37 Mass. 467 | Mass. | 1838
delivered the opinion of the Court. The foundation of the action is this ; the defendant’s minor son, having undertaken to transact business on his own account, at a distance from his father, the defendant requested the plaintiff to assist the son in his business, and promised to indemnify him against any loss he might incur, in so doing. One ground of defence was, that this was an undertaking to be answerable for the debt or default of another, and as such no action could be maintained upon it without a promise in writing conformably to the statute of frauds. But the judge instructed the jury, that the case was not within the statute of frauds; and the Court are of opinion that this direction was right.
The cases on this branch of the statute of frauds, are so numerous, that it would be a difficult task to review them ; and the distinctions as to cases which are or are not within the statute, are so nice, and often so shadowy, that it would be still more difficult to reconcile them. One distinction however is well settled ,
It is far from being clear that the defendant would not have been liable, had the plaintiff undertaken an onerous obligation at his request, for the benefit of a third person, even though that third person may have been himself liable incidentally and upon a promise implied by law.
As where the plaintiff, at the request of the defendant, became bail for a third person, a parol prdmise to indemnify, was held good. Harrison v. Sawtel, 10 Johns. R. 242. So a promise by one to indemnify another for becoming guarantee for a third, is not within the statute of frauds, and is good without being in writing. Chapin v. Merrill, 4 Wendell, 657. But it is not necessary to decide this question.
Here is ample consideration shown ; the plaintiff having taken upon himself an onerous obligation at the defendant’s request.
Another objection taken to the directions of the judge was this ; the defendant contended, that it was incumbent on the plaintiff to prove, not only that he had undertaken a responsi1 ility for the son, agreeably to his request, but a separate notice of his having paid the money. But the Court are of opinion that this was not necessary, and that the direction in this respect was right.
Another ground of argument for a new trial is, that as the defendant had undertaken to indemnify the plaintiff, for any assistance he might afford his son, m his business, this must apply
Another point of some interest and importance in practice was this ; one of the counsel in the cause was called as a witness by the adverse party to testify to some fact. Not recollecting it particularly, he was requested to look at his minutes, then lying on the table, to aid his recollection in the matter inquired of, which he declined doing unless required by the court. He was so required, and to this objection is now taken.
We lay out of the case the fact, that the witness in the par ticular case, was counsel in the cause. Such a witness is not only fully protected, but he is inhibited by law from disclosing any facts communicated to him, or of which he has acquired a knowledge, in consequence of his being professionally engaged in the cause. Whether it were better policy that the law were so framed as to render counsel incompetent as witnesses for the adverse party, is a legislative and not a judicial question. As the law stands they are competent, under the limitation before stated. The argument therefore from the policy of the Jaw in regard to the peculiar condition of counsel, can be of no avail.
The question then is, whether a witness who has the means of aiding his memory by a recurrence to memoranda or papers in his power, can lawfully be required to look at such papers, to enable him to ascertain a fact with more precision, to verify a date, or to give more exact testimony than he otherwise could, as to times, sums, numbers, quantities and the like.
There may be cases undoubtedly, in which it would be a
But there are other cases, in which it would lead to an entire perversion and frustration of the purposes of justice, if a witness could not be required to refresh his memory, and prepare himself to testify, by an examination of papers in his own custody or power, or when they are produced at the trial. As where a mate of a vessel, who had kept his cargo book, or an inspector of elections his tally list, or a clerk in a warehouse his memorandum of the receipt and delivery of goods, they may testify with great accuracy by the aid of their memoranda, but very imperfectly, or not at all, without. And multitudes of similar cases might be suggested. Suppose these witnesses, from malice or caprice, or still worse, from a desire to favor the adverse party, should refuse to examine their memoranda ; the rights of life, liberty, property or reputation, public and political, as well as private, civil and social rights, might be affected and put in jeopardy. It would be hardly going beyond the principle contended for, to say that an attesting witness, called to prove a will or deed, if he chose to close his eyes and refuse to look at the instrument, might not be required to look at it, and thus qualify himself to say whether he attested it or not.
But the view of the Court is, that, however this question was decided, it is no ground for a new trial. It is a question of sound judicial discretion, for the judge at the trial, to direct how the examination shall be conducted ; and he will be governed in this respect, by a view to the rights of the parties and the furtherance of justice, having due regard to the rights of the witness, under all the circumstances of the case. The witness is bound under his oath to testify the whole truth, and he ought to do what is reasonable to enable him to perform that duty, faithfully and sincerely, according to the spirit of his oath.
Judgment on the verdict