1 Day 104 | Conn. | 1803
are of opinion, that the Superior Court erred in admitting said testimony,
First, because the facts, proved by the witnesses, cannot support the action of book debt:
Secondly, because the plaintiff cannot, in any form of action, avail himself of his own testimony, to prove faets of this kind.
The action of book debt is peculiar to Connecticut. The allowing a party to support a claim, by his own testimony, is repugnant to general common law principles j and though the action was originally dictated by a supposed necessity, it ought not to be extended beyond the objects of its institution. It would be difficult, perhaps, to lav down any general principle, which would determine, in all cases, what articles may, and what may not, be charged on book. Rut, no charge can be admitted on book, unless the right to charge exists, at the time of delivering the article, and arises in consequence of such deliverv. In this case, delivering the money, gave no 'right to charge it on book ; and if the right existed at all, it arose from facts, which occurred subsequent to thede-lively.
The plaintiff’s right of action, in this case, is founded on a mistake, in taking up the note, and not on the delivery of die money, and ought to have been pursued by an action at common law, and supported by common law evidence. To admit a different principle, would be to admit the partv, in all cases, to swear to a misapplication of money. It is, indeed, difficult to see, why a man may npt testify to a fraud, which entitles him tore-cover back money, as well as to a mistake.