Field v. Biddle

1 Yeates 132

Opinion

Per Cur.

We feel a strong repugnance against the testimony offered. Our present inclination is against the receiving of Field as a witness. We know of no case in the books, or by our practice, where a plaintiff has been admitted a witness to substantiate his demand to a jury. This point was very fully argued in an action of covenant, tried at York, May assizes 1789, wherein Margaret Cochran, James M’Kissom and William M’Kissom, executors of Andrew Cochran, were plaintiffs; and James Cochran and William Cochran, executors of William Cochran, deceased, were defendants. There James M’Kissom, one of the plaintiffs, was offered as a witness, and it appeared that he had no part of the residue devised to him by his testator. The court there .mentioned, that they would rather err in the admission than in the rejection of testimony, but they thought themselves concluded against receiving the witness, and he was overruled. In that instance, the costs were offered to be lodged in court. The plaintiffs here might have assigned the bond to Oxley and Hancock, if they chose it, and made themselves witnesses. As they have not done so, the present matter stands precisely in * the same situation as a factor selling goods for his principal, and bringing a suit for the money in his own name, where he is repelled from giving testimony. But if the suit be brought in the name of his constituents, the factor is a competent witness, though he gets is. in the pound, commissions on his sale. 1 Atky. 248. 3 Wills. 40.

However, if the plaintiff’s counsel are willing to run the risque, we will not prevent Mr. Field from giving his testimony; but if he is affirmed, and a verdict should go for the plaintiffs, and upon a more full consideration we should retain our present opinion, on this point also reserved, a new trial will be awarded, without costs.

Mr. Field was accordingly affirmed, and he gave his testimony to the jury; but after a full hearing, they found a verdict for the defendant.

Also cited in 6 Wh. 305, where it was decided in an action by a lessee against his lessor to recover money expended in repairs, that parol evidence was admissible to prove that after the lease had been executed and taken away, the lessor returned to have it attested; that the lessee then mentioned that certain necessary repairs had been omitted and that the lessor then agreed that it should be done by the lessee, at his (the lessor’s) expense.