Brooks v. Ball

18 Johns. 337

• Court: New York Supreme Court
• Decided: October 15, 1820
• Status: Published

Opinion

Spencer, Ch. J.

delivered the opinion of the Court. The principal question, presented by this case is, whether a promise to pay a sum claimed to be due by one party and denied by the other, if the party claiming would, swear to the correctness of the claim, and he does so swear, is a valid promise ? Another question was made on the trial, whether it was competent to the defendant below to prove that the plaintiff below, either swore falsely or was grossly mistaken in the affidavit which he made ?

It has been frequently decided, that a promise to pay money, in consideration that the plaintiff would take an oath that it was due, was a valid and binding promise. Thus in Bretton v. Prettiman, (Sir T. Raym. 153.) the plaintiff declared that the defendant promised, in consideration that the plaintiff would take an oath that money was due to him, he would pay him, and the plaintiff averred that he swore before a master in chancery. On demurrer, it was adjudged for the plaintiff, and, as the reporter states, because it was riot such an oath for which he may be indicted. In Anin & Andrews, (1 Mod. 166) there was a promise ifo pay, if the plaintiff would bring tvyo witnesses before a justice of the peace, wjj0 sj10u](j c]ep0se that the defendant’s father was indebted to the plaintiff; and two judges against one, thought it not a prophane oath, because it tended to the determining a con-* troversy, and the plaintiff had judgment. This case occurred before the statute of frauds; the promise would now be holden to be void, unless in writing, it being to pay the debt of a third person. The case of Bretton v Prettiman, is differently stated in 1 Sid. 283. and 2 Keb. 26. 44. It is there stated to be a promise to pay, if the plaintiff would procure a third person to make oath that the money was due. But this makes no difference in principle, for, in either case, the oath was extra-judicial.

■ In Stevens and others v. Thacker, (Peake’s JV P Rep. 187.) the defendant was sued as the acceptor of a bill, and alleged it to be a forgery, and offered to make affidavit that he never •had accepted it. The plaintiff agreed not to sue the defendant, if he would make the affidavit. The affidavit'was drawn,, but not sworn to. Lord Keuyon said, that had the defendant sworn to the affidavit, he should have held, that he had discharged himself, though the affidavit had been false,; for the plaintiffs, who had agreed to accept that affidavit, as evidence of the fact, should not, after having induced the defendant to commit the crime of perjury, maintain an action on the bill. In Lloyd & Willan, (1 Esp. Rep. 178.) the defendant’s attorney proposed to the plaintiff’s attorney, •that the defendant should pay the demand, if the plaintiff’s porter would make an affidavit, that he had delivered the goods in question to the defendant. The affidavit was made} and Lord Kenyon held it to be conclusive, and that the defendant was precluded -from .going into any defence in the case.

These cases, which stand uncontradicted, abundantly -show that such a promise as the pressent, is good' in point of-law; and that the making the proof or affidavit, whether by a third person or by the party hitnself, is a sufficient consideration for the promise. It is not making a man a judge .jnhis o.wncause; but it is referring'a disputed fact to the conscience of the party. It is begging the question to suppose that it will lead to perjury. If the promise is binding, because the making the propf or affidavit is a consideration for it, the defendant must necessarily be precluded from gainsaying the fact,

(a) He voluntarily waives all other proof; and to allow him to draw in question the verity or correctness of the proof or affidavit, would be allowing him to alter the conditions of his engagement, and virtually, to rescind his promise.

Judgment affirmed.

Such is the principle of the civil law, as to the effect of the decisory oath, (le serment decisoire) as the French lawyers term it, or the oath of verity, as it is called in the Scotch law. The Digest contains many just rules and distinctions as to the cases in which the oath may be deferred. It is considered as an agreement or contract between the parties» (iransactio,) and as of greater force even than a judgment, (res judica-ta.) It might be deferred in regard to all matters of civil controversy, and in any stage of a cause; but it could be deferred to a party, in respect only to his own personal acts. When taken, it constituted the presumplio juris et de jure, which precluded all proof to the contrary. The party became entitled to judgment in his favour, or to be for ever discharged from the cause of action. Either party might defer the oath to the other. If the party to whom the oath was deferred, refused to take it, or to refer it back to the other, he lost his cause; if the one to whom the oath was referred back, took it, what he swore to was deemed conclusively proved. “ Cum res jusjurandum demissa sit, judex ab' solvit: referentem audiet, et si actor juret, condemnet reum: nolentem jurare reum, si solvat, absolvit: non solventem condemnat: ex relatione, jurante actore, absolvit reum.” (Dig. lib. 12. tit. 2. 1. 34. Poth. Trait. des Oblig. Part 4. ch. 3. s. 4. No. 912, 913, 914. Ersk. Inst. 779. Book 4. tit. 2. s. 8, 9.)