Gilpin v. Vincent

9 Johns. 219

• Court: New York Supreme Court
• Decided: August 15, 1812
• Status: Published

Opinion

Per Curiam.

The question arising upon this record is, whether George Ferguson was a competent witness for the plaintiff below. He was under no legal obligation to contribute to the expenses of the suit, and had no interest in the event. It depended upon the pleasure of the plaintiff, whether or not he would give the amount of the recovery in the suit, or any part of it, to the society, of which the witness was a member, and if it had been certain, yet, as the society was a mere charitable institution, in which the witness had no personal interest or responsibility, his being a member would not disqualify him. (Weller v. Governor of the Foundling Hospital, Peake’s N. P. Cases, 153.) But the witness said “ that if the plaintiff failed, and should ask him, he thought he should give something, as he usually did in such cases, although he was in no way bound to do it, but should be governed merely by his general practice and principle.” This declaration did not show that he had any interest that disqualified him. There was no fixed, or certain, or legal interest. It depended entirely upon his volition, and upon the contingency of his being asked by the plaintiff and upon his sense of his general practice and principle. An interest depending upon such circumstances, was altogether vague and uncertain, and did not amount even to an ideal or honorary obligation to pay ; and it has been ruled, that even such an obligation does not go to the competency of the witness. The judgment below must be reversed.

Judgment reversed.