
    Simeon Bean versus Stephen Bean.
    An action lies against one who fraudulently induced the plaintiff to enter into a general copartnership with one who was the insolvent debtor of the defendant, and afterwards induced the copartners to assume all the debts due him from his said insolvent debtor, and then seized the plaintiff’s property in satisfaction of the said debts; — and in such action the insolvent debtor is a competent witness for the plaintiff.
    * The plaintiff declares in case, for that on, &c., at, &c., [*20] one- Joshua Bean was concerned in trade and merchandise, and then was, and for a long time before had been, in apparent good credit, and the defendant had become the indorser of the said Joshua’s promissory notes for large sums of money, and had received large sums of money as usury for such indorsements ; and the said Joshua was indebted to the defendant and to other persons, to the amount of $ 10,000 more than all his estate and demands amounted to; all which was well known to the defendant, but of all which the plaintiff was wholly ignorant; nevertheless, the defendant, deceitfully intending to defraud the plaintiff, and to expose him to ruin, and the better to enable himself to secure his said demands against the said Joshua, and to hold the plaintiff responsible therefor, and to give false credit to the said Joshua, deceitfully and fraudulently persuaded the plaintiff, and enticed the said Joshua to persuade the plaintiff, to enter into a general copartnership in trade with the said Joshua; and, as an inducement thereto, assured the plaintiff, and caused the said Joshua to assure him, that the circumstances of the said Joshua in trade were good and prosperous, and that the defendant would support with his moneys and credit the said copartnership when formed ; and that the plaintiff should realize great profit from such connexion by the defendant’s aid and support; and the plaintiff, relying on the said false assurances, and ignorant of the embarrassed and ruinous state of the affairs of the said Joshua, entered into a general copartnership with him, and transacted business with him, under the firm of J. fy S. Bean, for nearly twelve months. And the plaintiff avers, that, in consequence of the said copartnership, and during the continuance thereof, when and as often as any and all the promissory notes given by said Joshua to the defendant, and all whereon the defendant was responsible as indorser, and which were given by said Joshua before said copartnership was formed, severally became due and payable, the defendant procured the said Joshua to renew the same under [ *21 ] the said * copartnership name, whereby the plaintiff became involved in all the said Joshua,s debts due before the said copartnership was formed ; and afterwards, the defendant caused all the goods and merchandise of the plaintiff and the said Joshua to be attached, and took to himself all the debts due to the said copartnership, whereby the plaintiff and the said Joshua were wholly broken up, and became insolvent to a large amount.
    The cause came on for trial upon the general issue before the Chief Justice, at the last November term in this county; when the said Joshua was offered by the plaintiff to prove the facts alleged in the declaration. It was objected, that, according to the allegations, he was a conspirator with the defendant to defraud the plaintiff; and that, admitting the allegations to be true, he was interested to fix the charge upon the defendant, in order to discharge himself, there being no contribution in a case of this nature. There being no other evidence offered, he was rejected, and a nonsuit entered ; and, if he ought to have been admitted, a new trial was to be granted ; unless the Court should be of opinion that the facts alleged would not maintain an action ; which question was referred to the whole Court at the suggestion of the judge who sat in the trial, with the consent of the parties ; the plaintiff agreeing that the nonsuit should remain, if the witness was properly rejected, or if the action would not lie ; and, if, in the opinion of the Court, the action would lie, and the witness ought to have been admitted, a new trial was to be granted.
    
      Morton (Attorney-General) and Fales, for the plaintiff.
    
      Peabody, for the defendant.
   Per Curiam.

We cannot doubt that the facts alleged in the declaration, if well proved, will be a sufficient foundation of an action for damages. They exhibit a case of complicated fraud and deceit; and, if two persons were concerned, would constitute a conspiracy, for which the actors might be indicted and punished. It is at least equal to the cases of recommendation of an insolvent person as solvent, whereby a person has been induced to trust him with goods ; and * it is well known that such a recom- [ * 22 ] mendation, proved to be false, will be a good ground of action for damages.

We think, also, that the witness offered was competent; although it is difficult to believe that the jury would give much credit to him, if his participation in the fraud, as stated in the declaration, should turn out to be true.

He is not interested in the event of the suit ; for no damages will be given to him, nor will he have a right to share in the damages which may be awarded to the plaintiff. If he should hereafter bring a suit himself, the verdict in this action will not be evidence in his favor. Nor will the judgment recovered in this action necessarily be a bar to any action which the plaintiff may hereafter bring against the witness; although what is recovered in this case may possibly go to mitigate the damages in such future action.

But we do not think this contingent and uncertain interest sufficient to exclude him ; especially as, before he is sworn, he may be released by the plaintiff from any right of action on this account. This would probably have been offered at the trial, had it not been supposed that the objection, taken to his competency, was, his participation in the alleged act which is the subject of the action.

As to the allegation in the declaration, that the witness was enticed by the defendant to aid in the fraud practised upon the plaintiff, this, if true, does not destroy his competency to testify. The witness is not legally infamous, and, if particeps fraudis, we do not see why he may not be sworn in a civil action, as well as particeps criminis in a public prosecution, which is the constant practice.

Let the nonsuit be set aside, and a new trial granted., 
      
       On the new trial J. Bean was a witness ; but the defendant obtained a verdict; ut audivi.
      
     
      
      
         Patten vs. Gurney et al., 17 Mass Rep. 182. A co-trespasser may be a witness for the plaintiíf, B. N P. 286. — Chapman vs Greaves, 2 Campb. 333, (n.) — Morris vs. Daubigny, 5 Moore, 319. — Berkley vs Dimery, 10 B. & Cr. 113 —Blackett vs. Weir, 5 B & C. 387. — Hall vs. Curson, 9 B. & C. 647. — But a release to one will discharge the other. Bacon, Release (G).—2 Phill. Ev 329. And a recovery against one is a bal to an action against the other. 2 Phill Evid. 199.
     