JUDGES: Mr. Ch. J. Murray delivered the opinion of the Court. Mr. J. Heydenfeldt concurred.
OPINION
MURRAY, Judge
This appeal is prosecuted from a judgment of nonsuit. On the trial of the cause, which was an action upon a bond, conditioned for the performance of a contract, Wood, the original obligee, was admitted as a witness, and testified that he had assigned his interest in said bond, and all the rights appertaining thereto, to the present plaintiff, to secure an indebtedness from him to the plaintiffs, and that any judgment which the plaintiff might obtain would go to satisfy such indebtedness, and the overplus, if any, would properly belong to his other creditors or himself. The Court afterwards struck out the testimony of Wood, and entered a judgment of nonsuit.
We have repeatedly given a judicial construction to the 392d-3d section of the Practice Act, and, according to the rule heretofore laid down, the testimony was properly excluded, as it was shown that the witness would be directly benefited by it, in having whatever judgment was recovered applied to the payment of his liabilities.
Striking out his testimony, there is no evidence to establish the fact that Thompson agreed to deliver the sheep at the time they were demanded, or that this portion of the contract was violated in any manner by Thompson.
This disposes of the case, and renders it unnecessary for us to determine whether the undertaking executed by the defendants is within the Statute of Frauds or not.
Judgment affirmed.