
    Samuel Plumb versus Seth T. Whiting.
    One cannot be sworn as a witness, who would testify under an impression that he is interested in the event of the suit, although, in fact, he has no legal interest in such suit
    This was an action of assumpsit, for four months and twenty-seven days’ labor of the plaintiff’s son. On the general issue pleaded, the cause was tried before Thatcher, J., from whose report of the trial it appears that the defendant did not dispute the performance of the service, but insisted that it was done under an express hiring for a year at 72 dollars, and that the son left his service against his will, within the year. This contract was denied by the plaintiff. On the trial, the plaintiff, to maintain the issue on his part, produced a witness, who swore that he was present at the making of the contract, and that the parties agreed that the son should work for the defendant a year at 72 dollars, or 6 dollars a month, if both parties liked, and that the son should haw one half of the money. The son was then called by the plaintiff. The defendant objected against his being sworn, as interested ; but he was admitted, and testified to the same facts, to which the preceding witness had sworn.
    The defendant produced some witnesses to contradict this testimony ; and the judge left it to the jury to settle the nature of the contract between the plaintiff and the defendant, and instructed them that, if they were satisfied that the plaintiff, at the time of the agreement, understood that his son might leave the service of the defendant before the expiration of the year, and demand a compensation pro rata, they ought to find for the plaintiff, and assess his damages accordingly ; but if they believed that the parties understood the contract otherwise, then they ought to find a verdict that the defendant never promised.
    [ * 519 ] * The jury found a verdict for the plaintiff, and the defendant moved for a new trial, because the son, as being interested in the event of the suit, was improperly admitted as a witness.
   • This motion was briefly spoken to by T. Williams in support of it, and Hastings on the other side. The action was continued nisi for advisement, and at the March term succeeding in Suffolk, the opinion of the Court was delivered by

Parsons, C. J.

If the plaintiff’s son was immediately and directly interested in the event of the suit, it is very clear that he ought to have been rejected ; and if he was to have one moiety of his earnings, he was directly interested in the event of the suit to recover them. Now, the witness produced by the plaintiff swore that by the bargain the plaintiff had agreed that the son should have half his wages, and this testimony was not contradicted ; nor can the credit of this witness be impeached by the plaintiff, who produced him. The plaintiff has himself proved the interest of his son, whom he offers as a witness; and the son, being thus proved to be interested, ought not to have been admitted as a witness for the plaintiff.

For the plaintiff, it has been argued that the engagement of the father to let his minor son have half his wages, is a voluntary promise resulting from the father’s bounty, and cannot be enforced at law; and that an interest resulting from a voluntary promise not obligatory in law will not disqualify a witness.

If a witness would testify under the impression of an interest, which he honestly believes that he has in the event of the suit, he cannot be sworn; for the effect on his mind must be the same, whether his interest arises from a legal contract, or from a gratuitous promise, on which he confidently relies, And in this case it does not lie with the plaintiff to say that the witness he produced does not confide in the promise which the plaintiff himself has made to him.

The verdict must he set aside, and a new trial granted. 
      
      
         [The contrary is now the established law. 1 Phillips’s Ev. 128. — Albany vs. Hughes, 17 Wend. 94. — Stall vs. Catskill Bank, 18 Wend. 466. — Smith vs. Downs, 6 Conn. 371. — Long vs. Baillie, 4 S. & R. 222. — Dellone vs. Rehmer, 4 Watts, 9.— Stimmell vs. Underwood, 3 Gill. J. 282. — Union Bank vs. Knapp, 3 Pick. 96. — Ed.]
     