Kimball v. Lamson

| Vt. | Feb 15, 1829

The opinion of the Court was pronounced by

Paddock, J.

The first question, presented by this case, arises upon the construction to be given to the nineteenth section of the act defining the powers of Justices of the peace; which is in the following words, to wit, “ that every Justice of the peace shall “ have power to adjourn the trial of any civil action brought be- “ fore him to such future time as may be proper, not exceeding “ three monthswhether it shall be construed to mean solar or lunar months.

The Court are aware, that in all judicial proceedings in England, in the reckoning of time, month or months, if not declared calendar, are to be taken as lunar. But the common law of England has been adopted in this State no further than it is found to be applicable to our local situation and circumstances; and in determining how far our circumstances will admit the adoption of it, we are to consider the habits and customs of our citizens; and we are satisfied, that in the various intercourse between the inhabitants of the State, where a calculation or computation of time is had, the calendar month is invariably used, except in the single instance of school teachers. No case can be found in our statute books where a lunar month is named ; and we cannot, at this late period, say, that the lunar shall succeed the calendar in computing time, being conscious that the latter has been adopted by universal consent, and practiced upon by our Courts from their earliest organization.

As it respects the note executed by David B. Lamson and Nathan Lamson to the plaintiff, Kimball, the objection to its being read in support of the declaration was, that it appeared on the back of the note, there had been an endorsment of one dollar, and afterwards erased; and that the erasure ought to be first explained. In the case of State vs. McLeran, 1st. Aiken, 313, it was held by the Court, that an endorsement on the back constituted no part of the note; and was so decided in Commonwealth vs. Ward, 2 Mas. Rep. 397. If it should be considered better to have had the explanation gone forward of the note, yet it followed immediately after, and forms no sufficient grounds for a new trial. Furthermore, it appears that the dollar endorsed, was for repairing a clock, and that Lamson had previously sued Kimball in an action of book debt, and recovered against him in that action for the same services; and when Kimball produced the note at that trial with the endorsement upon it, Lamson denied his right of so accounting for it. These facts being known to Lamson, he need not have made any further inquiry why the endorsement was put on, and why it was erased : Kimball would be justified in erasing it or not. But in either case, in the assessment of damages, it would be incumbent on him to shew that it ought not to be deducted from the amount due on the face of the note. k

The third exception is abandoned by the defendant.

It is a general rule of law, that one who is a party on the record, cannot be introduced as a witness in the trial of the same action. Bull. N. P. 285. Yet in Wara vs. Haydon & Ventom, 2 Esp. Cases, 552, being a case of trover, we find that after Hay-don was defaulted, he was suffered to testify for Ventom who had pleaded. And in the case of Harrop vs. J. Green & G. Green, 4 Esp. Cases, 198, in ejectment, J. Green suffered judgment to pass against him by default; G. Green pleaded to the action, and the Court suffered him to improve J. Green as a witness. In an action on the case against several defendants for a fraud, one suffered judgment by default, the others took a trial; it was decided that the confessions of the former might be given in evidence to enhance the damages against the others. Bostwick vs. Lewis, 1 Day's Ca. 33. But in Barnard vs. Dawson, 2 Camp. 333, n. Le Blanc, J. rejected one joint trespasser who was not included in the suit, when offered to prove the defendants guilty. But it is doubtful whether the latter case is law; for the general current of decisions is, that a co-trespasser may be made a witness at the election of the plaintiff. And if by mistake a trespasser is joined as defendant, whom the plaintiff intended to have improved asa witness, the Court will on motion permit his name to be eras- ' ed, even after issue joined.

It is to be observed however, that all those cases sound in tort. In assumpsit the only exception to the general rule, which now occurs to me,’is in the single instance of one defendant’s pleading that which goes to his personal discharge, and not to the action of the writ. In such case, the plaintiff may enter a nolle prosequi as to that one, and proceed against the others, as was the case in Hartness and others vs. Thompson and others, 5 John. 160. And though the witness for some purposes may be said to remain a party to the record, yet I see no objection to his being improved by, either plaintiff or defendant. But in the case of Emmet and another vs. Butler and four others, 4 Taunt. 599, three of the defendants pleaded their discharge under the bankrupt act; and the question was, whether the other two had continued partners up to the time of the contract. The plaintiffs had a right to enter a nolle, prosequi as to the three, and improve them as witnesses against the two; and by a parity of reasoning, and to preserve a consistency in the law in giving to both parties equal rights, the Court, at the request of the two, ought to have ordered the plaintiffs to enter a nolle prosequi, or a verdict for the three, that they might be made witnesses for the two, but the application, not being supported by any precedent, was refused. The case of R. Brown vs. W. Brown & Tubb, 4 Taunt. 752, is more directly in point, being an action of assumpsit for money paid. The defendant, W. Brown, suffered judgment by default; Tubb stood trial, and the plaintiff proposed to call W. Brown to shew Tubb’s liability. Bayley, J. held that W. Brown was inadmissible ; and his decision was afterwards confirmed by the whole Court. And I doubt very much whether a case can be found in assumpsit where the one of two defendants, after suffering a default, was improved for or against the other as a witness.

M. Field, for plaintiff. R. M. Field, for defendant.

The next question is, whether infancy can be given in evidence under the general issue ? It is a general rule, that every thing which goes to shew that the plaintiff had no cause of action against the defendant at the time of praying out his writ, may be given in evidence under the general issue. 1 Ch. 469. And though the promise of an infant is voidable, only, nevertheless the practice of giving infancy in evidence under that issue, has been too long established to admit of a doubt as to its being law. And as the testimony in this case was improperly rejected, the judgment of the County Court must be reversed, and

Anew trial granted.