
    Jackson, ex dem. Mapes, against Frost and Haff.
    NEW-YORK,
    May 1810.
    A grandor in k deed whiclf is impeached as fraudulent, on being released by the grantee, from all claims and demands whatsoever on. account of the covenants, &c. is a competent witness to dis« prove, as well as to prove the fraud. The objection goes to his credit, not to his competency.
    THIS was an action of ejectment, for a -farm in i?hieens county.
    At the trial, the plaintiff gave in evidence, the exemplification of a record of a judgment, recovered in this court by C. and W. Thorne, against John Barton and Thomas Carpenter, for 920 dollars, which was signed the 5th February, 1806, but it did not otherwise' appear that the same had been docketed, or at what time. The plaintiff also produced a fieri facias, and a testatum fieri facias on the same judgment, the latter directed to the sheriff of ¡fueens, by virtue of which, the premises in question were sold, at public auction, by the sheriff on the 31st December, 1806, to the lessor of the plaintiff, as the highest bidder, for 400 dollars. The deed of the sheriff to the lessor, was dated the 22d May, 1807. Frost, the tenant, was in possession of the premises at the time the execution was levied, and when the deed was executed. He held under Hafif, as his landlord.
    Two witnesses testified that Barton was the reputed owner of the premises, and lived on the farm for several years, until he removed to New-Tork, about five years since ; and that Frost, after Barton’s removal, held under him.
    The defendants produced, in evidence, a deed, from Barton to Hajf, dated the 6th December, 1805, for the consideration of 4,000 dollars, expressed in the deed, which contained full covenants of warranty, with the usual covenants. This deed was acknowledged the7th December, 1805, ancf recorded in the clerk’s office* of ¡fiieens county, on the 30th day of the same month.
    A person, at the request of Haff, attended at the place of the sheriff’s sale, and before the sale, gave public notice to the sheriff and the persons present, of his claim and title to the premises, by virtue of the deed from Barton, which he showed, and cautioned the bidders not to" purchase.
    It appeared that Barton and Carpenter, were partners in trade, in the city of New-Tork, and stopped payment m May or June, 1805. Barton told a witness, that he would not pay more than one half of any debt; and that he supposed the creditors would endeavour to take his property* but that he knew as much law as any of them, and would put his estate out of his hands, and would pay no debts unless Carpenter paid his half.
    
      A number of witnesses were then examined, on both sides, to impeach the deed, as fraudulent, on the one hand, and to support it on the other; but it is not necessary here to state their testimony, ás the cause before the court, turned wholly on the admissibility of Barton, as a witness, who was offered by the defendants, but being objected to, as incompetent, was rejected by the judge. Before Barton was offered, ZTo^executed a release to him of all claims and demands whatsoever, for or on account of the covenants and warranty contained in the deed, and from all claims and demands whatsoever by him, on account of the premises.
    The judge charged the jury, that although fraud ought to be satisfactorily proved, yet positive proof was not indispensably necessary, but it might be inferred from circumstances ; and in the present case, the evidence produced was, in his opinion, sufficient to warrant the jury jin finding a verdict for the plaintiff. The jury, accordingly,found a verdict for the plaintiff.
    A motion was now made to set aside the verdict, and for a new trial.
    
      P. W. Radcliff and St foñes,
    
    jun. for the defendants, contended, that Barton was a competent witness. To reject the witness, because he is particeps criminis, or concerned in the fraud, is begging the question, and taking it for granted that Haff was guilty of fraud. It is assuming the fraud, to make it a ground for rejecting a witness who is called to show that there is no fraud. They contended that a particeps criminis was a competent witness in any case, and for both parties ; that the objection goes to his credit, and not to his competency. They cited. 1 Gilb. Law of Evidence, by Loft, p. 220. Esp. Dig. 703. 725. Sayer’s Rep. 289. Cowp. 199. Gilb. Law of Ev. 4th ed. 136. Peake’s Law of Ev. 3d ed. 146. 1 Day’s Cases in Error, 22. 1 Perm Rep. 303. 3 
      Tyrig's Mass. Rep. 359. 1 Esp. Cases, 339. 4 Burr. 2255.
    
    
      Wells and C. I. Bogert,
    
    contra, insisted, that though a particeps fraudis may be admitted to prove the fraud, he was incompetent to disprove it. They cited Ambler, 592. 2 Fesey, 629. 2 Atk. 228. 1 Atk. 452.
   Per Curiam.

The interest of Barton having been released before he was offered as a witness, his being implicated in the fraud, went only to his credit, and not to his competency. He was a competent witness to disprove as well as to prove the fraud. On this ground, we think a new trial ought to be granted, with costs to abide the event of the suit.

New trial granted.  