Pratt v. Crocker

The issue in the case was, whether the release was obtained and kept on foot by fraud. It is not doubted, that it was an effectual bar to the suit, unless it was fraudulently obtained ; and it is not denied, that if it was obtained by fraud, that fraud would invalidate it.

It is rendered doubtful, from the evidence, whether Crock-er was sworn or not; but, from the verdict of the jury, under the directions given by the Judge, we must conclude,, that Crocker was not sworn as a witness on the trial of Dean against the plaintiff, and the Judge stated to the jury, that if the release had not been produced and read on the trial between Dean and Pratt, that they should find a verdict for the plaintiff, reserving the question of law, and the jury found for the plaintiff.

On looking into the evidence, it appears fully, that Crdcker represented himself to be a material witness, on the trial of Dean and Pratt, for the defendant, and that he was released, with the intention of being used as a witness.

It does not appear, that his representation that he was a material witness, was false or deceptive ; and it must be considered, that the release was put into Crocker’s hands unconditionally.

I do not perceive any fraud on the part of Crocker, in obtaining the release. It was absolutely delivered to him, *273to be sure, in the expectation that he would be a witness; and it was not his fault that he was not called. The release being under hand and seal, required no proof of a consideration to support it. It seems to me, that the point submitted to the jury was not an essential one; for if the release was fairly obtained, and delivered unconditionally, and the plaintiff’s remedy against Crocker and his sureties, for the act from which he was discharged, was gone for ever, it was not within the issue to inquire whether the release had been produced and read on the trial; for, whether it was so, or not, it did not touch the question of fraud. A new trial must be granted, the costs to abide the event, unless the plaintiff elect to waive the assessment of damages for that breach.

Rule accordingly.