may still say, "I had a right to receive the money, and am not bound by the verdict and judgment between Hunter and yourself." Gibbs, therefore, need not fear Hunter's recovery; he is interested that he should recover; for if he fails, then Gibbs will be liable to his action. Gibbs, therefore, when he swears to prevent Hunter's recovery, swears against his own interest. Also, it is to be further considered that Gibbs became a bankrupt, and has obtained his certificate, and there is no dividend, nor likely to be any; the whole of his effects have been taken to pay debts due to the United States, which have a preference, and there remains not a farthing for other creditors. Neither Hunter nor McAuslan can sue Gibbs, because of his certificate; and if either of them sues the assignee, it cannot produce a diminution of the funds, because there are no funds. And, besides, the assignee, supposing they had a fund, would be liable exactly as Gibbs would be, laying the bankruptcy aside, namely, to Hunter if he fails in this action, and, as they say, to the action of McAuslan, if he should recover. In either case a diminution to the same amount will take place, and therefore Gibbs is as much interested that Hunter should recover as that he should not; and, therefore, is an admissible witness. Source: CourtListener
