Hodsdon v. Wilkins

| Me. | Jun 15, 1830

Weston J.

No objection has been urged in argument, by the counsel for the plaintiff, to the instructions of the judge who presided at the trial, on the question of damages. The jury were directed to allow to the plaintiff such damages only as he had sustained, by the breach of official duty complained of; unless the neglect of the deputy was wilful, with a view to injure the plaintiff; in which case, they were to allow him the whole amount of his execution. We perceive nothing in these instructions, tending to impair the plaintiff’s legal rights.

Without going into the consideration, how far the plaintiff’s counsel, having examined the witness as upon the voir dire, with a view to show him incompetent on the ground of interest, and he having denied and disclaimed all interest, is precluded from resorting- to, or relying upon, other modes of proving it, and taking the admissions and declarations of the deputy to have been true; we are of opinion that they do not establish any legal interest in .the witness. There was no privity between him and the plaintiff. It does not appear that he had any right to direct or control the proceedings of the officer. The latter says the witness told him not to do that, which his precept and his duty to the plaintiff required, and he would save him harmless. This then was a promise, if made, founded on an illegal consideration; namely the violation of official duty on the part of the officer. It is void in law; and no action can be sustained upon it against the witness, who must therefore, notwithstanding such promise, be regarded as competent and admissible.

Judgment on the verdict.