Foster v. Thompson

Shaw, C. J.

There is no doubt, we suppose, that Boynton, the attaching creditor, though deeply interested to the whole amount of the value of the property in controversy, not being a party to the suit, was a competent witness, by force of the statute. St. 1852, c. 312, § 60. And, under .the circumstances of the case, the court are of opinion that the waiver of the objection by the plaintiff, after the defendant had closed his evidence, and the witness was absent, though he returned into court after the argument commenced, did not obviate the force and effect of the plaintiff’s exception.

It is true that the testimony, coming from a party thus interested, is to be received with great caution, and most carefully weighed; still, as it is made competent by statute, it is to be received and submitted to the jury, who will judge of the weight to which it is entitled.

Then the court are of opinion that the fact proposed to be proved was admissible. It was a declaration by the plaintiff of purpose to do an act, which, it was alleged, he was in fact doing, in assisting this particular debtor to avoid the claims of his creditor by any means in his power; and one of the most obvious of those means was taking a fraudulent conveyance of his property to prevent its attachment. The expression used might be the language of passion and excitement, and therefore not to be deemed a serious declaration of purpose, leading to action; but that was a consideration for the jury, and did not affect the question of admissibility.

Exceptions sustained.