Hickling v. Fitch

1 Miles 208

Opinion

The &pinion of the Court was delivered by

Pettit, President.

Whether Booth was known to carry on the general business of a broker or not, is of no importance, inasmuch as it is admitted that he made, in his own name, the particular contract upon which the plaintiff’s claim is founded. Had he then a legal, certain and immediate interest in the event of this cause 1 He is prima facie liable to an action by the plaintiff. In such an action, a verdict in this suit against Fitch could be given in evidence by Booth, to show that t he plaintiff had adopted Filch as the real party, and would preclude a recovery against Booth. Booth was then directly interested in the result of this suit. The point is very different from that just decided in this court in the case of Reid ». Geoghehan,

(a) where in an action by the indorsee against the indor-ser of a promissory note, it was held that the drawer might be a witness to prove the handwriting of the indorser. There, notwithstanding a verdict against the indorser, the plaintiff would be at full liberty to proceed against the drawer, until he obtained satisfaction. The very point of the case at. bar was ruled by lord Ellenborongh, at Nisi Prius, in M’Brain v. Fortune, 3 Campb. Rep. 317. His decision was confirmed by all the judges of the court of common pleas in Ripley v. Thompson, 12 Moore 55, 22 Eng. C. L. Rep. 433. Both upon principle and authority then the testimony offered was properly rejected.

Rule discharged.

Ante page 204.