| Pa. | Oct 15, 1798
The day alleged in the declaration being variant from the day on which the promise was made, is no ground for ordering a non-suit. This appears very fully from the cases cited by the plaintiff’s counsel. If the jury should find a special^ verdict in the terms of the declaration, (1 Stra. 22, and the cases were cited,) but with the alteration of the day, there could be no difficulty as to the court’s rendering judgment thereon for the plaintiff. And even in criminal cases, it is a settled rule, that the day laid in the indictment is not material upon evidence. 2 Hawk. 434, cap. 46, § 32.
The remaining objections rest on facts, which it is not the province of the court to ascertain. If the plaintiff contemplated an increase of his money by the spoils of others, the original transaction was immoral, and he could not recover his debt from Savin, and consequently the defendant could not be substituted in his place.But the effects of credulity are almost incalculable. Even Lord Hale believed there were witches in the last century! How many ingenious and learned men have been ruined by their researches for the philosopher’s stone, in order to transmute other metals into gold ? How great was the general frenzy for South-sea stock in Eng-' land, in the present century, when a share which cost 100?. was sold for 800?. and upwards ? Have we not experienced events amongst ourselves within these few years past, as to scrip, now almost incredible? If therefore, the jury should be of opinion, that such was the plaintiff’s infatuation or ignorance at the time, that he believed his money might be doubled without fraud, and that he and Savin were not in fa/ri delicto, there would be no ground of defence by the latter against hi>m.
So if the jury give credit to the witness, who swore that the defendant’s promise,was grounded on the plaintiff’s promise, the court will be supported by the evidence; and if they are further satisfied, that the view of the plaintiff in pursuing the impostor, was merely to get back his money, and that he entertained no idea of instituting a criminal prosecution against him, or of stopping it afterwards, the last exception would then also be obviated: otherwise not,, in both instances.
These questions however the jury alone are competent to determine. Ex facto oritur jus.
In the course of the trial, it was proposed by the defendant’s counsel, to ask one of the plaintiff’s witnesses, whether he had not been committed to the gaol of Cumberland county as an ac
But the court thought there was impropriety in the question. The credit of a witness is only to be impeached by his general character, and not by charges of particular offences of which he has not been convicted. In the case relied on, the question was asked not of a witness, but of one who offered himself as bail for another indicted of grand larceny, whether he had not stood in the pillory for perjury; and on his answering in the affirmative, he was rejected.
Verdict jipo quer. for 149/. 17s. Qd. damages.
A motion was afterwards made for a new trial, and a rule to show cause obtained; but the argument coming on in December term 1799, the defendant’s counsel discharged the rule.