King v. Upton , 4 Me. 387 ( 1826 )

Mellen C. J.

delivered the opinion of the court.

This case presents one question arising on a motion in arrest of judgment; and two arising on a motion for a new trial, founded on the report of the judge.

In support of the first motion, it is contended that the declaration does not disclose a sufficient consideration for the defendant’s promise ; the alleged consideration being only that the plaintiff would “forbear and give further time” to Jeduthun Upton, the maker of the note, “ for the payment of said note” — without naming any particular time for the continuance of such forbearance. The declaration contains an averment that the plaintiff did “ forbear and give further time for the payment of said note from the 2d day of December, 1820,” (being the day on which the defendant’s promise was made) “ to the 15th day oí February, 1822 a few months before the commencement of this action. The authorities on this point have been examined, and they seem not to sustain the motion. In 1 Roll. Abr. 27, pl. 45, the law is laid down in these words. “ So if A. be indebted to B. in 100 pounds, and B. is about to commence a suit for the recovery thereof ; but C.a stranger, comes to him and says, that if he will forbear him, he himself will pay it, this is a good consideration for the promise ; B, averring that he had abstained and fore-bore to sue A. et adhunc, did abstain and forbear ; though no certain time was appointed for the forbearance ; for it seems a perpetual forbearance is intended, the which he hath performed. So if he will foi'bear paululum, temporis, this is good ; plaintiff averring a certain time of forbearance.” See also 1 Com. on Coni. 420. The principle as last laid down is perfectly applicable to the case before us ; and appears to be a decisive authority. The motion in arrest of judgment is therefore overruled.

As to the motion for a new trial, on the ground that the presiding judge excluded direct testimony, which was offered to prove the interest of Joseph King, we are well satisfied it must fail. He had been interrogated on oath by the defendant, and had expressly denied all interest in the event of the suit; and as the defendant had elected to prove the alleged interest of the witness in that manner,by appealing to his knowledge and conscience, though he failed so to prove the interest; he, by making this election, precluded himself from proving it by evidence aliunde. This rule has long been established, and invariably adhered to in case of viva voce testimony ; and there seems to be no sound reason why the same rule should not govern in case of a witness deposing before a magistrate.

As to the objection to the admission of parol proof to shew on what consideration the promise or guaranty of the defendant was founded, we consider the case of Packard v. Richardson 11 Mass. 122, as furnishing a most satisfactory answer. We have often and carefully examined that case, and the able argument of the chief justice, and concur in the principles on which the decision reposes. It is needless for us to go into an argument on the question. We at once refer to it as an authority entitled to high consideration, decisive of the point before us ; and as a clear, learned and convincing investigation of the whole subject. Accordingly there must be

Judgment on the verdict.