Lee v. Pilgrim ( 1850 )

The opinion of the court was delivered, by

Rogers, J.

This is an action on the case for deceit, and not as was first erroneously supposed, an action on a guaranty. The witness therefore has no interest in the event of the suit, as is ruled in Boyd’s Ex’rs. v. Brown, 6 Barr 310. It is there held, that in an action on the case for false and fraudulent representations, the party to whom credit is given is a competent' witness. There he was offered by the plaintiff; here by the defendant, in which only do they differ. But this cannot alter the principle, for the same reason applies to both, namely, the witness has no interest in the suit, nor -will the verdict be evidence in any suit to which the witness is a party. The debt remains as before the recovery. Indeed, the point of interest was abandoned on the argument, and the exception was attempted to be rested on some supposed policy, not clearly explained, and which I cannot comprehend. It is said the witness was a party to the fraud; but to exclude him for that reason, it will be necessary for the court to assume that there was fraud in the matter in issue, and that the witness was a party to it. But this the court is not bound to do, at least without some evidence. Besides, it is well settled that when one of two or more tort feasors is sued, those not parties to the action are competent witnesses.

Judgment affirmed.