Legal Opinion

Cook v. Spaulding

New York Supreme Court

Decided July 15, 1841Published

Assumpsit, tried before Dayton, C. Judge, at the Chautauqua circuit, in July, 1840. The action was on a promissory note made by the defendants, for $781,17, dated August 8, 1838, and payable to the plaintiffs on demand. The defendants called Hiram Gardner as a witness, and offered to prove by him a state of facts which would constitute a good defence to the action.

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Assumpsit, tried before Dayton, C. Judge, at the Chautauqua circuit, in July, 1840. The action was on a promissory note made by the defendants, for $781,17, dated August 8, 1838, and payable to the plaintiffs on demand. The defendants called Hiram Gardner as a witness, and offered to prove by him a state of facts which would constitute a good defence to the action. The note in question was owned by the Niagara Suspension Bridge Bank, “ á partnership or unincorporated banking association,” and the suit was brought in the names of the plaintiffs for the benefit of the bank. Gardner was, and…

1Opinion of the Court

By the Court, Bronsoñ, J.

This question was decided in Mauran v. Lamb, (7 Cowen, 174.) It was there held, that the real plaintiff, though not a party to the record, could not be required, without his consent, to give evidence for the defendant. In The People v. Irving, (1 Wend. 20,) it was again held, that a party in interest cannot be compelled to testify without his consent. The same doctrine was also recognized in Jackson v. Myers, (11 Wend. 537.) The cases of Appleton v. Boyd, (7 Mass. Rep. 131,) and White v. Everest, (1 Vermont Rep. 181, 2,) are to the same effect.

It can make no…

2Cases cited2 opinions

  1. Appleton v. BoydMassachusetts Supreme Judicial Court · 1810
  2. People v. IrvingNew York Supreme Court · 1828

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