Boynton v. Turner

13 Mass. 391

Opinion

Curia.

On the question of the competency of the witness, wc were at first in some doubt. The case of White vs. Derby would have governed us, but for the release made by the witness in this case. But it has be enargued, that, notwithstanding this release, the witness’s share of his father’s real estate may be lessened. There is much ingenuity in this reasoning, but it cannot prevail. Having discharged himself from all direct and immediate interest in the cause, he must be considered as a competent witness, unless it were in evidence that the intestate left real estate, and that it would be liable to be affected in the way suggested. This evidence must come from the party making the objection ; and, as it does not appear, we are not at liberty to presume it.

* As to the other objection, which goes to the maintenance of the action by the present plaintiff, it is not supported. The case is to be considered as if the intestate had given his son a previous authority to hire the horse and chaise. His ratification of his son’s conduct had relation back to the hiring ; and so the special property must be considered to have been in the father from the beginning. He was then liable to the general owner ; and therefore entitled to this action, in order to indemnify himself for such liability.

Judgment on the verdict