Unknown County MsArchives Court.....Unknown, Phebe 1834
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Source: Reports Of Cases Adjudged In The Supreme Court Of Mississippi
Written: 1834
Recorded: 1818

PHEBE ET AL vs. PRINCE & PRINCE.

pages 131-134

The interest which renders a witness is incompetent, must be direct and 
positive, not remote or contingent, and it must be an interest in the event of 
the suit.

If the witness believes that he has an interest in the event of the suit, 
though that belief be erroneous, he is incompetent, but it is otherwise if he 
believes that the interest is only honorary.

Where the verdict may be used for or against the witness in another suit, he 
is incompetent, though called to testify against his interest.

There are four causes which render a witness incompetent. 1st. If he be 
insane, an idiot or lunatic. 2d. If he be an athiest, or does not believe in a 
state of future rewards and punishments. 3d. If he be convicted of an infamous 
offence. 4th. If he be interested in the event of the suit.


OPINION OF THE COURT—BY THE HON. POWHATTAN ELLIS.

This case comes up on a writ of error from the court below; and the plaintiff, 
by his counsel, assigns for error in the record, the following facts:

1st. The court erred in rejecting Mrs. Duggin, as an incompetent witness, upon 
the ground that she held in her possession a negro, one of the same family of 
petitioners; and

2d. The court erred in rejecting Mrs. Duggen as an incompetent witness, 
because she declared she felt interested having exchanged one of the 
petitioners for another negro.

In reference to the adjudged cases in our courts, it may be laid down as a 
fundamental principle of the law, that there are four causes which may exist, 
going directly to produce the incompetency of the witness; either of which, 
will exclude him from being sworn.

1st. If he be insane, an idiot or a lunatic, he is incompetent: So, if he be 
an atheist, or does not believe in a state of future rewards and punishments. 
So if he be convicted of an infamous offence; and so, also, if he be 
interested in the event of the suit. It is upon the last mentioned point of 
disqualification, the decision in the present case must rest. The reported 
cases in the old books upon this point, are very contradictory and 
unsatisfactory, and never were resolved into a well established principle of 
the law, until the celebrated case ruled by lord Mansfield, in 1 Term Reports, 
296. There the court decided, they would refer every objection to the 
credibility of the witness, unless it established an immediate interest in the 
event of the suit. And Mr. justice Buller, in commenting upon the question of 
interest observed, "It is much to be lamented, that there is such a confusion 
in the cases."

I have always been of opinion, that the best rule to go by, was to consider, 
whether the witness was to derive any advantage from the event of the cause: 
But many cases go strongly to contradict that idea. A clear and manifest 
distinction is taken between the interest which a witness may have in the 
event of the cause, and the question to be put to him; but the judges 
declared, it was best to let the objection go to an interest in the event of 
the cause, before they would declare him imcompetent, and in doing this, many 
of the old cases were overruled, and something like a permanent land mark 
established, to regulate the courts in their future decisions. It will not do 
to disqualify a witness, because he may have a bias upon his mind, and feels 
anxious as to the result of the suit, although such a circumstance will and 
ought to have its proper weight with the jury, when they take into 
consideration his credibility; yet, it should not touch his competency. As if 
a witness is called to testify, and he stands in the same situation with the 
person who calls him, this will not be a disqualification upon the ground of 
interest, yet, he feels a strong bias upon his mind, as it relates to the 
final determination of the suit. So, "if several persons are separately 
indicted for perjury in swearing to the same fact, either of them, before 
conviction, may be a witness on the trial of the others." So, if an action be 
instituted against an underwriter on a policy of insurance, another 
underwriter is a competent witness. And lord Kenyon said, the rule was founded 
in law and in justice, and proceeded upon the principle, "If the proceeding in 
the cause cannot be used for him, he is a competent witness, although he may 
entertain wishes upon the subject, for that only goes to his credit, and not 
to his competency." 3 Durnford and East 32. 7 Term Reports, 62. 4 Burrows, 
2251.

If then, the witness be interested in the event of the suit, or if the verdict 
and judgment of the court can be used either for or against him in a 
subsequent suit, it will be a decided disqualification, and he cannot be 
sworn. 3 Johnson’s Cases, 82. 4 Johnson’s Reports, 302. 1 Henning and Munford, 
165. As to the quantity, or the nature of the interest, it makes no difference 
how great or small the interest is, if it be satisfactorily established in the 
mind of this court, it will operate a total disqualification. As to the 
interest, it must be direct and positive in its nature, and not remote and 
contingent in its operation. Carter vs. Pearce, 1 Term Reports. "In a late 
case in the high court of admiralty, an objection was made to the witness, who 
acknowledged in his answer, that he could not say he was not interested, 
inasmuch as he conceived he would be entitled to share, if his vessel should 
be pronounced a joint captor, though he had signed a release. And Sir William 
Scott decided that the witness was incompetent; for he had always understood 
the distinction to be, that if the witness says only that he expects to share 
from the bounty of the captors, he is not disqualified, or rendered 
incompetent, whatever may be the deduction of credit to which he is exposed. 
But, if he thinks himself entitled in law, he acts under an impression of 
interest, which renders him incompentent, however erroneous that opinion may 
be. So in this case, when Mrs. Duggen was called by the petitioners, she 
expressly stated, "she felt herself interested, having exchanged one of the 
petitioners for another negro." It was not denied by the counsel in argument, 
that if Mrs. Duggen had been called, by defendant, and verdict and judgment of 
eviction was rendered against him, that the witness would be evidently 
incompetent, because the record in the case could be used against the witness 
in an action instituted by the present defendant against said witness. 
Although there is a distinction taken in the books, in relation to the 
competency of witnesses, depending upon the call of plaintiff or defendant, 
yet when a case is presented to our consideration, and the result of the cause 
may be used, either for or against the witness in another suit; no matter 
whether he be called to testify for or against his rights, it will, in our 
estimation, go to his disqualification and render him incompetent; and 
although the plaintiff in this case may be willing to run thc risque, as the 
witness is called to testify against his interest, yet, we think it would be 
going too far, to reverse the judgment of the court below upon the lasr ground 
mentioned in the assignment of errors. Upon the first point there can be no 
doubt.

Let the judgment of the court below be affirmed.

HAMPTON, chief justice, concurred.

Note.-There are many conflicting authorties in relation to the doctrines 
involved in this decision. A majority of the states have not sustained the 
positions assumed by the court in this case. A contrary rule also prevails in 
Louisiana, and in those countries under the empire of the civil law. A certain 
interest in the event of the suit renders the witness incompetent, without 
regard to the magnitude or extent of the interest. If we extend this rule, so 
as to embrace individuals having no interest in the event of the suit, but 
believing themselves to be interested, is there not great danger of excluding 
testimony, calculated to shed much light on the investigation of causes? Those 
general rules are most judicious, which, in a majority of cases, will probably 
produoe more benefit than injury in the search after truth. How is the fact 
that the witness believes himself to be interested to be ascertained? By 
questions propounded to the witness upon examination on his voire dire. As 
this belief, of the witness in an interest which does not exist, must be 
confined to the bosom of the witness himself, would he avow this belief and 
thereby exclude the party calling him from the benefit of his testimony, if he 
were willing to commit perjury for the benefit of that party; and if he were 
willing to do so, would he not conceal the fact that he believed himself to be 
interested? The rule then, would not in practice, exclude those who were 
willing to commit perjury, whilst its practical effect would be, to prevent 
the examination of witnesses, having no actual interest in the event of the 
suit, and in whose testimony the jury might so often repose with implicit 
confidence. The leaning of the courts in the modern decisions, is to confine 
the objection to the credibility of the witness. Why then enlarge the ancient 
rule, so as to place an ideal, on the same footing as an actual interest? Is 
the competency of the witness to depend on his ignorance of the law of 
evidence, and is this to deprive parties of important testimony? Even an 
interested witness cannot deprive a party of his testimony, by refusing to 
receive a release, why then should he be permitted to do so, by persisting in 
a belief that he was interested, when the contrary might be evident to the 
bench, the bar, and the jury? Are persons called as witnesses, to be converted 
into judges in their own case, in the last resort, of the law of evidence, and 
their ignorance, be permitted to inflict a serious injury upon others? If a 
belief of a witness in an interest, where none exists, should exclude his 
testimony, why should not his belief that he was not interested, when the 
contrary was the fact, render his testimony admissable. If his belief should 
be the standard in the one case, why not in the other?

Nor is it perceived, why a witness should be excluded from testifying against 
his interest.

Because an individual is interested in the success of the plaintiff, is there 
any good reason why the defendant should be deprived of the benefit of his 
testimony. In such a case, the motives of interest, against which the person 
is called to depose, are superadded to the sanctity of an oath, to the 
dictates of conscience, to the fear of discovery and the apprehension of 
punishment here or hereafter. Such a witness, would in almost every case be 
believed by the jury. Why then exclude his testimony?

It must be conceded, however, that the points ruled by the court in this case, 
are sanctioned by many respectable authorities.


Source: Reports of Cases Adjudged in the Supreme Court of Mississippi, June 
Term, 1818, By R. J. Walker, Reporter of the State. Natchez: Printed at the 
Courier and Journal Office, 1834.

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