
    John Stoney, vs. John. P. M'Neill.
    
      Sf ter pleading to the merits, it is too late to ia« e advantage of the-plaintiff’s omissson to make oath of the debt or sum demanded,, at the time of filing his declaration, in a proceeding by attach-merit.
    
    
      td person who is in possession of a bond, assigned in blank, is inlaw, prima facie, the owner; and the obligor making payment to such holder, bond fide, will be discharged.
    
    
      JLny evidence which went to shew that the payment was made bona fide, 'should have been admitted; without regard to thein-tent-ion of the obligee, at the time of making the assignment.
    
    
      One who had guarantied the ultimate payment of a bond, .toas held an incompetent witness to prove that it had not been paid to himself,-while it was in his possession, assigned in blank,
    This-- was an action of debt, by process of attachment, brought by the- plaintiff, as assignee of Alexander Henry, ¡against the defendant, one of three co-obligors. The plaintiff made no affidavit of the subsistence of the debt, upon'filing bis declaration, as the attachment act requires. On the suggestion of the plaintiff's attornics, that the defendant had an attorney in fact,, residing in Charleston, á rule- was issued and served on him, requiring the defendant to plead within two months, or suffer judgment by default. In pursuance of this rule, the defendant pleaded, first: That there had been no assignment made ©f this -bond by Alexander Henry, the obligee, to the plaintiff; and secondly, that an assignment had been made by Alexander Henry, the obligee,-to Joshua Brown, to whom the defendant had satisfied his obligation, and was discharged. The bond in question was the joint and several obligation of William Walton, John Walton, and John P. M‘Neil, bearing date the 11th December, 1811. On the back of this bond, Alexander Henry the obligee, had endorsed his name, in blank, and annexed thereto his seal. The following special guarantee was also placed upon the back of the bond: “ I, Joshua Brown, do hereby bind myself, my heirs, executors, and administrators, to guarantee to the within named Alexander Henry, Iqs heirs, exec-tors, and administrators, and assigns, the ultimate payment of the within bond, on which has been made no payment what- . ever, together'With the interest to grow due thereon, according to the tenor and effect of the within bond. Given under my Jtand and seal, this the fourth day of June, 1812.”
    - (Signed) Joshua Brown, (L. S.)
    
      In this situation the bond had passed into the possession of Joshua Brown, by delivery, with whom it had remained for the space of two years, dunug which period, M'Neill, the defendant, in a settlement made with Brown, the holder of the bond, obtained from him the following receipt, which was endorsed upon the bond: “ Received at Charleston, the 25th May, 1813; from Mr. John P. M’Neill, the sum of eight thousand five-hundred and fifteen dollars, in consideration of which payment* I do hereby exonerate him from any further responsibility -oif account of the within bond.”
    (Signed) Joshua Brown.
    Subsequently to these proceedings, to wit, in the year 1817, the blank above the name of A. Henry, on the back of the bond, was filled up in these words: “ 1 assign and set over the within bond and ail my right and interest therein, to John Stoney, his executors and administrators, for value received.”
    Mr. Joseph Bennett testified that the bond was brought to liimby Mr. Stoney, tobe sued for the benefit of all concerned. That the words over the name u A. Henry” were not then written, but that a receipt, signed by Joshua Brown, was then on the bond; that the assignment was filled up by the clerk in the office, when the declaration against Walton, one of the obligors, was'drawn. This declaration had been filed in July 1817, and the present suit was commenced in March, 1817, The defendant gave in evidence, an answer of Mr. Stoney, in the court of equity, in which he avers the assignment to have been to him- and three others, and that he had no exclusive in» terest in the bond, and that he received the bond from Joshua Brown, in 1814. On the adduction- of this evidence, a non-suit was moved for, which was overruled.
    Mr. John Robinson was called by the defendant, to prove that Joshua Brown and Alexander Henry, who had been partners in trade, had given public notice in the papers, upon the dissolution of their partnership, that all debts due to them were transferred to Joshua Brown, and to show that this bond was-given for a partnership debt; hut the admissibility of this evidence was overruled; as also evidence which was offered of an arbitration between Brown and Henry, respecting the property of this bond, and evidence to prove a contrae* between Brown and Henry, respecting the assignment of this, bond.
    General John Geddcs was called, by the defendant, and proved that he delivered this bond, wdth Henry’s name on the back of it, to Joshua Brown, on the 4th June, 1812. He stated that it had been agreed, by arbitration, to assign the bond, as a collateral security, to Fitzsimons, Stoney, William-son, and Cohen, and that it was part of the agreement that they should give a receipt; that Brown brought their receipt, and he (witness) delivered the bond to him; that the assignment was-made in pursuance of an arbitration, and was left in blank for the parties to fill up as they pleased. A Mr. Burke proved, that the consideration of the discharge by Brown, was cotton and produce, delivered by M‘Neill to him; and he stated that when MNeill made this satisfaction, he and the Waltons had failed, and that all his estate would not have paid 5s. in the pound.
    To rebut the force of the evidence offered by the defendant, the plaintiff called Joshua Brown; to whom the defendant objected on the ground of interest; but the presiding judge ruled that his interest and the defendant’s were the same, and that being called by the plaintiff, he was competent to swear against his interest. Mr. Brown was first interrogated on his voir dire* and said he was not interested, because he was insolvent; and whatever the event of the suit might be, he could lose nothing. He was sworn in chief, and stated that the bond was delivered to him on the 4th June, 1812, to carry to the parties, who had given a receipt for it; but that neither Mr. Stoney, nor any of them would receive it, and he kept it two years: that M‘Neill offered to pay him one-third for a discharge; that witness told him,he had no right to receive it, and that the bond did not belong to him; that he was a mere earner; but M‘Neill said he did not care, and gave him the draft of a receipt, and said that if he would put that receipt on the bond, he would pay him, in produce, one-third of the bond. He said M'Neill had cheated him, and that he had lost $2,800 on the produce; but that he paid over the full amount towards satisfaction of Mr. Henry’s .notes.
    The presiding judge stated to the jury, in the charge made t-o them,, that the assignment to Stoney had been fully proved;- and that he was entitled in law to recover the full amount-called' for by the bond: that the jury could not and ought not to respect the plea of satisfaction to Brown, to whom the evidence showed no assignment had been made; that it was not the intention-of Henry to assign to him, and, therefore, the assignment in' blank operated no transfer to him, with other views taken of the subject, all tending to shew that the right oi the plaintiff to' recover ivas undoubted. The jury found a verdict, corresponding with the charge, to the amount of the bond. The defendant now moves to set aside the verdict, and that a non-suit be entered, for the following reasons:
    1st. That the affidavit of debt ivas indispensable by the at*--tachment act.
    2d. That if the affidavit be not positively necessarjffin an attachment cause, it is at least essential that the contrary should not appear; hut the answer which was put in as evidence, expressly negatived the assertion of debt due to the plaintiffs.
    3d. Because if any assignment was proved, it was an assignment to four persons jointly, and not to one severally. In the event of this motion failing, then a new trial is moved for;
    1st. Because the presiding judge excluded evidence material to prove a joint assignment.
    2d.- Because he rejected evidence, material to shew that A. Henry and John Stoney had enabled Brown to hold himself out as ■ the owner of the bond, with all the exte. nal indicia of property.
    3d. Because he admitted the testimony of Mr. Brown, who * was directly interested in the event of the suit, and was mistaken • in supposing Brown ivas swearing against his interest.
    The 4th and 5th grounds relate specifically to the charge of the judge, which has already been taken notice of.
    Grimke, for motion.
    The affidavit in this case was certain- - - ly matter of substance, being positively directed by the attachment act. If on the trial of a cause, it appear that the plaintiffis an alien or á slave, he will fail, though the matter may not have been pleaded. Such an one Is incapable to sue. The statute authorizes this process, on condition of making the affidavit; and ’ if in the progress of the cause, it appear that the affidavit was J?ot made, the defendant may avail himself of the defect.
    
      As to the assignment of this bond to plaintiff; it is ig‘ evidence that the assignment in blank, on the back of the borní, was made with a view of transferring the property to four. The rule is that all who are legally interested on the subject matter 'of the action must join. How is it that Stoncy has sued alone? He might perhaps have maintained trover for the bond, if it had got out of his possession; but this would have been founded on his possession alone, and has no relation to the present question. A blank indorsement may he filled up after action brought, but it must be according to the rights of the. parties. Stcuey it -seems sues for the benefit of all concerned, but whence does he derive bis authority to do so? Those who are interested in a -contract or piece of property, may appoint an agent, whose acts will bind them, but this will not authorize him to sue in his own-name. Or admitting that the assignees of ibis bond might; by mutual consent, fill it up in the name of either, is there any evidence of such consent? Coijld a judgment in favour of tins plaintiff, be pleaded in bar to a suit by the four? Might a payment to the four be pleaded, so as to defeat the action of the present plaintiff? A question may well be made too, whether the whole of the assignees had a right to site, as the bend was only transferred to them in pledge.
    
      Petigru, atfy. gen. for motion.
    The evidence establishes, that the bond was placed in thejDossession of Brown, by Henry-; that the plaintiff and those interested with him, refused to receive-it of Brown, and permitted it to remain in his possession for two years, and that while in the possession of Brown, the payment was made by M‘Neill, and the discharge given, which appears on the hack of the bond. With respect to this part of the case, our proposition is, that if one person furnishes another with the means of exhibiting himself as. the owner of his property, he will be bound by his' acts, so far as third persons without notice, are concerned. This is the hinge on which the case turns, and will be examined particularly.
    . An 'example may be given in the case of sales made by a factor: “When a factor deals for a principal who does not appear, and the factor delivers the goods in -liis own name, if the. person dealing with the factor on his own account, has,, any demand against the factor, he has a right to consider the factor ag f]he principal, and to sett off any demand he may have against the value of the goods so sold, and such would be a good answer to any action by the principal for the price of the goods.” George vs. Claggett, 2 Espin. Rep. 557. So in Delira vs. Edwards, “where a factor, by assent of bis principal exhibits himself as owner, and by that means obtains credit, the principal will be liable who furnished the means. 1 Maulé fa S.. 147. The case of a factor pledging, is treated as an exception from, the general rule; yet wherever a person furnishes another with the means to exhibit himself as owner, he shall be responsible. See Rah one vs. Williams, 7 T. R. .356. •
    ■ The transfer of a hill of lading, by a general assignment* is a case in point. In Wright vs. Campbell; 4 Bur. 2046, the owner had assigned the bill in blank and sent it to his factor, for the purpose'of receiving the goods for him. The factor disposed the bill of lading for his own use, in payment of his debts; the owner seized the goods. Per. Ld. Mansfield “if there he an authority never so general by indorsement on a hill of lading, without disclosing that the. endorsee is a factor, the owner as-between him and the factor, retains a lien ’till the delivery of the goods and'beforc they are actually sold and converted into money-. If the factor pay it over to a third person, with notice, it maybe followed in the hands of such third person, for in such case, it remains in his hands just as it did in the hands of the factor himself. But if they are bona fide sold by the factor, the vendee shall hold them by virtue of the hill of sale. If so,, then, the whole of this case turns on the question whether this was a fair transaction, without notice, or a trick and contrivar ce to cheat the owner.” In Solomons vs. Nissan, 2 T. R. 678, it is again laid down, that in all- those cases, between the real owner and third persons, the question is bonafides. But this is a question which was not submitted to the jury in the present case. His honor the presiding judge, instructed them that Brown had no right to receive the money, because the blank assignment was not made with a view of transferring the prop My •of- the bond to him, and that M‘Neil could not he protected in-•his payment, whether made bona fide or no. Had it been otherwise, we are very strongly persuaded, that, notwithstanding the testimony óf Mr. Brown, the jury, upon all the' circumstaaces-of the case, would llave decided for the fairness of the transaction on the part of the defendant.
    The rule itself is founded upon a.general principle, that “where one of two innocent persons must suffer, by the act of a third, he who has enabled such third person to occasion the loss, must-sustain it. Per. Ashhúrsi, J. in Lickbarrow vs. Mason, 2 T. R. 63.
    But did Mr. Stoney and Mr. Henry, furnish Brown with the means of exhibiting himself as the owner of this bond? They permitted it to go into his possession and remain there, with an assignment in blank indorsed. What is the effect of a general or blank assignment? and in what docs it differ from a special assignment? As between the parties themselves, the actual owner still retains bis right, in whatever terms the assignment may .be drawn. But as to third person, the question is bona fide or not. It is a general rule that there is no difference between a general and a blank assignment. In the celebrated case of Lickbarrow®». Mason, this distinction would have been very material, but was abandoned. Per. Buller, J. “Lord Hardwick thought there was a distinction between bills of lading indorsed in blank and those indorsed to particular persons, but it was properly admitted at the bar that the distinction could tint be supported.” 2 T. R. 73. If we may rely on this authority, bur case is as strong ás it would have been,-had Henry written above his signature, “I assign to Joshua Brown.”
    In this very case, his honour laid down, that Stoney might lawfully fill up the blank assignment. And why is this lawful? Because the assignment in blank is equal to an assignment tb a particular person.- So as to bills of lading: after establishing the principle, that bills of lading may be transferred by indorsement of the owners name, it was held, and so the jury found, ■on the second trial of the case of Lickbarrow vs. Mason, “that indorsements in blank, that is to say, by the shipper or shippers, with their names only, may be filled up by the person or persons to whom they are so delivered. 5 T. R. 683. On no other ground can the right of the holder to fill up the assignment be sustained. It is one of the incidents of an assignmeift in blank-’ that it gives to the person to whom it is delivered, the tight of-filling it up; and it gives him that right, because it is a tranfer of the property of itself. If it did not of itself transfer the property, the alteration made by filling up the blank would be forgery. The strictness of the common law; with respect to altering deeds is well known. Plgotfs case, 11 co. 27. The rule is the same as to other writings. Mastyn vs. Miller, 2 My. Bl. 141. Bulkley vs. Howell, 1 Nott 8c M'Cord, 249, was the case of an assignment in blank.
    But if will be said Brown acquired' no right to fill up the blank; which is as much as to say, Brown did not acquire the real ownership by the assignment in blank. Neither would he have done so by a special assignment in his name, if it had been made for the use of Henry or any other person. Let it be admitted, however, that he- was only the apparent owner. The general rule applies to the case “that if one of two innocent persons must suffer, he shall bear the loss who enabled .a third person to occasion it- •'
    But it may be objected that there was in fact no assignment to Brown. Though Stoney- may he bound by Ms acts, in consequence of permitting him to exercise an apparent ownership; yet he himself still remained the real owner. In order to avail ourselves of the satisfaction made by Mr. M'Neill, we should have pleaded payment generally or satisfaction to the plaintiff, and that our plea of assignment to Brown, cannot be supported. In pleading, it is sufficient to alledge things accord* ing to their legal effect. If MNeill, without notice, paid to Brown as assignee, it supports the plea, because virtually he was assignee.
    Yet how can it be concluded that there was no assignment to Brown, when our evidence was stopped. The bond wás his property, and certainly it is possible that we might have shewn it. The court, not knowing the circumstances, look upon him as a joint obligor. The rejection of the evidence is supported by the decision in this case, when formerly before the court. 1 Mc Cord, 85. The case only decides that payment to apart-ner, who does not appear in the bond, cannot be pleaded. It does not follow that partnership may not be an important fact in the proof that the payment was bona fide — or in proof of an assignment, if all partnership debts be assigned. But the judgment is in our favor, as it lays down expressly that every thing which could be proved under that plea, might be given in eyi* denee under the general issue.
    Prioleau, against the motion.
    I shall first inquire as to-the necessity of the affidavit, which was omitted to be filed withty the declaration; next, examine the sufficiency of the proofs, as' applicable to the issues in the case, and last, the competency of Brown’s testimony:
    First, as to the affidavit. The attachment act requires that an affidavit shall be made, upon filing the declaration; it is not required that it shall be filed, or shall be in writing. The presumption is that an officer, intrusted with a public duty, has discharg-ed it; and if the affidavit were necessary, we ought to presume that the clerk of the court did not file the declaration •until it was made. But is it necessary, now, that the affidavit should have been made? The party defendant has appeared, and pleaded to the declaration, which he aiiedges to have been thus irregularly filed. (Here Mr. Prioleau was stopped by the court, who were satisfied as to this point.)
    The questions presented by the issues are, did Henry assign to Stoney? did he assign to Brown? The assignment on the back of the bond, produced in court, was regular and perfect, and furnished complete evidence of the assignment.to Stoney. Parol testimony should not have been received to contradict this evidence. It is true, that parol testimony may be given, to shew for whom a blank endorsement was intended: but when the blank is filled up, according to the intention of the parties, it is regarded in law as though it had been written in full, from the beginning; and can be no more explained, contradicted, or altered, by parol testimony, than any other written instrument. For whom the assignment was intended, is a matter of fact, which was submitted to the jiuy; and they have found an assignment to Stoney, and no assignment to Brown.
    Admitting all the force of the argument, that he who enables another to hold himself out, as the owner of his property, will be hound by his acts, it cannot avail the defendant, under his pleas, in the present case. Brown was not assignee. It is clearly proved that the bond was delivered to him as an agent. His guaranty, written on the bond, rebuts any presumption of his having an interest in it; for why guaranty the payment of a. debt due to himself? If he had any interest, previous to the transfer to Stoney, he could not now assert it; for ha was privy to that transfer, and sanctioned it by his acquiescence. Any thing which passed between Henry and Brown, is, as to the present plaintiff, res inter alios acta. If it was the defendant ’subject to shew that the plaintiffs acts, or his negligence, gave J5"o srn authority to receive payment, he should have pleaded payment generally. Payment to an agent would have sustained that plea, hut caunoi sustain those which are pleaded.
    The guaranty of Bro wn must have had the effect of putting the defendant on his guard. He could scarcely suppose him the owner of a bond, for the payment of which he had bound himself to a third person: and he who pays money must see to the application of it, and be certain that he pays to his creditor.
    Was Brown a competent witness? To render a witness incompetent, his interest must he direct; he must gain or lose by the event of the suit. A witness may be sworn against bis interest; or if he is equally liable to both parties, he is competent. (Í M- Cord, 285; 1 T. R. 164; 1 Espin. Rep. 120.* Phil. Eo. 56.) Brown swore against his interest. If he had proved the bond lawfully paid, his guaranty would have been discharged: by proving it unpaid, lffs liability, in the event of M‘Neill’s inability to pay, continued; and he moreover rendered himself answerable to M‘Neillfor the amount which he had received of him.
    
      Hunt, against the motion.
    This seems to be a case depending on facts; and the facts were fairly submitted to the jury. The question was, to whom was the bond assigned. The assignment was made in blank, and all testimony was admitted, which went to shew for whom it was intended.
    What effect could the testimony, which was rejected, have had on this question. It was attempted to be shewn that this bond, in the name of Henry, was the property of Brown — or was partnership property. Even if this were the fact, and it were competent to shew it by parol, Brown, who is said to have owned the bond at the time the payment was made, would be estopped from setting up the claim. The testimony of Gen. Geddes shews that the guaranty of Brown, and the assignment Jo Stoney, were cotemporaneous; they wei’e part of the samp transaction. Brown then in effect, guarantied the payment to Stoney; and how can it be pretended that he was the owner, as against Stoney?
    But it is said that-Stoncy, by permitting the bond, with blank assignment, to remain in the hands of Brown, enabled .Mm to- hold hiniself put as the owner, and is answerable for his acts. It does not appear, however, that Stoney knew the assignment to have been in blank. He knew that it had been agreed that the bond should be assigned to him: he was informed that it was assigned, and delivered to his agent; and naturally supposed that the obligor would take care to see the assignment and ascertain the 1 older’s right to receive, before he made payment.
    
      Hafper, in reply.
    1st. As to the affidavit, which is required by the attachment act, and which was omitted to be filed with the declaration. It is said that this provision of the act was intended for the benefit of the' defendant, and has been waived by pleading to the merits. The distinction is, that an irregularity may be waived, by the opposite party’s failing to take advantage of it at the earliest opportunity, or proceeding after it has been committed; a defect connot be so cured. Tidd. 435-. Is this a defect? Under a statutory proceeding, the omission of any thing which the statute positively enjoins, Is. a defect. The stat. 37, Geo. 3, c. I, gives an action of debt, to recover certain penalties under- the lottery act, and directs process to issue “ specifying therein the amount of the penalty or penalties sued for; whereof' an affidavit shall first be made and filed.” In the case of King, (¿. T. vs. Horne, 4 T. R. 349, it was. contended that the legislature had given the common law action of debt, and that if any irregularity had been committed, by failing to make and file the affidavit, it had been waived by taking out the declaration, but the court said, “ the act of parliament is imperative.” Our statute is nearly in the same words. See also Goodwyn, Q, T. vs. Parry, 4 T. R.577. ' .
    We are to enquire, under our issues, whether there has been an assignment of this bond to the plaintiff, so as to enable him. to sue; and next, whether there was an assignment to Brown* «a whom we have pleaded satisfaction.
    
      It may aid these inquiries, if we can ascertain in what manner the assignment of a bond is to be made. By the common law, any property in possession might be transferred, or assigned: choses in action, in genei’al, could not; but there was an exception, with respect to a particular sort of choses in action, by the law merchant. Our statute, which authorises the assignment of bonds, prescribes mode of effecting it; and it is. for' the court to determine whether they are to be transferred like any other personal property; or whether their transfer is to be governed by the rules which apply to negotiable paper; the only assignable choses i& action heretofore known to our law. It is perhaps not very material to our case,: how this may be settled; but our defence will stand in a different point of" view, as we regard the assignment to have been made in one Or other of these modes.
    Things in possession may be assigned by deed, or by-writing without seal, or by words expressing the intention, accompanied by delivery.
    As this assignment now appears on the bond, it seems to have been made by deed. But the testimony informs us of circumstances, which will prevent its operating as a deed. A blank signature and seal were first put on the back of the bond and the body of the instrument afterwards written above it. The slightest alteration of a deed will vitiate it. 11 Co. 27. French vs. Walton, 9 Fast, 851. Powell vs. Fuff, 3 Camp. 181. .A blank signature with a seal was decided to be no bond under our attachment law. Boyd'vS. Boyd, 2 JVott 8f M‘ Cord, 126. Judge Gantt, iu that case quotes from 4 Com. Fig. Titi Oblig. B. 3. “If a blank be signed' and sealed and afterwards written, it is no deed.”
    • The same doctrine is equally true of any other writing; apart from the law merchant. A blank signature delivered and afterwards filled up as a bill of sale for a horse or a slave, would be as much a nullity as a seal, delivered to be filled up as a bond. There is no such thing known to our law as the filling up of. blank contracts, except under the custom of merchants.
    This bond then was not transferred by deed or written assignment, was it transferred by delivery? The plaintiff is in ■ possession, but he has not shewn how he came by it. It is said to have-bcen delivered to Brown, as his agent. We might, if it-Were necessary, fairly contest the fact of Brown’s agency, for the plaintiff swears that he refused to receive the bond from Brown-and disavowed him as his agent. But waiving this oh-' jection, if Brown was the agent of the plaintiff, he was also the agent of three others.. The title, of the bond was vested in four, if it was transferred like other personal property, arid all the owners ought to have joined in the suit. 1 Chit. PI. 7.
    The only ground on which the plaintiff can sustain this suit is, that being in possession of the bond, with an assignment- in blank, he bad a right to fill it up in his own name; that is, that it’s transfer is to be governed by the custom of merchants.
    ■ We might argue against ibis position, that the instrument is a specialty; and that to alter or release, and by parity of reason, to assign a specialty, an instrument of as solemn a nature is required. The authority to make a deed must he by deed. This court however has departed from the rigour of the-ancient principle, and in the case of Howell ads. Bulkley, 1 Mott JW Cord, 24b, it was decided that a bond might be assigned by writing without seal. It is necessary however, to qualify a conclusion' which-is drawn in that case.' The case ofNoke vs. Awder, Cro.-Elis. 373, 436, is cited, for the purpose of shewing that a covenant might be assigned by paról. The case oufy decides that where a term was created by deed, which contained covenants-running with the estate, as the term might be assigned without deed, the covenants should follow by operation of law. It is rather opposed to the inference which was drawn from it.
    Admitting however, that the assignment may be made bf a signature in blank, it does not follow that it may be made by* a signature and seal. When it is filled up, it-becomes a deed, if any-thing; -and we have shewn that a deed cannot be so made. Negotiable paper- may be assigned by a blank indorsement; but-I’ apprehend not by a blank indorsement; with a seal annexed. If a signaturfe-bc delivered, for the purpose of having a note fon tbe- payment of money,. written above, it will be good when-filled up.-' Not so, if- it be under seal. The assignor •attempted tb -transfer by 'deed,, and it must operate -as a deed or not at all»-
    
      Conceding however, what the plaintiff contends for; that being in possession, he had a right to fill up the blank, and that we must resort tb the law merchant, for the-rules which are to govern the transaction; let us see how our defence will stand in that view of the case. Perhaps this is the correct view, where a bond has been transferred by blank indorsement. So the case of Howell and Bulkley seems to regard it, and it accords with what we know of the intention of the legislature. It is well known, that long previous to the passing of our statute, there was a custom, in this state, of transferring bonds as negotiable paper. In reference to this established practice, the .act was passed.
    By the law merchant, a note or bill, indorsed in blank, may be afterwards transferred by mere delivery, and any one into whose hands it may come, may fill up tire blank in his own name. On this and nothing else, rests the plaintiff’s right to sustain this suit. But had not Brown the same right to fill up the blank and bring a suit, or receive payment, when the bond was in his possession? Our case is surely not different from what it would have been if Brown had actually filled up the blank, previous to receiving payment. - It was contended, that he had not such right, and so the jury were instructed on the trial, because the blank assignment was not made with the intention of transferring the bond to him. Without insisting on the answer, that neither was there any intention of transferring to the plaintiff alone; we say that such intention was not necessary. The rule is, that he who is in possession of a negotiable paper, with a blank indorsement, is, prima fade, the owner. If he came into possession, bona fide, and for valuable consideration, he is owner against all the world', though not bona fide, non for valuable consideration, yet he shall be considered the owner, as to all who deal with him bona fide: those who mal e payment or ta>.e a transfer of the paper from him, in good faith and for valuable consideration, tdll be protected against dll the world. If the holder of a note or bill, indorsed in blank, or transferrable by delivery, lose it or be robbed of it, and it come into the hands of a bona fide holder, for valuable consideration, he may maintain an action ou it; or if' payment be made to.one who stole or found it, the person making pay-, ment will be discharged. Chit. Bills, 190. See Putnam vs, Sullivan, 4 Mass. Rep. 45-.
    
    This is established for the protection of commerce, and on the principle which has been brought so fully to the view of the court, “that if one of two innocent persons must suffer, he shall bear the loss, who enabled a third person to occasion it.”
    In our casé however, the bond was not stolen nor found by the holder; but was put into his possession and suffered to remain there for two years, by the person who claims to be the owner. It is difficult not to infer an intention that Brown should have authority to receive payment or make a settlement of the bond. If such intention did not exist, no conduct could be better calculated to enable Brown to commit a fraud. Even in England, it has been held that one mailing payment in good faith, to the holder of a bond or note not negotiable, should be protected. 1 Bos. & Pul. N. R. 103. Eq. Ca. Ab. 144, 5.
    But if the plaintiff is owner of the bond now, it can scarcely be thought that either he alone, or together with the other three persons for whose benefit the assignment was made, was . owner at the time of this payment. The bond was assigned as , a collateral security and delivered to Brown, as the agent of ''the' assignees, who refused to receive it of him.. This refusal can only be interpreted into a determination of his agency and a relinquishment of their security. During the two years that it was in Brown’s possession, none of them could have received ■ payment. But was no other person authorized to receive payment? was the bond struck out of legal existance and in abeyance all that time?
    The answer perhaps will be, that Henry, in whom the legal title of the bond was, previous to the attempt to assign, was the proper person to receive. If, so, it will be decisive of the admissibility of part of the testimony which was offered on our part and rejected. Evidence was offered of an agreement and • an arbitration, between Henry and Brown, on the subject of the property of this bond; as also that Brown and Henry had been partners, that this bond was given for a partnership debt, and that upon the dissolution, Henry had ■ advertised in the newspapers that Brown was authorized to receive all partnership debts. The evidence was rejected on the ground, as I understand it, that Brown, having sanctioned the assignment to Stoney and the rest, should not be permitted to set up a title, against them. But if their title at that time, is out of the question, we may certainly shew, that he had a title as against Henry. The agreement may have been to assign; the award may of itself have operated an assignment.
    With respect to the competency of shewing by parol, that the bond was given for a partnership debt; we may produce numerous authorities to shew that courts of law will look into the equitable interests of parties, whose names do not appear on the bond; some of'thc cases having the closet analogy to the present. Legh, vs. Legh, 1 Bos. §■ Pul. 446; Winch, vs. Keely, 1 T. JR. 619, Bottomly, vs. Broohe, (cited in the last case.) 1 Johns. Rep. 531; 3 Johns. Rep. 425. At all events, that circumstance, together with the advertisement by Henry, would have been the most material evidence that could be given, to shew the good faith of M‘Npill, and that he had cause to believe Brown authorized to receive payment. It would be entirely conclusive but for
    Brown’s testimony. The argument in favor of his competency, and that lie was indifferent in interest between the parties, seems to suppose that he guarantied nothing but the sol--veiicy of M‘Neill. But this is not so; he guarantied the ultimate payment of the bond; which includes two things; that there was-a good right of action on the bond, and that M!Neil would be solvent. If the bond had been forged, the guaranty would still have been binding. He warranted against the obligor’s having any defence at that time, and against any defence which might afterwards arise, by the act of him, (Brown.) If MNeill can defend the action, on the ground of payment to Brown, the verdict will be conclusive evidence against Brown, in an action on his guaranty, for the whole amount of the bond. If M‘NeilI should fail, he can, at most, recover but the money which he actually paid; or, if Brown tells the truth, that they were partici-pes fraudis, nothing at all.
    Brown himself seems to have beeii conscious of this, for he puts his disinterestedness on the ground of insolvency. This is a new source of competency; but before it can avail the witness, the court must determine that he will always continue insolvent.
   The opinion of the Court was delivered by

JfCr. JusitcB Gantt.

The first ground taken for a nonsuit is, that the plaintiff failed; when called on, to produce the affidavit or the oath required by law, of the debt due. By the fifth section of the act of assembly, passed in 1744, the plaintiff is required, on filing liis declaration, to make oath to the debt or sum demanded. In tills ease, it appears that on the suggestion of the attorneys of the plaintiff, that the defendant had an attorney in fact, residing in Charleston; an order was obtained that a rule should issue, directing him to plead within two months from the date hereof, or that judgment by default should go. Under this order, the pleadings were regularly made up, and the parties were at issue on the merits.

By a clause of the act of 1785, all attachments shall be repleviable by appearance, and putting in special bail, if by the court ruled so to do. (Public Taws 368.) Here then was an appearance on the part of the defendant, and he pleaded to issue. No special bail was required or ruled by the court. After these proceedings, the court think that it was too late for the defendant to take advantage of such an omission; pleading to issue amounted to a waiver of such exception. The exception might have been taken advantage of by motion to dissolve the attachment, had the plaintiff in fact failed to comply with what tie law required of him; which is not to be presumed under all the circumstancés cf the case. This motion must, therefore, fail..

On the last ground taken for a non-suit, it is certain that the assignment as filled up, seems to be at variance with the proof offered, as to the right intended to be transferred. The testimony of Gen. Geddes is express, that the bond was to be assigned as a collateral security to Fitzsimons, Stoney, Williamson and Cohen; and the answer of Mr. Stoney, in equity (before alluded to) is equally express, that it'was not to be for his-exclusive benefit. But although others, besides Mr. Stonejy were interested in this bond, which was to be lodged as a collateral security, for thei.r joint benefit; still from the testimony of General Geddes, it appears that the assignment was left in blank, for the parties to fill up as they pleased. There can be ■*10 doubt that an action upon a contract, either express or implied, by parol or under seal, must be brought in the name of the party in whom the legal interest is vested; and that in all eases, if it appear on the face of the pleadings, that there are-■Other obligees, covenantees or parties to the contract, who ought tobe, hut are not joined in the action, it is fatal on demurrer or on motion in arrest of judgment; and though the objection may not appear on the face of the pleadings, the defendant may avail hknself of it, either by plea in abatement, or as a ground of non-suit on the trial, upon the plea of general issue, 1st Chitty on Pleading, 3. 7. Notwithstanding such is the law, still the court think that as to such an endorsement as was made upon this bond, it is competent in the holder to fill it up as be pleases.

Op the ground taken for a new trial, 1 shall briefly comment: first, upon the admissibility of Joshua Brown, as a witness, and conclude by referring to the nature of this assignment, and wbat took place under it.

Mr. Brown was certainly an interested witness, and such as ought to have been excluded. He had guarantied the payment of this bond to Henry, and his assigns; consequently in tlie event of its not being recovered From M'Neill, he, Brown, would on his guarantee, have been liable to the assignee of Henry, for the amount of the bond. By fixing, therefore, a responsibility upon M‘NeilI, he would at the same time free himself from the liability produced by his special guarantee. It is not denied hut that this circumstance, if it stood alone, would have rendered him incompetent; but it is urged that he is also liable to the same extent to M‘Neill, on the receipt and discharge given to him on the bond, and tbat this equal liability to tbe parties litigant, went to remove the objection of interest and rendered him competent. But if what he has stated be a fact, it may well be questioned whether Brown.would he liable in any manner to M‘ Neill, who would in such case have made himself particeps crhninis; and in no event could he he liable to M!Neill, for morethan he received. So that it follows very clear-' ly that Brown was altogether interested in Stoney’s recovery,- and, therefore, was in law an incompetent witness.

As to the assignment made by Henry, in blank, accompanied with the solemnity of a'seal and delivery of possession fp Brown, of the bond, no. other correct inference can be drawn from it, but that he, Brown, ipso facto, became in legal contemplation the assignee and owner of the bond, and that an obligor making payment, without fraud, to such holder and ostensible assignee, is and ought to be protected against the real owner, whoever he may be. The circumstance of tire special guarantee upon the back of the bond by Brown, would, in conjunction, with the possession of the bond in him, strengthen the presumption of his ownership. What other fair inference could be drawn, but that in consequence of his liability, he had taken np the bond and made it his own; and when we add thereto, the circumstance of the assignment in blank under seal, no possible doubt could remain on the mind of any man, but that Brown was not only the ostensible but the real and bona fide owner of. the bond, and might do with it as he pleased. It is certain that McNeill, the obligor, had no hand in placing the bond in the possession of Brown, nor had he any in its remaining with him for so long a space of time as two years. No person, therefore, concerned in interest, can with any color of propriety complain, if under circumstances so well calculated to deceive, a debtor has, when called on for payment, discharged Ins obligation to such holder and ostensible owner.

The filling up the blank in the name of Mr. Stoney, at a period long subsequent to the settlement made with Brown, can in no manner do away the legal eflect and operation of the payment which was made; a payment and discharge entered at the time on the bond, and which, if performed with good faith; •cannot be called in question.

I will only add one further remark in respect to the rejection of. Mr. Robinson’s testimony. This evidence ought, in my opinion, to have been received. If it could have proved that this bond was the copartnership property of Henry and Brown; that •public notice in the papers bad been given, that all debts due to them were transferred to Joshua Brown; these facts, conjoined with the endorsement in blank by Henry, and possession of the bond by Brown, would certainly have established as strong a case to support the settlement made by M'Neill, as could possibly be presented to the view of a court and jury. Independently, however, of. this view, lire endorsement in blank by Henry, and possession of the bond by Brown, were sufficient in law to authorise Brown, as ostensible owner, to'adjust and settle with the obligor, ■ M'Neill; as lie might think proper. The court are, therefore, c-f opinion that a new trial should be granted:

Johnson, justice, concurred.

'JYoit, justice

— I concur in the opinion which has been delivered by my brother Gantt in this case, for the following reasons. The affidavit which the plaintiff is required to make at the time of filing his declaration, is not the foundation of his action. It is only intended for the benefit and security of the defendant. lie may renounce it, therefore, if he pleases, and '■did so by pleading to the action.

I do not think that the blank endorsement, operated as an actual transfer of the bond; but it gave an authority to the holder, to fill it up as ah assignment to whomsoever he pleased. The assignment to Stoney, therefore, was well enough, and although there may have been other persons interested in it, it did mot lie in the mouth of the defendant to take advantage of it. Every holder, while it remained blank, was prima facie the owner, and had had a right to receive the money arid give a discharge. The defendant, therefore, had a right to consider Brown the owner, as long as lie had the possession of the bond with a blank endorsement upon it. Whether it became a deed or not upon being filled up, is not at all material. It certainly was not before, and in any view the effect would be precisely the same, as long as it remained blank; and parol evidence might- be-offered to show when the assignment was filled- up, in the same manner as it may be received, to shew when a deed was delivered, contrary to the face of the instrment itself.

Evidence to rebut the ownership arising from the possession of the bond, might be, and actually was receivéd- in-this case; but evidence in reply ought also to have been admitted,to show that Brown had an interest in it and how that interest arose; ánd that evidence, therefore, was improperly -rejected. For, although a bond is not a- negotiable paper,’ yet an assignment transfers an equitable interest, and the interest of 'the--as-signee will be respected in a court of law. I am, therefore; of opinion, that a new trial ought to be grafted on that -ground,

I am also of opinion, that Brown was improperly admitted as a witness. He had a direct and manifest interest in the 'event of the cause. He had guarantied the payment of die bond: He was, therefore, ultimately responsible, in case the plaintiff should fail to recover it of M‘Neill; and establishing M'NelFs liability, had a direct tendency to exonerate himself. A judgment in favor of BP Neill would have been conclusive evidence against him, and a judgment against M‘Ncill, with a satisfaction upon it, would be equally conclusive in his favor. I think, therefore that he was an incompetent witness, and that a new trial ought to be granted.

Huger, Justice concurred.

Bay, Justice

— In this case, I differ in opinion from the one just delivered, as I am strongly impressed with the idea, that substantia] justice has been done by the jury, in the verdict they have, found. This was an action by an assignee of a bond against one of the co-obligors, and the jury have-found for the plaintiff on the assignment, and the question now is, shall this verdict he set aside, and a new trial granted or not? And in my opinion there are nq legal grounds to support this motion, and all the confesion-und lengthy arguments whiefe have taken place on the occasion, have been owing to an attempt on the part of the defendant to introduce extraneous matter into this transaction, which has nothing to do with it, and to suppress testimony which was clearly admissible by the rules of evidence; as I trust will clearly appear by a brief examination of the case.

The bond in question, was given to Alexander Henry, by :the defendant and William and John Walton, for $25,000, oh; which.there is a regular assignment in the following words. “I. assign over the within bond and all my right and interest therein to John Stoney his executors and administrators, for value received.”

(Signed) A. Henry.

From this it is unquestionably evident, there was a regular transfer of this obligation and the money mentioned in the corn-dition of it, to Mr. Stoney, the assignee, which to all appearance is as fair and as simple a transaction as well could come before a court of Justice.

But it was said at the trial, that this was a partnership business, and that the bond was given on the account of a form*' er copartnership which had subsisted between Alexander Henry* and Joshua Brown, and testimony was offered to be given, to Shew that it was given on this former copartnership account, and consequently that Joshua Brown had a power over it and' was authorized to receive the amount, so as to defeat Mr. Stoney of his plain and obvious right of recovery under and by virtue of the assignment. Here then was a manifest attempt to alter and vary this bond, a specialty under seal given to Alexander Henry in his own private right, by shewing that it was given for a copartnership concern for the use of Brown and Henry. This was surely an attempt to alter and change thé nature of a deed' in a most material part of it, for it went to take away a plain and obvious right from the obligee of the bond and his assignee, and give it to another who was a stranger to the transaction, contrary to one of the plainest and best established rules of evi- ■ deuce in our whole legal system; viz: that parol testimony ought • never to be admitted, to alter or vary or to contradict-the face of a deed or other instrument under seal. Lord Mansfield has laid it down in the broadest and most unqualified terms, that there never was heard a case in which parol testimony or evidence was admitted to annul or vary substantially a specialty, Loft-459. This doctrine is not only laid down by Lord Mansfield and the whole court in Loft, but the same principles are held by all the elementary writers on the law of evidence upon the subject, and this is the best answer I can give to all the cases quoted and relied upon by the counsel, on this part of the case; and particularly by one of the gentlemen, who conceded that one could not plead that a bond was given to a copartnership when it does not appear upon the face of it to have been given for that purpose, but there was nothing to prevent evidence being given of it. I am, therefore, of opinion, that this doctrine of offering parol testimony to do away the force and efficacy of a ' specialty or deed under seal, executed and made under the usual solemnities, is utterly inconsistent with all the rules of evidence with respect to specialties, and that the judge of the circuit . 'Court acted correctly and legally in rejecting it and all thg. collateral consequences which went to impugn the face of the bond itself., ,

2d. The next important inquiry in the case, is, whether-1 -this, assignment.on the back of this bond to Stoney, was good and valid or,not;,and against its validity it was said, that it was originally a blank endorsement and transferred no right, or if it* did, that the right was assigned to John Stoney and three others, and.not to John Stoney alone; consequently that he could sup* port no action upon the assignment under the late act of assembly. Upon this point, all the old and antiquated authorities of' the common law, have been quoted, without any reference to thé situation and convenience of this country, and they have been arrayed against the beneficial usages of S. Carolina, for nearly, half a century past, to facilitate the interchanges of choses in action, among the citizens of this country, in their various transactions. with- each other. In the case of Parker and Kennedy, SO'long; ago, as the year 1794, it was stated and admitted that bonds, to the amount of several hundreds or thousands of pounds sterling, had passed away from man to man in the various transactions with each other since the revolution by blank endorsements on the back of them. That in sales and purchases, they had served the^ uses of the country as a kind of circulating medium, which relieved the distresses of the citizens exceedingly * at a period when the cash had been drained out of the state or ' exported to foreign countries, and that in these transfers the usual and common method of passing them was by a blank endorse- - ment on the back of the bond; 1 Bay, 399; and chief justice-Rutledge, in his opinion, delivered on that occasion, observed, that the intent and design of such blank endorsement was to enable the holder to fill np the assignment and to Sue for and recover Jhe money .to his own use; and of the same opinion were the whole court; although two of the judges went further, and considered this blank assignment like an endorsement on a bill of exchange,, and made.thc endorser .liable upon the failure-of the-obligor; but-in the authority .of the holder to fill up this blank endorse-ment in his own name, and to sue and recover the money to his own use, the judges all agreed. In all' these cases, however, as bonds were not payable to order, the holder was obliged to sue. ip the name of the obligee, which-was often attended with serious' inconveniences. To- remedy all which inconveniences, the act of 1798, was passed four years afterwards, authorizing'assignees of bonds to sue and recover in their own names; ánd the preamble of this act recites, “that whereas many inconveniences have been experienced from assignees of bonds, notes or bills, • not payable to order, or not negotiable, being compelled to bring suits for the recovery of monies due thereon in the names of the obligees of said bonds, or payees of said notes Or bills.’* For remedy, it is declared that the assignees of bonds and notes, may bring suit in their own names Sic. Sic. ' The, decision of the above case, and the opinion of the judges upon this point in 1794, and the recognition of the same principles in the preamble of the act of 1798, added to the universal custom in South Carolina, and the general convenience of the inhabitants thereof, are sufficient in my mind to form a part of the common law of South Carolina, upon the subject at -this day, and to render obsolete and inapplicable, all the old doctrine of the English law to the contrary notwithstanding. Highly as J value the old common law, and have always estimated it, I am not such a slave to its principles as to consider it like the laws of the Modes and Persians, unalterable. Times and circumstances alter the situation of the world, and the condition and conveniences of mankind render alterations necessary, and accordingly improvements have been made in the common law in England, from the time of Lord Coke, down to the present day; and surely the independent states of this union, have as good a right to amend and improve their common law systems as the people of England have. To conclude upon this assignment or endorsement, as presented to the-court, after it was filled up, there was no averring to the contrary; the court was bound by it and could not travel out of it, and it would have beén exceedingly improper to have suffered any parol testimony to have contradicted the assignment, as already mentioned ip regard to the face of the bond. But admitting for argument sake, that it was intended for the joint benefit of John Stoney, Williamson, Cohen and Fitzsimons, was-there any thing improper or illegal in the consent of the threeTatter, that the bond should, in order to simplify the transaction, be assigned to Jtsliii Stoney,.- for their joint benefit? Surely1 itot; That, howeVeri Was a matter for their consideration, not for the court, whcii the blank was filled up in his name. The court could not go into ihc investigation of that matter, in a trial at law, between the assignee and a co-obligor of the bond.

3d. The guarantee of Brown upon the bond. By what •authority Joshua Brown made this guarantee, or under what obligation he was to make it, I am at a loss at'this moment to conjecture, after all that has been said about it.- He was certainly no party in the transaction here, between the co-obligors and Alexander. Henry; he was, from aught that appears upon the face of the bond, an utter stranger to it; 1 am, therefore, constrained to consider it as a voluntary and unnecessary undertaking on his part.

Then as to the receipt on the back of this bond, by Brown to M'Neill for the $8514, the one-third of the principal of the bond, and the release to M£Neill from his responsibility: By what authority, I would ask, did Brown receive this money -and give this discharge; which, if lawful, was a release in law to the whole of the co-obligors? The authority did not come from Alexander. Henry, the obligee of the bond; for he has transferred to Stoney, and it was not pretended that John Stoney ever gave him any such authority to receive a cent of it-If then he was neither authorised by Henry, the obligee, nor by Stoney, the assignee, it was an unauthorised transaction between. Brown andM-Neill, a- collusion between them to deprive the plaintiff, Stoney, from his recovery, or to throw funds unwarrantably into the hands of Brown, at the expense of Stoney; and what proves this collusion to my mind, is, in the first place, the. evidence of General Geddes, ■ who swore that when he delivered this bond to Brown, as the agent of Mr. Henry, it was delivered in trust, and for the purpose of carrying to Mr. Stoney; and the receipt given by Brown, for it is to that effect; which give him no power over the bond, further than to carry and deliver it up to Stoney, and with respect tp M'Neill, Brown proved, after he was sworn, that when M‘Neill paid the money to him, he at first objected, as having no right to receiye. it or power over the bond, and that he, M‘Neill, replied that he did not cure a damn about it whether he had pow-<?r or not, all he wanted was for Brown to sign the receipt on the bond. From this plain, simple state of facts, it appears to me that the jury acted judiciously in disregarding the receipt of Brown on the back of the bond, and in considering it as a fraud on the assignee. As to the circumstance of Brown’s keeping the bond in his hands for two years, that did not alter the original trust when the bond was delivered to him, an iota.. It gave him no authority to receive the monCj and discharge the defendant; and if he had kept the bond in his possession to the present day, he would still have remained a trustee for Mr. Stoney.

5th. Brown’s testimony. As to the admission of Brown as a witness. It appears to me that he was not called to defeat his own guarantee. (If it was legally entered into.) He admitted it; and, therefore, was called upon to swear against his own interest, and, in this respect, against himself; and it is a rule of law; fha a witness is not good for himself, but is the best evidence against himself; 1 Esp. Rep. 21. But the great object oF Brown’s testimony was to shew a knowledge of the transaction between himself and M!Neill, and that the latter knew that the bond had been transferred to Stoney, at the time he persuaded Brown to receive the money and give him a discharge, and that he, the defendant, was a particeps criminis. On the other hand, it was contended that Brown had such an interest in this case as disqualified him from being a witness, and therefore, that the court erred in permitting him to be sworn on the trial. On the question of Brown’s interest, it is necessary to take a short view of the relative situation of both parties. M'Neill was one of the obligors of the bond, and Brown the voluntary guaranty of the payment, in case of the insolvency of the obligors. M'Neill says, the bond is paid, legally paid' to Brown; according ta. this, .Brown is discharged from his guarantee. Yet, when Brown is called upon as a witness to prove this payment, he is an interested witness Upon this guarantee, and because he is about to swear that the bond has not been paid off, whereby he will revive his ovm responsibility as a guarantee, (thereby fixing the debt upon himself,) he ought to be excluded. The fallacy of the argument is so apparent, that it is only necessary tp state it, to shew its inconsistency. It creates and destroys, mio flatu. But is said, it is foing the debt upon M‘Neill, this. however, does not fix the debt upon one more than the other, and he is still swearing against his own interest, for M‘Neill may • not pay the debt after Brown proves it to be due, and then he must be responsible. And this brings me 6thly, to consider what kind of interest will exclude a witness from giving testimony.

It cannot be necessary at this time, to turn to many au* .thorities to prove that contingent and remote interests will not exclude a man from being a witness. Courts of Justice at this day incline to admit witnesses, seeing it is better to leave them testimony to a jury than to exclude, where their, interest is not immediate and direct. In, Brent and Baker, 3rd Term Rep. 32, Lord Kenyon quotes Lord Mansfield, as having laid it down, that the old cases on the competency of witnesses have gone on very subtile grounds: But of late years, the courts have endeavored as far as possible, to let the objection go to the credibility rather than to the competency of a witness. Lord Hardwick, in the case of King, vs. Bray, says, that whenever a question of this sort is raised, he was always inclined to restrain it to the credit rather than the competency of the witnesses; and Lord Kenyon himself says, he concurred ijx the above rules, and added that It was better to receive the evidence of the witness and submit it to a juiy, rather than to reject upon the ground of incompetency; and Judge Buller iu page 36, approved of what was said by Lord Harwicke, that it Was better to lean against the objections to the competency of a witness and let them g'O to the credit of the witness; for says he, the true line is this, will the witness gain or lose by. the event of the cause? and if the verdict could nofbe given againsthim in any other case, he ought to be admitted. mGrose, J, said the question was whether the witness was or was not interested in the cause; and if he is not, then he ought to be admitted. Then again, as to a remote or contingent interest. In Term Rep. 164, the court said, that the bare possibility of an action being brought against a witness, is no objection to his competency, ]n that case, a security to .an administration bond, was admitted qs a witness for the administratrix; a case as strong, if not stronger than a guarantee, being a witness in a case of his colt lateral, undertaking.. Now it: appears to. me that . Brown wae only to be liable on his guarantee, in default of M‘Ncill’s solvency. It was, therefore, that kind of remote interest which did not exclude him from being a competent witness,’ and the judge below could not legally exclude him, but on the contrary, very properly permitted him to he sworn as a witness. The last objection I shall observe upon, is, the objection to the want' of an affidavit of a subsisting debt, filed with the declaration. If this objection was a solid and available one, the defendantought to have demurred for want of it, which would have struck at the cause of action, but as he did not do so, and pleaded is-suably to the declaration, no less than four separate pleas, and concluded to the country in them all, I am of opinion, it is too late to take advantage of it after verdict. Upon the whole, a£- • ter considering all the grounds, I am of opinion that there are no legal reasons for a new trial and that the rule ought to be discharged.

Grimke, Petigru and Harper, for motion.

Hunt and Prioleau, contra.

ColoocJc, J, concurred in the foregoing opinion of Justiep Bay,  