Laumier v. Francis

• Decision Date: 31 March 1856
• Citation: 23 Mo. 181
• Parties: LAUMIER, Defendant in Error, v. FRANCIS, Plaintiff in Error.
• Court: Missouri Supreme Court

23 Mo. 181

LAUMIER, Defendant in Error,

v.FRANCIS, Plaintiff in Error.

Supreme Court of Missouri.

March Term, 1856.

1. A person who is interested in the event of a suit, in that he is bound to pay half the damages and costs in case of a recovery by plaintiff, is not “a person for whose immediate benefit the action is defended,” within section 2 of article 25 of the practice act of 1849, (Sess. Acts, 1849, p. 100,) and consequently is a competent witness.

2. Definition of a servitude or easement.

Error to St. Louis Law Commissioner's Court.

This was an action commenced before a justice of the peace to recover damages alleged in the complaint to have been caused by the accumulation of water upon a lot in possession of defendant, adjoining a building in possession of plaintiff. Upon the trial before the Law Commissioner's Court, one R. R. Walton was offered as a witness, who stated on his voir dire that he was interested in the suit, and expected to pay half the damages and costs, if plaintiff should succeed. He was rejected. The defendants duly accepted. It is unnecessary to set forth the evidence bearing upon the nature of the nuisance alleged to have been committed. The plaintiff obtained a judgment for fifty dollars. The defendant brings the case to this court by writ of error.

Skinner, for plaintiff in error.

Hart & Jecko, for defendant in error.

LEONARD, Judge, delivered the opinion of the court.

1. The court erred in excluding the witness Walton, offered on the part of the defendant, although he testified on his voir dire that “he was interested in the suit, and expected to pay half the damages and costs.” By the new code no person is to be excluded as a witness upon the score of interest; but this provision does not extend to “a party to the action, nor to any person for whose immediate benefit this action is prosecuted or defended.” This section is copied literally from the original New York code, which was taken, in this particular, substantially from Lord Denman's act of the 6th and 7th Vic. ch. 28, sec. 1, where the words of the exception are, that the act ““shall not render competent any party to any suit, &c., individually named in the record, or any lessor of the plaintiff, or any person in whose immediate and individual behalf any action may be brought or defended, either wholly or in part.”

In Daviess v. Crain, (4 Sand. S. C. R. 355,) the Superior Court of the city of New York held that an insolvent debtor, who had assigned his property for the payment of his debts, was a competent witness in an action prosecuted or defended by his assignees in relation to his estate, the suit in such case not being prosecuted or defended for his immediate benefit within the meaning of the code. In the Farmers' & Mechanics' Bank v. Paddock, (1 Code Reporter, 81,) it was held that the suit was not defended for the immediate benefit of a person who stated that he was the real owner of the note sued upon and that he had indemnified the defendant against the costs of the action, and this person was accordingly received as a competent witness for the defendant; and in another New York case, (Weston v. Hatch, 6 How Prac. Rep.) which was an action against an executor for work done for the testator, a residuary legatee, under the will, was admitted as a competent witness for the executor, and the court referred to the case of a cestui que trust or ward, where the trustee or guardian was prosecuting or defending, as cases falling within the exception.

In the English case of Hill v. Hitching, (3 C. B. 299,) which was an action by a ship-broker to recover his commission, a witness, called for the plaintiff, stated that he expected to receive one half of whatever should be recovered, pursuant to an agreement between himself and the plaintiff, and yet it was held...