Copp v. Upham

3 N.H. 159 | Superior Court of New Hampshire | 1825

Richardson, C. J

delivered the opinion of the court.

The question to be decided in this case is, whether the declarations of Enoch Eh were, under the circumstances, competent evidence to go to the jury ? it does not appear, that he had any interest in the event of the suit. If any thing be due from him to Copp, it will remain due, let the event of this action be what it may.

But it is said, that he could not be compelled to testify . against his own interest, and to give evidence tending to shew, that he owed a debt. On this point there has been much diversity of opinion. Lord Kenyon ruled, that a witness was not bound to give an answer to a question, wbicb might subject him to a civil action, Peake’s Ev. 137. In Connecticut, the law on this point is settled conformably to the opinion of Lord Kenyon.

But, on the trial of the impeachment of Lord Melville, eight of the twelve judges of England, with the Lord Chancellor, were of a different opinion. (Swift’s Ev. 78—Phill. Ev. 208, note ) And it is now declared by statute in England, that a witness cannot, bv law, refuse to answer a question relative to the matter in issue, on the ground, that the answering of such question may tend to establish, that he oives a debt, or is otherwise subject to a civil suit. 10 East 395, the King vs. Woburn.

We are, bn the whole, inclined to think, that the better opinion is, that a witness may, in such a case, be compelled to testify, and that the declarations of Enoch Ela could not, on that ground, be admitted as evidence.

The authorities, to which the demandant’s counsel have referred us, do not app’y. The case of Tyler vs. Ulmer, (12 Mass. Rep, 163,) was an action against a sheriff for the default of his deputy ; and there the confessions of the deputy were held to be evidence against the sheriff. It is well settled, that a real party to a suit cannot be compelled to testify, although his name does not appear upon the record. The King vs. Woburn, 10 East 395.—Phill Ev. 60.

It is therefore held, that the admissions of a party to a suit, against his interest, are evidence in favour of the other side, whether made by the real party on record, or by a nominal party, who sues for the benefit of another, or by the party, who is really interested in the suit, though not named on the record. Phill. Ev. 72—11 East 578, the King vs. Hardwick.

A suit against a sheriff, for the default of his deputy, is in reality a suit against the deputy. So in the case of Wood vs. Braddick, (1 Taunton 104,) it was decided, that an admission made by one of two partners, after the dissolution of the partnership, concerning joint contracts, that took place during the partnership, was competent evidence to charge the other partner. The reason of this decision was, that as to. contracts, made while partners, the partnership still continued : and the partner, who made the admission, though not nominally, was in reality a party to the suit.

We are, on the whole, of opinion,, that the declarations of JE. Ela were improperly admitted as evidence, and that there must be

«3 new trial granted.