Boyd v. Brotherson

10 Wend. 93

• Court: New York Supreme Court
• Decided: January 15, 1833
• Status: Published

Opinion

By the Court,

Savage, Gh. J.

Had the note in this case been appropriated by the maker to the payment of any other precedent debt than the identical debt to secure the payment of which it was made, the latter part of the charge of the judge at the circuit would have been incorrect, according to the decision of this court in Rosa v. Brotherson, ante, 85; but as the note in question was appropriated according to the original intention, the charge of the judge in this respect does not affect the case. The question whether it was the intention of the parties to the note to have the words hundred dollars inserted therein after the word eight was fairly and properly submitted to the jury, who have by their verdict said that such was the intention. This settles the question of the defendant’s liability, unless the verdict is based upon improper-testimony. M’Clelland was a competent witness; his interest is neutralized. If the plaintiffs succeed, he is liable to the defendant for so much money paid for his, the witness’ use ; if the plaintiffs fail, then the witness remains liable to Boyd & Phelps on his original indebtedness. His interest being balanced, all other objections go to his credibility.

New trial denied.