*215The opinion of the Court was drawn up by
Tenney J.The signatures on the notes in the two suits were not denied; but the defence was upon the ground, that they were obtained by fraudulent representations, and that thereby they were given for too large a sum. It is not perceived, that any of the general instructions to the jury were erroneous; and indeed the argument in support of the exceptions is not founded upon such a position ; but that the plaintiff was not entitled to recover, because there was a warranty arising from the terms used in the bill of sale of the lumber from F. & I. S. Whitman to the defendants, and from the evidence in the case. The bill of sale, we think, will not admit of such a construction. The fair import of it is, that a quantity of lumber, not surveyed, was sold for a gross sum, there being no description of the kind or quality, or the precise amount. The word “boards” was used not to indicate that the lumber was merchantable, or that if. was sold as such, but as a term applied to a particular species of lumber. There is nothing in the evidence, which required the legal instruction to the jury, that, if it was believed, the vendors of the lumber were holden to deliver merchantable boards.
Objections were made to the competency of I. S. Whitman and Dexter E. Wadleigh as witnesses for the plaintiff. They were both examined on their voir dire. Every person not a party to the suit is admissible, until his incompetency is made in some manner to appear; and we are to look at the whole of the statement made by a witness in this examination in determining the question ; and Courts have endeavored to let the objection go to the credit, rather than to the competency of witnesses. Bent v. Baker, 3 T. R. 27.
WRitman stated that he had at the time of the trial no interest in the event of the suit, that he had transferred the notes some time previous and an allowance to him therefor for more than their amount was made by his creditor; and it appears that he was released by the plaintiff in the suit from all liability for costs. Ho is not a party of record, and a verdict in this case, cannot be evidence for or against him in a suit, in *216which he may be a party, and his testimony was properly allowed.
Wadleigh once owned the lumber, which was the consideration of the notes, and it was put into the hands of F. & I. S. Whitman as collateral security for his indebtedness to them, before the sale to the defendants. The bargain was made, by him, but his creditors sold the lumber, and took to themselves negotiable notes, and he expected they would give him credit therefor. The witness and the Whitmans had a reference, and he expected no further credit, and that he had no interest in the event of the suit. There is no suggestion made by him, that the makers of the notes were of doubtful. ability to pay, and the facts, and the expectations of the witness were inconsistent with the idea, that the notes had not absolutely gone into the hands of his creditors; and that he either had credit for their amount, or was entitled thereto, we think is manifest. It is true, he stated that the notes were taken as collateral security, but we are satisfied, that when the whole is taken together, his meaning must have been, that they were to account to him on their claim for the same.
The testimony of John Oakes and Atherton Pratt was admitted, excepting so far as it had reference to the quality of the lumber, which they had surveyed, as surveyors appointed by authority of statute, and which was required to be made matter of record, and was in fact so made. These records were introduced, were the best evidence of the facts, and could not be controlled by parol testimony.
The question, whether the notes were obtained by fraudulent representations or not was one of fact, which was put to the jury and passed upon by them. The evidence as reported, we think will not authorize the Court to interfere in that, which it was théir province to settle.
Exceptions and motion jor nevo trial overruled.