21 Me. 494 | Me. | 1842
The opinion of the Court was drawn up by
— The witness, Bailey, the maker of the note declared upon, for whose accommodation the defendant had indorsed it, without a release from the defendant, was an incompetent witness for him. Pierce v. Butler, 14 Mass. R. 303 ; Greenl. Ev. § 401; Hubbly v. Brown, 16 Johns. R. 70. The question then, is, was Bailey duly released, and was there competent proof of it. No release was offered, w'ith proof of its execution, as is ordinarily requisite. Cocking v. Jarrard, 1 Camp. 37; Hobart v. Bartlett, 17 Maine R. 429.
But it is contended, that as the plaintiff, when Bailey’s deposition was taken, inquired of him whether the defendant had given him a receipt or discharge in full, it was tantamount to an interrogation as to whether he was interested in the event of the suit or not; and being so, that it comes within the decision in King v. Upton, 4 Greenl. 387. The Court in that case held, that, as the witness, in his deposition, was interrogated on oath as to his interest in the event of the suit, and denied having any such interest, it was an election of the adversé party to ascertain the interest of the witness from his own testimony; and his denying that he had any such interest rendered him competent. The decision in' that case was unprecedented, so far as respects any adjudged case in the Reports ; but may, nevertheless, be considered as well supported by analogy and sound logic. But care must be taken not to press the decision beyond its legitimate bounds. It would seem that the interrogatory as to interest, should be direct, and not by way of inference. The Court are to decide whether the witness is qualified to testify or not. The evidence tending to show that he is or is not so, should be distinct. If the witness on the stand, sworn in chief, and having an apparent interest, were asked by the party objecting to his being a witness, if he had a release from the party producing him, and he
Verdict set aside and a new trial granted.