Legee v. Burbank — 2 E.D. Smith 419

Majority

p. 419

Boltis H. Legee v. Paul D. Burbank.

Headnote

A debtor, who has assigned his property for the benefit of his creditors, although interested in the event of a suit prosecuted by his assignee in behalf • of the assigned estate, has not that direct and immediate interest which renders him-incompetent to testify on behalf of the assignee, within the meaning of §399 of the Code of Proeedure.^[1]

p. 420

This was an action in the nature of trover, to recover the value of a set of four-horse stage harness, levied upon by the

p. 421

defendant, under an execution against a third party. The plaintiff claimed as the assignee of the debtor, under a general

p. 422

insolvent assignment, in trust for the benefit of creditors. On the trial, in the Fourth District Court, the assignor was

p. 423

produced as a witness for the plaintiff, and objected to, but the objection was overruled.

The plaintiff recovered judgment for $55, from which the defendant appealed.

J. Cole, for the appellant.

J. M. Cuiteau, for the respondent.

There was no error committed below in permitting the plaintiff’s assignor to testify. The ground of objection to his testifying was not stated by the defendant on the trial, but it is now urged that the suit

p. 424

is prosecuted for- Ms immediate benefit. Not so. He may be interested in having the property applied to the payment of Ms debts. But if the defence attempted, be founded in fact, a recovery here will leave him exposed to liability, to the same extent, for the debt, for the payment of which the defendant claims that the property has been taken in execution.

Be this as it may, he cannot control the suit, nor direct the disposition of the amount recovered. The benefit to result to him is only incidental. The money goes into the pocket of another.

The assignment to the plaintiff passed all of the assignor’s property, and needed no particular specification to embrace the harness in question.

The proof in regard to the value of the harness, &c., if not very precise, is, we think, sufficient to sustain the finding. Some of the evidence is clearly so, and if we should conclude that upon the same evidence we would have assessed the damages at a few dollars less, it is not a case in which they are excessive, or which calls for a reduction of the amount.

Judgment affirmed.