Plumb v. Whiting

4 Mass. 518

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1808
• Status: Published

Opinion

• This motion was briefly spoken to by T. Williams in support of it, and Hastings on the other side. The action was continued nisi for advisement, and at the March term succeeding in Suffolk, the opinion of the Court was delivered by

Parsons, C. J.

If the plaintiff’s son was immediately and directly interested in the event of the suit, it is very clear that he ought to have been rejected ; and if he was to have one moiety of his earnings, he was directly interested in the event of the suit to recover them. Now, the witness produced by the plaintiff swore that by the bargain the plaintiff had agreed that the son should have half his wages, and this testimony was not contradicted ; nor can the credit of this witness be impeached by the plaintiff, who produced him. The plaintiff has himself proved the interest of his son, whom he offers as a witness; and the son, being thus proved to be interested, ought not to have been admitted as a witness for the plaintiff.

For the plaintiff, it has been argued that the engagement of the father to let his minor son have half his wages, is a voluntary promise resulting from the father’s bounty, and cannot be enforced at law; and that an interest resulting from a voluntary promise not obligatory in law will not disqualify a witness.

If a witness would testify under the impression of an interest, which he honestly believes that he has in the event of the suit, he cannot be sworn; for the effect on his mind must be the same, whether his interest arises from a legal contract, or from a gratuitous promise, on which he confidently relies,

(a) And in this case it does not lie with the plaintiff to say that the witness he produced does not confide in the promise which the plaintiff himself has made to him.

The verdict must he set aside, and a new trial granted.

[The contrary is now the established law. 1 Phillips’s Ev. 128. — Albany vs. Hughes, 17 Wend. 94. — Stall vs. Catskill Bank, 18 Wend. 466. — Smith vs. Downs, 6 Conn. 371. — Long vs. Baillie, 4 S. & R. 222. — Dellone vs. Rehmer, 4 Watts, 9.— Stimmell vs. Underwood, 3 Gill. J. 282. — Union Bank vs. Knapp, 3 Pick. 96. — Ed.]