9 Johns. 123 | N.Y. Sup. Ct. | 1812
The only question in this case is, whether David, Thomas was a competent witness, after the execution of the release by him, (as stated in the case,) “ of. all right, title, interest, property, claim and demand to any sum or sums of money which may be recovered in the cause.” This release was objected to at the trial, on the ground, that no subject matter existed between the witness and plaintiff, or otherwise, upon which tibie release could operate. Upon the argument, the objection was urged more against the form than the substance of the release. It ought, however, to be viewed as made at the trial to the substance of the release, for had it related to the mere form of it, that could have been removed at the time; and this seems to be the established rule in such cases. (Doug. 136.) The objection at the trial was, that the nature of the interest was such that it could not be released. Such a kind of interest may, no doubt, exist; (2 Johns. Rep. 176. 8 Johns. Rep. 429.) but this is not of that description. If the witness had any beneficial interest in the subject matter of the suit, this release would extinguish it. It is a forced construction to consider it a release of a future and contingent interest merely. It is a release of all interest or benefit to be derived from that suit, and in this point of view also it is sufficient, for this is the only interest necessary to be extinguished. The question as to the interest of a witness is, whether he is to gain or lose bp the event of the cause. A release technically operates only upon a present interest; but when there is a present right, to take effect in futuro, such a right may be presently released. (Co. Litt. 265. a.) The case before us is one of that description. The interest of the witness was a present subsisting interest, and the reducing it to possession was the only future contingency attending it
Thomas was, therefore, a competent witness, and the motion for a new trial ought to be denied.
Motion denied.