Pike v. Wiggin

The only question in this case is, whether the declarations of Batchelder were rightly admitted in evidence.

No objection was made to the admissibility of the testimony that the plaintiff said, that any arrangement made by Batchelder would be satisfactory — that Batchelder after-wards agreed to receive the Ladd cattle in discharge of the receipt, and that they were so taken, and sold on the execution. This was a lawful contract, which would discharge the defendant. 2 N. H. Rep. 89, Cilley vs. Jenness. If this evidence was credited there was an end of the action. It was to fortify this, that the evidence was introduced of Batch-elder’s declarations at a subsequent time, to which the objection is taken.

These declarations were rightfully admitted, because Batchelder was a party in interest at the time, and it had been proved that the plaintiff had recognized him as such. The receipt had been taken upon an attachment, made on his debt, and the property had gone back into the possession of the debtor. The plaintiff was liable only to Batchelder, and a discharge by him of the debt would have operated to discharge the receipt. 11 Mass. Rep. 320, Lyman vs. Lyman. So he might have discharged the plaintiff from his liability on account of the attachment, and that would have discharged the liability of the defendant; and what he might have done thus indirectly, he might have done directly, and his discharge would have been valid. The plaintiff had no interest aside from the rights of Batchelder. When those were terminated, the claim of the plaintiff on the receipt was at an end. Batchelder therefore had a direct interest in the receipt, and the declaration of one who is a party in interest is admissible in evidence. 2 Stark. Ev. 41, 44.

Nor can the subsequent release, from the plaintiff to Batch-elder, for the purpose of making him a witness, deprive the defendant of the benefit of this testimony. It is not perfectly clear that this release was sufficient to make him a witness, without a release or assignment from Batchelder to *359the plaintiff of all interest in the suit. And if such release had been given, it must have taken away any right of the plaintiff to recover more than nominal damages. Possibly he might under some circumstances have been entitled to recover to that extent, where the creditor had released his interest after the action was commenced; and perhaps an assignment of all interest in the receipt, and of so much of the judgment as might be satisfied by the recovery, would have enabled the plaintiff to recover the value, to his own use. But it is not necessary to settle any question of that nature at this time.

Judgment for the defendant.