Ward v. Haight.

WARD against HAIGHT.

An inquest of office is to inform the conscience of the court; and an inquisition will not be set aside on the ground of the admission of improper evidence; unless it appears that injustice has been done.

RIGGS, for the plaintiff, moved to set aside the inquest as taken in this cause, before the sheriff of New-York, on a writ of inquiry of damages, on the ground that the sheriff had admitted improper evidence on the part of the defendant so as to diminish the damages to which the plaintiff was entitled.

Hopkins, contra.

Per Curiam. An inquest of office is intended to inform the conscience of the court, and they will not interfere, unless it appears that injustice has been done. The plaintiff does not show that his damages were lessened by the admis sion of the evidence; and it is questionable whether it was not proper testimony. Where the inquisition is substantially right, we will not nicely examine the legality of the evidence. A new inquisition would not, probably vary the cause; nor do the ends of justice require our interference.

Motion denied.(a)

(a) See Grah. Prac. 2d ed. 800, 801. Tidd's Prac. Am. ed. 1840, 582, at seq.

Disborough v. Neilson.

[*81] *DISBOROUGH and others against NEILSON and

others.

Where A. agreed to deliver to B. by the 1st of May, from 700 to 1000 barrels of meal, for which B. agreed to pay on delivery, at the rate of six dol. lars per barrel, and A delivered 700 barrels, and also before the day tendered to B. 300 barrels more, to make up the 1000 barrels, which B. refused; it was held that B. was bound to receive and pay for the whole 1000 barrels; the delivery of any quantity between 700 and 1000 barrels, being at the option of A. only, and for his benefit.

A contract may be optional as to one party, and obligatory on the other.

THIS was an action of assumpsit. The parties, on the 22d January, 1801, entered into a written agreement, by which the plaintiffs agreed to deliver to the defendants, from the 15th of March to the 1st of May, then next, from 700 to 1000 barrels of kiln dried Indian meal, in merchantable order, at six dollars per barrel; and the defendants agreed to pay to the plaintiffs two thousand dollars, by the 15th March, if it should be called for, and the remainder of the money on the delivery of the meal. The plaintiffs delivered to the defendants, between the month of February and the 28th April, seven hundred barrels of meal, in good order, which were accepted by the defendants; and, on the same 28th April, tendered to the defendants three hundred barrels more, in good order, to make up the 1000 barrels, but the defendants refused to accept the three hundred barrels, alleging that they were not bound, by the contract, to receive and pay for more than seven hundred barrels.

The only question was, whether the defendants were bound to receive and pay for the three hundred barrels, so tendered by the plaintiffs, to make up 1000 barrels.

Riggs, for the plaintiff.

Troup, contra.

Per Curiam. By the special agreement in this case, the defendants were bound to receive the whole 1000 barrels of

Van Nuys v. Terhune.

It was at the

meal, if tendered, within the time specified. option of the plaintiffs only, to deliver any quantity, from 700 to 1000 barrels, and the stipulation in that respect was for their benefit. It does not follow, that the contract was not mutual. There was a sufficient *considera- [*82] tion on both sides; and a contract may be optional

with one of the parties, in part or in whole, and obligatory on the other. (Doug. 23 1 Term Rep. 132, 133. Cowp. 218. Giles v. Bradley, 2 Johns. Cases, 252.) The plaintiffs are, therefore, entitled to judgment

Judgment for the plaintiffs.(a)

VAN NUYS against TERHUNE.

In an action of trespass quare clausum fregit, the defendant justified under right of freehold; and it was held that a person who had conveyed the premises in question to the plaintiff, with covenants of warranty, was a competent witness to prove the trespass.

The general rule is, that if a witness cannot gain or lose, by the event of a suit, or if the verdict cannot be given in evidence, for or against him, in another suit, the objection goes to his credit and not to his competency. An interest in the question only, does not disqualify a witness, but the objec. tion goes to his credit only.

THIS was an action of trespass quare clausum fregit, and for cutting and carrying away wood, &c. The defendant pleaded the general issue, and justified under a right of freehold. The cause was tried, at the King's circuit, in June, 1801, before Mr. Justice Lewis.

At the trial the brother of the plaintiff was offered as a witness to prove the trespass, but it appearing that he had sold the premises in question to the plaintiff, and, by his deed,

(a) Peck v. Hubbard, 11 Vermont, 612. See supra, vol. 2, p. 256, n. (a) to Giles v. Bradley. See also Smith v. Sanborne, 11 Johnson, 59. Appleton v. Chase, 19 Maine, 79. Small v. Quincy, 4 Greenleaf, 497. Chit. on Cont. Am. ed. 1848, 729, et seq.

Van Nuys v. Terhune.

had covenanted to warrant and defend the premises to the plaintiff, he was objected to, as incompetent, on the ground of interest: but the judge determined that as long as the plaintiff relied on his possession only, to enable him to sustain the action, the warranty given by the witness could not affect his testimony. The witness was accordingly admitted, and a verdict taken for the plaintiff, subject to the opinion of the court, as to the admissibility of the evidence. Hopkins, for the plaintiff.

Riggs, contra.

Per Curiam. Although the title may come in question in this action, and then the witness may be interested in [83] supporting the plaintiff 's title; yet so long as the parties rely on the actual possession only, as in this case, the witness has no interest. His warranty did not extend to indemnify the plaintiff against any trespass which might be committed on the premises. He is not responsible on his covenant, unless the plaintiff has been evicted on an older or better title; for unless it so averred, the eviction may be intended to be by a title derived from the grantee himself. The plea of liberum tenementum did not, therefore, necessarily, affect the interest of the witness. He had not even an interest in the question put, so long as it related to the possession merely.

The rule by which a witness is excluded, on the ground of interest, seem to have fluctuated, at different periods, but on a careful examination of all the authorities, ancient and modern, the general rule will be found to be, that if a witness will not gain or lose by the event of the cause, or if the verdict cannot be given in evidence for or against him, in another suit, the objection goes to his credit only, and not to his competency. Generally, therefore, an interest in the question alone will not disqualify the witness, but the objection goes to his credit only. We de not mean to say but that there may be some technical exceptions to the rule, but the rule, in its general application, is correct, and is the one adopted by the court. We are, therefore, of opinion, that the

Van Nuys v. Terhune.

witness was competent, and that the plaintiff must have judgment.(a)

Judgment for the plaintiff.(b)

(a) [Old note.] See Gilb. Law of Ev. 122, 123. 1 Term Rep. 300. 3 Term Rep. 24, 308. 7 Term Rep. 62, 63, 601-612. 2 Esp. Cases, 488. Peake's Law of Ev. 144, 3d. ed. [A vast body of cases illustrative of the principle of this case, is collected in Messrs. Cowen and Hill's notes, p. 31106. See also 1 Greenleaf's Ev. ed. 1842, p. 434, § 390, et seq. 1 Starkie's Ev. ed. 1843, p. 103, et seq. Gresley's Eq. Ev. ed. 1848, p. 345, et seq.

The Code of Procedure in the State of New York, however, provides that no person offered as a witness, shall be excluded, by reason of his interest in the event of the action. The last section shall not apply to a party to the action, nor to any person for whose immediate benefit it is prosecuted or defended, nor to any assignor of a thing in action, assigned for the purpose of making him a witness. (§§ 351, 352.) The reasons upon which this change in the laws of evidence is made are given at length in the report of the Commissioners on Practice and Pleading p. 246–249.]

(b) The rule was formerly that an interest in the question, put to the witness, disqualified him. (See note to Bent v. Baker, 2 Smith Lead. Cas. Hare & Wallace ed., 39.) Consult also the learned note of Mr. Hare, p. 69. 1 Phill. Ev. Cow. & Hill's ed. 46,) but this position is now entirely exploded. The cases are so numerous that it is unnecessary to cite them. (See Cow. & Hill's notes, p. 81; Phelps v. Winchell, 1 Day, 270; Pettingall v. Brown, 1 Cain. Rep. 171; Baker v. Arnold, id. 376; The People v. Howell, 4 John. Rep. 302; Stewart v. Kip, 5 John. Rep. 256; Fairchild v. Beach, 1 Day, 266; Bulkley v. Storer, 2 Day, 531; Wakely v. Hart, 6 Binn. 316; Farrel v. Perry, 1 Hayw. 2; Porter v. M'Clure, id. 360; State Treasurer v. Nall, Tayl. 5; Dean, ex dem. Beatty, v. — id. 9; Baring v. Reeder, 1 Hen. & Munf. 165, 168; Miles v. O'Hara, 1 Serg. & Rawle, 32, 36. I Greenl. Ev. ed. 1842, p. 434, § 389. 1 Stark. Ev. ed. 1842, p. 103, n. (a,) et seq. U. S. D. tit Witness, I. b. U. S. D. Suppl. tit. Witness, III. See also the authorities cited supra, n. (a)