Dodge v. Burdell

13 Conn. 169 | Conn. | 1839

Huntington, J.

The general rule is certainly well established, that a witness is presumed to have no interest in the event of the suit; and therefore, if an objection be made to his testimony, on the ground of such interest, it must be shown to exist, by the party against whom he is called, by competent proof. This motion for a new trial seeks to reverse this reasonable rule, and to substitute the converse of it; — that the law \ . , . , . , ’ . . . presumes an interest in the witness which renders him mcom-petent, until rebutted by proof. In the case before us, the only evidence of a supposed interest which was offered, consisted of a paper signed by the witness, dated May 11, 1833, and a letter addressed by him to the plaintiff, without date, but written subsequent to the first and referring to it. The letter contains no promise to pay the note in suit, or any note executed by the defendant to the plaintiff. The writing dated May 11, 1833, is substantially an agreement to discharge such notes payable to Doctor J. Dodge, or order, as might thereafter “ come against” the defendant, except one note held by the witness. It is claimed, that this writing imposed a legal obligation oh the witness to pay the note in suit; and therefore, that he was interested in defeating a recovery upon it. We give no opinion upon the question whether there was sufficient evidence of a delivery of either of the instruments, to entitle the plaintiff to avail himself of them; for it is quite clear, that there was no proof of any consideration for the promise, derived either from the instruments themselves, or from any facts spread upon the motion. So far as we can perceive, the promise was a nudum pactum, unless we are to presume, that every promise is made upon sufficient consideration, and throw the burden of disproving it, on the promiser. This would be introducing a new class of legal presumptions, which we should not readily sanction, without at least some precedents to justify us. We have not found, nor been referred to any. The witness was not legally bound to fulfil an engagement unsupported by any consideration ; and therefore, had no interest in the event of the suit. The exception to the ruling of the judge at the circuit, is sustained neither by principle nor authority, but opposed to both. The motion for a new trial is denied.

The other Judges concurred in this opinion, except Sherman, J., who was not present.

New trial not to be granted.