The opinion of the Court was delivered by
Gibson, C. J.We must not shut our eyes to the fact that Humerich and Sener are the persons who stand affected by the action ; for having no recourse upon the contract to any one else, it is on them the burthen of a recovery must fall. Myers would be liable to refund to them, but as a principal debtor, and not as a guarantor; and had he been of sufficient ability to answer for himself, it is to be presumed that he would not have been released. The College was a nominal party; for it took care to provide that its release of Myers should not stand in the way of its recourse to Humerich and Sener, his sureties; and to this they expressly assented. By whom then was Myers produced as a witness ? Undoubtedly by those who were the actual, though not the ostensible defendants. It is shown, by the expression of their assent, that they took an active if not an exclusive part in the manage*223ment of the defence; and being party to the action as well as to the release, they produced him as ,omni exceptione major. After that, it would be a fraud on the law were they allowed to insist on his original responsibility, which, as subsequently existing, would be inconsistent with his competency as a witness. Whatever is asserted by a party in the trial of an action in a Court of Record, may be asserted against him in a subsequent trial as an admission of the fact. In M’Clay v. Work (10 Serg. & Rawle 195), a letter which had been received in evidence during a former trial at the instance of the opposite party, was admitted as prima, facie evidence of the matters contained in it; but there are cases in which an implied admission has been deemed an estoppel by matter in pais, as by the acceptance of an estate, or of rent, or by entry, livery, or the like. It has been said that estoppels are not to be favoured. Certainly-they are not, where the act from which they spring has been done under a misapprehension of its nature; but where the party has acted with his eyes open, nothing can be more politic or conscionable than to hold him to the consequences of it, though it should make the release even of a stranger, the release of him who offered the witness on the foot of it. But the sureties here became actual parties to the release; and their assent to it amounted to an agreement to do whatever should be necessary to make Myers ’ a witness; and they consequently agreed to relinquish his responsibility to themselves. Having implicitly entered into this agreement, they are bound by it; for to get the benefit of his testimony as a witness apparently disinterested, and to reserve his contingent liability, would be a deceit. In that aspect the agreement would be a fraudulent one; but a fraudulent contract, though void as to strangers, is binding between the parties to it. The instant that the witness was offered, therefore, his interest was at an end, and he stood indifferent betwixt the parties.
Judgment affirmed.