Ford v. Ford

34 Mass. 418 | Mass. | 1835

Putnam J.

afterward drew up the opinion of the Court. We think that all objection made against the competency of Albert Ford, as a witness, was effectually removed. His interest was supposed to arise from his being one of the heirs of the plaintiff’s intestate. But he has, for a valuable consideration expressed, assigned to the plaintiff all the right he might have from a recovery by the plaintiff in this suit, and so is not interested in the amount to be recovered in this action.

But then it was contended, that as the plaintiff may fail in his suit, he may charge the estate for the costs and charges which may arise in the prosecution of the same, and so the distributive share of the witness in the estate may De, in that event, lessened ; and therefore that his interest still is, that the plaintiff should prevail.

This objection is obviated by the undertaking of the plaintiff made in writing and delivered to the witness, in virtue of which the plaintiff would be precluded from making any such charge against the estate. And this paper would enable the witness to prevent the allowance of any such charge by the Probate Court.

The witness is not personally liable ; for it does not appear, that the suit has been commenced or is carried on by his procurement. So it seems to us, that in no case will the witness gain nr lose by the event of this suit. He was a competent witness.

But it has been contended, that the court erred in instructing the jury, that the addition of the name of Hardin Ford, under the name of David Ford, a subscribing witness, was not a material alteration of the note, if the jury believed that David Ford subscribed his name thereto. The jury have affirmed that fact by their verdict for the plaintiff. We are to take it to have been proved, that the note was duly witnessed by David Ford, and that the jury found, that James Ford signed the note as a promisor.

Then the question is, whether the putting the name of another or second subscribing witness, is a material alteration of a note in a case where there was the name of one subscribing witness before, who had attested the note as such. And we think it was not a material alteration. It was not'suggested, that David Ford the promisee, now deceased, made the addition, nor that the note was not in the state in which it now is, when it was delivered to and accepted by him. And no fraud was suggested to have been practised by him.

If there had not been a subscribing witness, the note would have been barred in the course of time by the statute of limitations. The adding the name of a suuscribing witness without the consent of the maker of the note, would essentially have altered the terms of the contract. It would have taken it out of the operation of the statute of limitations, against the consent and probable intent of the maker. That would have been a material alteration. And accordingly in Homer v. Wallis, J1 Mass. R. 309, it was held, that the procuring a witness not present at the making of a promissory note, afterwards to put his name thereto as a witness, was a material alteration of the note. But the note in the case at bar was not at all affected by the putting the name of a second subscribing witness. One would be as good as two or twenty. The instruction was correct.

But it has been contended, that the defendant had a right to use the depositions procured and filed by the plaintiff, which the plaintiff did not choose to read himself. This matter is settled by the 10th of the Regulas Generales, 16 Mass. R. 373 “ But the party producing a deposition, may, if he see fit, withdraw it during the same term in which it is originally filed ; in which case it shall not be used by either party.” It can make no difference that a number of depositions are tied together. The party may well exercise his discretion as to using one or more of them, as if they were severally authenticated.

On the whole, our opinion is, that the judgment should be rendered for the plaintiff, according to the verdict