Leiper v. Peirce

6 Watts & Serg. 555

Opinion

Per Curiam.

The point in. this case came up for decision before the-report of Post v. Avery was published; else it is to be presumed that it would have been ruled differently. The principle of that case is that a colourable assignment to make the legal plaintiff a witness, shall not devest his interest; and that every assignment is to be deemed colourable till the contrary be made to appear. Here the cause of action was an account stated by the plaintiff himself, without a voucher or scrap of paper to support it; and if it is not to be recovered by force of his own testimony, it is not to be recovered at all. Why did he sell it for a consideration which the parties did not choose to name, but to turn his testimony to account? Suppose even that the assignee had given value equal to the nominal amount; what motive could he have to burthen himself with an unprofitable lawsuit, but to serve the purpose of the assignor? Suppose still further that he had shared the claim ; it must have been with an understanding that the testimony of the assignor would carry it through, for it would be worthless without it. Every case of the sort comes before a court under a violent presumption of collusion; and how is it to be rebutted ? That is a question which it is hard to answer. Perhaps there is not a case in a hundred that admits of explanation. It is enough for the case before us, that there was no attempt to explain; and the testimony ought consequently to have been rejected.

Judgment reversed, and a venire de novo awarded.