Atwood v. Scott

99 Mass. 177

Opinion

Chapman, C. J.

Experience is not sufficiently uniform to raise a presumption that one who has the means of paying a debt will actually pay it. Accordingly it is held that the fact that a debtor has had such means is not evidence tending to show that the debt has been paid. Hilton v. Scarborough, 5 Gray, 422. On the other hand, the fact that one has not had thi means to make certain payments is evidence tending to show that he has not made them, and such evidence is held to be admissible. Stebbins v. Miller, 12 Allen, 591. Winchester v. Charter, 97 Mass. 140.

The defendant’s testimony that she had considerable sums of money in her possession, was erroneously admitted for the purpose of corroborating her testimony that she had paid the plaintiff; and the evidence as to Nute’s judgment against her was erroneously excluded, because it tended not only to show her want of means, but to contradict her testimony that she paid her rent punctually and had no difficulty with her landlord.

The copias which the plaintiff applied for was rightly refused, because a person is not bound to attend court, or remain in attendance, as a witness, unless his fees have been paid or tendered to him. This seems to the court to be a reasonable construction of the statute; Gen. Sts. c. 131, § 3; and to impose no unreasonable burden upon parties.

First and second exceptions sustained; third exception overruled.