Davison v. Green

1 Aik. 71

Opinion

Royce, J.

delivered the opinion of the Court. The plaintiffs object to the subject matter of the'defence to their action below, and also to the evidence by which the defendant was allowed to support that defence. No valid objection is perceived to exist to the nature of the defence. The transaction is to be considered as an agreement between the defendant and Charles Burt, that the latter should assume the debt of his sister, and pay it in goods from the store, making himself debtor to the firm for the amount. No evidence was offered, nor is any insinuation made, that by this transaction it was intended to defraud the other partners; and the contract was executed in good faith. But the Court consider, that the evidence of Lucinda Stone, and her husband, William Stone, by which the defence was principally supported, was improperly admitted. The interest of these witnesses appears from the mere statement of the case; and there was "no evidence before the auditors to remove that interest, but the testimonj^of the witnesses themselves. This was but the testimony of interested witnesses, and should have been rejected. It is, therefore, the duty of the Court to interfere, and set aside the report and judgment produced by that evidence.