Phelps v. Riley

Hosmer, Ch. J. The plaintiffs aver, that Riley & Luddington, by a note under their hands, promised to pay a certain sum ; and when exhibited, the note appears to have been subscribed for Riley and Luddington, by Collins Baldwin, their attorney. Whether this constitutes a variance, is the first question made. . In every.declaration founded on promise, it is necessary to shew the contract, and how the defendant became a party to it; as that he made, accepted, indorsed or delivered it. These allegations, however, are sufficient, although the defendant did not in fact do either of the acts himself, provided he authorized the doing of them. - The pleader may set forth the fact, with literal precision ; or he may declare according to the operation of law on the contract. , The averment, that Riley and Luddington, under their hands, promised, &c. is not such a declaration on fact, that it requires proof of the act having been done by them personally. It is sufficient that facts took place, which, in point of law, are equivalent. The case of Levy v. Wilson, 5 Esp. Rep. [271] 180., is not parallel. The expression, “ his own proper hand-writing,” in that case, ties down the allegation to the fact, as much as if it had been averred, that the defendant did the act, “by his own natural hand.” But, the words, “ under their hands,” are not so precise as to authorise the court in saying, that the averment was on the literal fact, and not on the operation of law. 3 Chitt. Plead. 2. Bass v. Clive, 4 Campb. 78. Chitt.on Bills, 358, 9. Turberville v. Stampe, 1 Ld. Raym. 264. Brucker v. Fromont, 6 Term Rep. 659. Helmsley v. Loader, 2 Campb. Rep. 450. Eliot v. Cooper, 2 Ld. Raym. 1376. Erskine v. Murray, 2 Ld. Raym. 1542. Sigony v. Richards, & al. 1 Root, 119. It is said, that the contract declared on, is usurious, the consideration having been eighty dollars only. The promise was “ to pay eighty-eight dollars in current bank bills, such as pass in Norfolk between man and man.” In the construction of this agreement, I have experienced no difficulty. It was to deliver bank notes, of the specified description, to the nominal amount of eighty-eight dollars. The paper circulating at Norfolk, at the date of the contract, having depreciated ten per cent, repels the pretence of usury. Whether the court should have compelled Collins Baldwin to testify ; and if not, whether for this cause a new trial ought to be granted ; are the remaining enquiries. The plaintiffs had acquired an interest in the testimony of Baldwin, by his execution of the note. This was before he indorsed it; or if they are to be considered as cotemporaneous acts, the right of the plaintiffs to his testimony was not relinquished. Undoubtedly, the plaintiffs subjected themselves to a disadvantage, by admitting an opposing interest in Baldwin ; but their privilege in the evidence of the Witness,—a privilege which might be indispensible to their recovery,—they did not abandon. Besides, the release of Baldwin places him in the same condition, as if he had never indorsed the note. Nothing remains but the interest which he voluntarily assumed, by giving bonds, without the consent or interference of the plaintiffs ; and this constitutes no reason for withholding his testimony. It was laid down in Bent v. Baker, 3 Term. Rep. 34. 37. as a general principle, that where a person makes himself a party in interest, after a plaintiff or defendant has an interest in his testimony, he may not deprive the plaintiff or defendant of [272] testimony. * Although this assertion may be too -broad, according to the intimation in Forrester v. Pigou, 1 Mau. & Selw. 9., and a person must not be prevented from transacting bugjness for his own advancement in life ; nor, if this is done bona fide, be compelled, in such case, to testify against himself; yet this principle lias no bearing on the present case. The interest of Baldwin was not acquired in the common course of business for his own profit, but by agreement with the defendant, without any expectation of personal benefit. It would be dangerous in the extreme, to permit the right of the plaintiff to his testimony to be destroyed, by his voluntary act, performed at the request of the defendant. In Jackson d. Woodhall & l al. v. Rumsey, 3 Johns. Co. 237. the court seems to have gone the length of recognizing the doctrine in Bent v. Baker ; because otherwise it would be in the power of the witness, and even of the adverse party, to deprive the person wanting his testimony of the benefit of it. It is not necessary to express an opinion, as the case does not exist, whether the illegal compulsion of a witness to testify, is sufficient ground for a new trial. The other Judges were of the same opinion. New trial not to be granted.