1804.
In the Court below,
A person interested in the question on trial, but not in the event of the suit, may be a witness.
A special plea was given to part of this declaration, and the general issue to the remainder. The jury found a verdict for the defendants, upon both issues.
On the trial, Elias Glover, one of the real purchasers, Was offered by the plaintiff, as a witness, he having commenced a suit, and recovered judgment against part of the defendants for the same fraud, as stated in the present declaration, but upon different pleadings. The defendants objected to his evidence, on the ground, that he was interested in the question ; for should they
Elias Glover, a purchaser of some of this land, who had brought a suit and recovered, and, consequent ,wac no longer interested, was excluded from testifying. And the reason assigned was, the other party might bring a petition for a new trial. So long as the case was pending there might have existed an interest ; but when it was decided, there could be none. It is always in the power of a party to say, that he may, and shall, bring suits against a witness, whom he wishes to exclude. But k would be no ground for a new trial, in the case--of Glover, that the defendants had succeeded in this case,
But, admitting that Glover was interested ; aiiü h ought not to have been excluded. - The Superior Court have, indeed, determined, that interest in the question shall prevent a person from testifying. But that point has never been determined by this Court. The question was much agitated in England, and contradictory dec:-, ions were had ; but it was finally nettled, in the case of Bent v. Baker,
Gloveds action has been tried; another similar to it, depending upon the same facts, is now on trial. Had not Gloveds case been tried, he could not have been a witness, though he had brought no action.
It is said, that an interest in the question will not exclude a witness in Great-Britain. The rule there is, if the witness is to be ultimately benefited by the decision, he is not admissible ; or if he claims in the same right as the party on trial, he cannot be admitted,
But, it is said, Glover has obtained a judgment. Suppose three persons claim to have been defrauded, and bring three separate actions, and have no evidence but the testimony of each other. The first case is lost, because there is no evidence to support it, Then, upon the principles contended for, that man becomes n witness for the others ; and when they have obtained their causes, by his testimony, the first may, upon a petition for a new trial, support his case, by their testimony. The Court will never say, that one claiming on account of a fraud done him, shall recover, and another shall not. Such inconsistency would disgrace a court of justice. The Court would, therefore, grant a new trial; and ± ii-
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