The opinion of the Court was delivered by

— Assertions made subsequently to the execution of a conveyance are not evidence to affect the title of the grantee; but are not a man’s assertions, whenever made, evidence to affect himself? The court refused to let the plaintiff prove that the defendant subsequently persisted in the same misrepresentations which led to the assignment, when he could not have been ignorant of their falsity; and would not persistance in a known falsehood be pregnant proof of bad faith from the beginning? Men are seldom guilty of gratuitous dishonesty; and the defendant’s *555object was either to get back his note or to conceal a fraud in the transaction \yhich gave birth to it; and whether it was the one or the other, the offer was proper. The man who would stoop to procure the release of a debt by a falsehood, would not hesitate to lie in contracting it. The attempts of a criminal at concealment spring from a consciousness of guilt; and why not admit evidence to show the attempts of one who is charged by the very nature of the action with a moral offenee? It is said by text-writers, that intention, w'hich is an invisible act of the mind, can be judged of only by the visible acts which follow it. Surely, then, the original existence of a trick may be inferred from an unfair attempt to push an advantageous bargain still further, or from the utterance of a falsehood to conceal an original vice in it; for where there is no criminality, there is nothing to conceal. On this principle it is, that the utterance of a forged note is deemed evidence of the previous existence of a criminal design. The defendant’s subsequent misrepresentations, when he could not have been mistaken in the fact, would have gone far to prove the wilful falsity of his previous story; and they ought to have been suffered to pass to the jury.

The offer to prove that the plaintiff acted in confidence of his truth, was also proper. Proof that he had thus been induced to part with his interest in the job, was necessary to his case; for unless he was injured by the deceit, it could give him no right of action.

The evidence of sickness among the labourers, unqualified as it was in point of time, and of the defendant’s own illness in particular, was erroneously admitted. The prevalence of an epidemic at or before the time of the assignment, might have given the colour of truth to a representation that the prospect of gain from the job was so unfavourable as to justify a belief that it would end in a loss; but there is nothing to justify such a belief at the time material to the question, in the prevalence of an epidemic which had not then broken out. Evidence that sickness had retarded the work and raised the price of labour so much as probably to make the job a losing one, would have been pertinent; but the representations which led to an assignment of the plaintiff’s interest in it, were made early in May 1838, and the evidence of the sickness had regard to the latter part of that year and the subsequent one. The evidence of the defendant’s own illness was equally incompetent, and more mischievous. By becoming the active partner, he took the risk of his own health upon himself; yet his illness was doubtless taken to be a legitimate subject of compensation. I infer this from the absence of every other specious pretext for the verdict that followed, and from an experimental knowledge of the ease with which a false commiseration runs away with a jury’s brains. At all events, the fact may have been so; and the evidence ought not to have been admitted.

*556The remaining bill of exceptions is not sustained; but a particular matter which was suffered to pass sub silentio in the court below, ought not to pass without remark here, as it recurs with provoking frequency, despite the decisions of this court, for instance, in Childerston v. Hammon, (9 Serg. & Rawle 68); and Fisher v. Kean, (1 Watts 278). I allude to the practice of excluding evidence by force of counteracting evidence; which casts the decision of the facts and the credibility of the witnesses on the court, instead of the jury, and which might turn a plaintiff out'of court before he could plant his foot in front of the jury-box. Preliminary questions of fact, involving, for example, the interest of a witness or the execution of an instrument, must necessarily be determined by the Judge, or referred, at his discretion, to the jury; but the production of proof that a contract had not been reduced to writing, is not a preliminary step to proof of its terms by parol. For the credit of the profession, I trust that no further trace of this anomalous practice will appear in our books.

Judgment reversed, and a venire facias de novo awarded.