The issues to be tried were : Whether the notes sued on were: obtained by fraud and false representations; whether the consideration upon which they were given, had wholly failed;-and whether they were transferred to the plaintiff after they were duo, and with the knowledge by plaintiff at the time, of the fraud by which they were obtained, and of the want of any consideration to uphold them % The facts which defendant shows by his affidavit, that he could prove by the testimony of the absent witness, were pertinent and admissible to establish the issue on his part; and as ¡ffaintiff had admitted that the witness, if present, would swear to the facts stated, the defendant was entitled to give this admission in evidence.
. If there is anything in the affidavit not admitted by the other party, or anything stated not pertinent to the issue joined, the court may lawfully exclude so much' of it. But we see no valid objection to permitting the party to read to the jury, from the affidavit, the facts he swears he expects to prove by the absent witness, in connection with the admissions of the other party, that if the witness were present, he would swear to the facts stated. The affidavit is not, properly speaking, the evidence for the considera'-' tion of the jury; but it may be read to them as the basis of the admission of the plaintiff, which the defendant in this-case, seeks to have given in evidence.
Judgment reversed.