Bunnell v. Butler

Waite, J.

Upon the trial of this case, in the court below, the only defence made, was a right to set off against the plaintiff’s demand, a balance claimed to be due upon a certain promissory note.

This defence was resisted upon two grounds : in the first place, that the note was void by reason of duress, and secondly, that the balance upon it remaining unpaid, was *68 without consideration, and consequently, that there was no indebtedness upon it, from the plaintiff to the defendant.

The defendant denied that there had been any diwess, or that there was any want of consideration, and claimed that, if the note had originally been executed under duress, it had been subsequently confirmed, by several acts of the defendant.

We deem it entirely unnecessary to go into an enquiry, respecting the claims of the parties, upon the matters of duress and confirmation, as we are satisfied that, aside from these considerations, the defendant is not entitled to a new trial.

It was admitted by the parties, that the only consideration for the note, was certain items of indebtedness, upon which, as the defendant claimed, the plaintiff was indebted to him. The plaintiff denied any indebtedness, upon two of them, amounting together, to a sum equal to the balance remaining unpaid upon the note.

Now it is evident, that, if this claim of the plaintiff’ was well founded, there was no indebtedness on his part, and nothing to set off against his demand, and it was perfectly immaterial, whether the note was originally procured by duress, or had subsequently been confirmed by the plaintiff.

It was competent for the plaintiff to show a want of consideration for the note, and if he succeeded in establishing that fact, then no recovery could be had against him, upon it. Raymond v. Selleck, 10 Conn. R., 482. ,

On the other hand, if the note were given for a preexisting debt, that indebtedness would remain unaffected by the subsequent execution of, the note, whether it was obtained by duress or not, or whether there had or had not been any confirmation of the note. And if the defendant, by reason of duress, were precluded from setting off the note, he was not precluded from setting off the original debt, if there were any, which entered into the consideration of the note. Bill v. Porter, &c., 9 Conn. R., 23. Fitch v. Bogue, &c., 19 Conn. R., 291.

*69 Now the question, «whether the plaintiff was indebted to the defendant, in the manner claimed by him, was distinctly submitted to the jury, and found in favor of the plaintiff, and 'no complaint is made, that the question was not properly made or fairly -submitted. If that question has been correctly determined, then it is immaterial, whether the defendant attempted to set off the note or the original indebtedness. In neither case can his defence prevail.

2. In the next place, it is claimed that the court erred, in limiting the number of impeaching witnesses. This, however, was a matter within the discretion of the court. It would be absurd to hold, that, upon an enquiry of that sort, depending, in a great measure, upon the opinion of witnesses, a party has the right to examine as many as he pleases, and that the court and jury are bound to sit and hear them, without any power to interfere.

There must necessarily be a limit to such enquiries, and it is for the court to prescribe it. "We are not, however, to be understood, as saying, that in all cases, the number of impeaching witnesses is to be the same, as that allowed in the present case. Ordinarily that number ought to be deemed sufficient to enable the triers to pass upon the credit of the principal witness. Much, however, will depend upon the circumstances of the case, and the importance of his testimony. If it should appear, that the case would probably turn upon the degree of credit to be given to it, a more extended enquiry, as to his character for truth, might properly be allowed.

On the other hand, if his testimony should be unimportant, having little or no effect upon the merits of the case, but little time ought to be consumed in such an enquiry.

Nor do we mean to say that, if it should be made to appear that, in consequence of such an order, a party has manifestly suffered by it, this court will not grant a new trial. But, in the present case, we discover nothing indicating that the discretion of the court was not fairly and properly exercised.

*70 For these reasons, we do not advise- a new trial.

In this opinion the other judges concurred, except Storrs, J., who tried the cause in the court below, and was disqualified.

New trial not to be granted.