
    Gore vs Ross and Pettit.
    Debt.
    Error to the Franklin Circuit.
    
      Case 97.
    
      Non est factum. New trial.
    
    
      April 28.
    blank note aa 'avowed and sinfnlibfinJhilpriScip^i l0fr^r0^ andno other perl lfgeef^whhout ^eoMenrof tfo surety, Fhave6noiic&of $!a6of b8
   Chief Justice Robektsoh

delivered the Opinion of the Court.

All the pleas in this case are substantially good. But had any of them been defective, they were cured by the valid and substantial issues formed and tried thereon.

And if, as positively and explicitly testified on the trial, Ross signed the blank note for the avowed and single purpose of enabling his principal to borrow'money from Sudduth, and make the note payable to him and no other person, and the obligee, Pettit, to whom -it was afterwards made payable, without Ross’ knowledge or consent, and the assignee, Gore, Rad notice of that purpose, and limitation, there can be no doubt that the plea of non est factum by Ross, was conclusively sustained; for certainly he might, for good cause, have been willing to be a surety to one creditor, when he vuould not have consented to be so bound to another, in whose justice and forbearance he had not as much confidence : Conway vs The Bank of the United States, (6 J. J. Marshall.)

Nor can it be doubted that the witness, Pettit, was competent, for being both obligee and assignor, he was testifying against his apparent legal interest, in giving evidence against Ross’ obligation as surety.

Though a party maybe deceived, yet unless it be* by his adversary, he is without remedy.

Hewitt, Morehead, Reed for plaintiff; Cates Lindsey for defendants.

And, although it is evident that Gore has been basely deceived and seduced out of his money advanced to Pet-tit, the principal in the note, yet the testimony,'if accredited, proves that he was deluded by the two Pettits, and not by Ross.

And. now, therefore, although the judgment may be a very hard one, we cannot judicially decide that the jury and Circuit Judge, who saw, and heard, and probably knew the witness, Pettit, ought not to have accredited his testimony, unimpeached as he was by any other witness. And consequently, we cannot set aside the verdict for want of evidence to-sustain it.

The judgment, in bar of the action against Ross, must, therefore, be affirmed.  