Jones v. Post

*Mr. Ch. J. Murray delivered the opinion of the [15] Court.

Mr. J. Heydeneeldt concurred. This appeal is prosecuted from a judgment of nonsuit. On the trial of the cause, which was an action upon a bond, [16]conditioned for tbe performance of a contract, Wood, tbe original obligee, was admitted as a witness, and testified that he bad assigned bis interest in said bond, and all tbe rights appertaining thereto, to tbe present plaintiff, to secure an indebtedness from him to tbe plaintiffs, and that any judgment which tbe plaintiff might obtain would go to satisfy such indebtedness, and tbe overplus, if any, would properly belong to bis other creditors or himself. The Court afterwards struck out tbe testimony of Wood, and entered a judgment of nonsuit.

We have repeatedly given a judicial construction to tbe 892d-3d section of tbe Practice Act, and, according to tbe rule heretofore laid down, tbe testimony was properly excluded, as it was shown that tbe witness would be directly benefited by it, in having whatever judgment was recovered applied to tbe payment of bis liabilities.

Striking out bis testimony, there is no evidence to establish tbe fact that Thompson agreed to deliver tbe sheep at the time they were demanded, or that this portion of tbe contract was violated in any manner by Thompson.

This disposes of tbe case, and renders it unnecessary for us to determine whether tbe undertaking executed by tbe defendants is within tbe Statute of Frauds or not.

Judgment affirmed.