
    *John L. Dixon, administrator, et al., plaintiffs in error, vs. Lewis H. Edwards, defendant in error.
    (Atlanta,
    January Term, 1873.)
    1. Action on Note — Surety—Administrator—Witness,—Where the defendant is security upon a note, and is the administrator of the maker, and is sued in both characters, the plaintiff is an incompetent witness. (R.)
    2. Same — Same—Defense—Illegal Contract — Evidence.—Where the defense set up to a suit on the note, is that the money (for which said note was given, was borrowed for the illegal purpose of aiding and encouraging the rebellion, it is competent for defendant to prove a conversation between himself and plaintiff, in which defendant stated to him that he knew the money was borrowed for the purpose of aiding and encouraging the rebellion, and that he (plaintiff) did not deny this allegation. (R.)
    3. Same — Same—Conversation—Evidence.—Where a part of a conversation is placed in evidence, the whole is admissible. (R.)
    4. Same — Same—Statements of Intestate.-) — Where an administrator is sued as such, and as security upon the note made by his intestate, the statements made to him by his intestate in reference to the matter in controversy are inadmissible. (R.)
    Witness. Consideration. Rebellion. Evidence. Admission. Before Judge Wright. Meriwether Superior Court. August 'Term, 1872.
    'Lewis H. Edwards brought complaint against John L. Dixon, as administrator upon the estate of George A. Hall, as principal, and said John L. Dixon, as security, on a promissory note, dated August 29th, 1861, due one day after date, for $200 00, payable to the plaintiff or bearer. The defendant pleaded the general issue; that he tendered to the plaintiff, in the summer of 1862, the principal and interest due upon said note, (whether Confederate money or not does not appear) and he declined to receive it, stating that he had no need of the money, and he would not charge defendant any interest until he demanded a settlement; that the money for which said note was given was borrowed from the plaintiff, with his knowledge, for the purpose of aiding and encouraging the rebellion.
    
      The plaintiff introduced the note in evidence, and then proposed to prove facts, by himself, tending to show that the money borrowed was not used for the purpose of aiding and *encouraging the rebellion. The defendant objected to the plaintiff’s testifying, upon the ground that the other party to the contract was dead. The objection was overruled, and defendant excepted.
    Plaintiff testified and closed.
    Defendant proposed to prove, by himself and John W. Park, 'Esq., that in the fall of 1862, he tendered to the plaintiff the money due on the note, and he declined to receive it; that defendant again, on the same day, went to see plaintiff, in company with John W. Park, Esq., and tendered him the amount of the money due upon the note, and insisted upon his receiving it, telling him that Colonel Hall had lost his life in defense of the country, and their common property; that plaintiff knew the money was borrowed to enable said Hall to buy a horse and military equipments for the service of the Confederate States'; that the horse and Hall were both killed, defending plaintiff’s and witness’ property; that neither witness nor Hall had received any benefit from the money; that he (defendant) thought that he (plaintiff) ought to take it; that Edwards never denied the purpose for which the money was borrowed, but stated that he did not then need it; that Hall had promised, certainly, to pay the money at Christmas, 1861, and as it was not paid then, he did not now want it; that defendant could keep the money without interest until the war was over; that he could not use the money; that if the war was successful, defendant could pay him just what Hall borrowed, and if it proved a failure he would not require him to pay anything.
    Upon objection made to said testimony, the same was excluded, and defendant excepted.
    The defendant proposed to prove, by his own testimony, that in the fall of 1865, after the conclusion of the war, he tendered to the plaintiff in greenbacks the face of the note, with interest to the time of a tender made in March, 1863, and with interest from the close of the war to the time of the tender in the fall of 1865 ; also, that he tendered to. the plaintiff the full amount of the verdict rendered by the petit jury, *upon the first trial (the principal of the note, with interest to March 1st, 1863,) immediately after it was rendered; that both of these tenders were refused.
    Upon objection made, this evidence was excluded, and the defendant excepted.
    The defendant further proposed to prove, by his own evidence, that at the time the money was borrowed, Hall was the captain of a,military company in the service of the Confederate States; that said company was, at that time, encamped in the county of Meriwether, and Hall wished to borrow this money to buy him a horse, sword and uniform, to be used as a soldier in the service of the Confederate.States; that Hall told defendant that he could borrow the money from the plaintiff with his name, and that defendant, under this state of circumstances, signed the note, and Hall obtained the money and used it for the purposes above designated.
    Upon objection made, this evidence was excluded, and the defendant excepted.
    The Court charged the jury, inter alia, as follows:
    “That it was not necessary for the plaintiff to prove or show that the note sued upon was not founded upon, or in any way connected with any such illegal contract as was set forth in the plea, and was not made in aid of the rebellion, but that it was sufficient for the plaintiff to prove that he had no knowledge of the purpose or use to which the money, or any part thereof, for which said note was given, was applied.”'
    To which charge the defendant excepted.
    The jury returned a verdict for the plaintiff for the full amount of said note, principal and interest.
    The defendant assigns error upon each of the aforesaid grounds of exception.
    George E. Peavy ; J. W. Park, for plaintiff in error.
    1st. Edwards was an incompetent witness: Code, sec. 3798; 36 Ga. R., 565; 37 Ibid., 118; 39 Ibid., 186; 40 Ibid., 490; 44 Ibid., 49.
    2d. The Court erred in ruling out the testimony of Dixon: *Code, sec. 3737; 2 Nott. and Me., 336; 1 Green-leaf’s Ev., secs. 197, 199.
    A. H. Freeman ; Wright & Dent, for defendant.
    The law of tender: Code, sec. 2823; 35 Ga. R., 8; 24 Ga. R., 11. Contracts void in aid of the rebellion: Constitution, Art. V., sec. 17; Code, sec. 5213; 40 Ga. R., 701." As to competency of Edwards: 36 Ga. R., 520, 567; 37 Ibid., 623; 38 Ibid., 103. Admissions scanned with care: Code, sec. 3739.
    
      
      Administrator — Witness.—“An administrator, though a creditor of intestate, is a competent witness to show by debts of the estate other than his own, the necessity to sell the land, and to show his acts and the state of his account since the administration, but not to prove any debt due to him from the intestate arising from a partnership between them or otherwise.” Finch v. Creech, 55 Ga. 124, citing principal case. See note to Jackson v. Jackson, 40 Ga. 150; Field v. Walker, 36 Ga. 521.
    
    
      
      Witnesses — Death of One Party — Competency.—To the ruling that “a witness who is interested as a party, or who is interested in the event of the suit, is incompetent to testify, where the opposite party to the contract or cause of action in issue or on trial is dead,” the principal case is cited in Flournoy v. Wooten, 71 Ga. 173; Whitaker v. Groover, 54 Ga. 176. See notes to Stotesbury v. Lanier, 42 Ga. 120; Crenshaw v. Robinson, 37 Ga. 119.
    
   Warner, Chief Justice.

This was an action brought by the plaintiff against the defendant, as administrator of Hall, and as the security of said Hall, the intestate, on a promissory note for $200 00, payable to the plaintiff, dated 29th August, 1861, and due one day after date. Th.e defendant filed a plea alleging, under oath, that the note was executed by his intestate for the illegal purpose of aiding and encouraging the rebellion, as provided by the 2d paragraph of the 17th section of the V. Article of the Constitution of 1868. On the trial of the case, the plaintiff was sworn and offered as a witness in his own favor, for the purpose of proving that if it was the intention of Hall, the defendant’s intestate, to use the money for which the note was given in aid of the rebellion, that fact was not known to him. The defendant objected to the plaintiffs being sworn as a witness, on the ground that Hall, the other party to the contract, was dead, and that the suit thereon was against him as administrator of his intestate. The Court overruled the objection, and the defendant excepted. The 3798 section of the Code, which provides that parties to the suit may be witnesses in their own behalf, makes the following exceptions: “Where one of the original parties to the contract or cause of action in issue or on trial, is dead, or where an executor or administrator is a party in any suit on a contract of his testator or intestate, the other party shall not be admitted to testify in his own favor.” ■ Hall, one of the *original parties to the contract sued on, is dead, and his administrator is a party to the suit on that contract of his intestate, and the statute declares, in express terms, in such cases, that the other party to the contract shall not be admitted to testify in his own favor, and such has been the construction given to the statute by this Court: Leaptrot vs. Robinson, 44 Georgia Reports, 46. The fact that the defendant, who is sued as administrator of the intestate, signed the note as security for the intestate, and is sued as such in the same action with the administrator of the intestate, does not alter or change the rule. It was said, on the argument, that to exclude the plaintiff from testifying- in his own favor in this class of cases, under the provisions of the Constitution of 1868, where the defendant makes oath to his plea, and thereby devolves the burden of proof on the plaintiff, will operate as a great-hardship on him; that may be so, but it is not the business or duty of the Courts to make the law; their duty is to administer and enforce it as it exists. The statute does not make this particular class of cases an exception to its operation when one of the parties to the suit is dead, and the Courts cannot do so. When a statute speaks in plain, unambiguous language, it speaks like a tyrant, to be obeyed by Courts and people. In our judgment, the Court below erred in admitting the plaintiff to testify in his own favor in this case.

The defendant then proposed to prove by himself, as a witness in his own behalf, and by John W. Park, Esq., who was also present, that in the fall of 1862, he tendered to the plaintiff the money due on the note, (the record does not state what kind of money,) and that plaintiff declined to receive it, defendant stating to the plaintiff, at the same time, that he knew the money was borrowed to enable Colonel Hall to buy a horse and military equipments for the service of the Confederate States; that the horse and Hall were both killed defending plaintiff and witness’ property, etc., and he thought plaintiff pught to take the money. Plaintiff never denied the purpose for which the money was borrowed, but stated that he did not then need the money; that defendant could *keep it until the war was over, without interest, etc. This evidence was ruled out by the Court, and the defendant excepted. In our judgment, that portion of the evidence which charged the plaintiff with a knowledge of the purpose for which the money was borrowed of him by Hall, and not denied by him at the time, was competent evidence to have been submitted to the jury: Code, 37,37.

The plaintiff was entitled to have the whole of the conversation that took place between the parties at the time given in evidence, so that the jury might judge of its weight and effect. The evidence was competent for what it was worth in the estimation of the jury, and it was error in the Court in ruling it out.

The other testimony of Dixon, the defendant, which was ruled out, as specified in the record, was competent, so far as he proposed to state facts within his own knowledge pertinent to the issue on trial, but not as to facts derived from Hall, his intestate, or as to what he told him. If the previous evidence of the defendant and Park had been admitted, as, in our judgment, it ought to have been, then this latter evidence of Dixon would have been admissible for the consideration of the jury, in connection with that other evidence as to the knowledge of the plaintiff as to the purpose for which the money was borrowed. We express no opinion as to the weight or effect this evidence should have with the jury. All that we decide is, that it was competent evidence to have been submitted to them. If the evidence improperly ruled out had been admitted, then we should have held that the charge of the Court to the jury was error, but if that evidence had been properly ruled out, we should not have reversed the judgment for error in the charge of the Court, on the statement of facts then before the jury when the charge was given.

Ret the judgment of the Court below be reversed.  