The opinion of the court was delivered, May 1866, by
Read, J.The main question in this case is, whether there was a valid assignment of the claim of the defendants on The Franklin Eire Insurance Company of Philadelphia to George Slate and Solomon Moyer prior to this attachment-execution. As a part of the testimony to prove its validity, the deposition of Jesse Fulmer was offered in evidence, objected to and rejected. In this there was error, for his interest as a creditor was very remote, and the payment of his debt was secured beyond all doubt, whatever was the termination of the present suit.
In the rejection of J. H. Fulmer there was also error, for he was a competent witness for some purposes at least, and between the claimants he was indifferent, and he could neither gain nor lose by securing the fund or part of it to either the one or the other.
The court was also in error in their answer to the plaintiff’s 1st point, for there was no evidence of fraud to justify the court in submitting it to the jury.
The answers to the plaintiff’s 2d and 3d points were correct.
The same defendants used two names under which they traded in the same place and in the same vicinity, separated only by an alley. Their liability was fixed by the judgment, and we cannot say the court was in error in rejecting the evidence stated in the 3d assignment of error.
We think there is nothing in the 6th and 7th errors requiring remark, for upon another trial upon the admission of the rejected evidence there will probably be a different aspect given to the case.
Judgment reversed, and a venire de novo awarded.