Van Horne's v. Brady

1 Wright 451, 1 Ohio Ch. 451

• Court: Ohio Supreme Court
• Decided: September 15, 1833
• Status: Published

Opinion

WRIGHT, J.

The book is not of itself evidence.

It was then proved that Van Horne kept regular books, by those dealing with him. That he had a clerk, one Baldwin, who made the entries, or part of them, but having since married the widow, is interested as one of the distributees of the estate.

Baldwin was then called as a witness.

WRIGHT, J. • The witness is incompetent to testify to the jury, but he may relate these matters to the court, as circumstances going to show that the books ought to be admitted to the jury.

1. The promise is not in writing, and is to pay the debt of another.

2. There is no count in the declaration upon such promise. He cited 1 Ch. Pl. 339.

II. Stanberry contra.

■453] * WRIGHT, J. An undertaking to pay the debt of another is special; the law does not imply or raise such an undertaking, from a pre-existing debt. The debt in this case was owing by another person — the person against whom it is sought to raise an assumpsit was not bound to pay, and owed no duty, from which the promise could be inferred. Without declaring specially in such a case, a recovery cannot be had, even if the promise is in writing. The evidence is rejected.

Judgment for the plaintiff.