
    Green B. Marshall v. Augustus G. Nagel and Waddy Thompson.
    Columbia,
    Dec. 1829.
    An attorney, who had given a receipt for a sum of money paid to him on account of debts due to distinct creditors, without specifying in what order the sum paid was to be applied to the payment of the debts, is a competent witness to prove in what manner the debtor, at the time of payment, directed the application to be'made.
    If a debtor pay a sum of money on account of distinct debts due to different creditors, to a common agent of all the creditors, and give no direction as to the order in which the money is to be applied to the debts, the agent may make the application according to his discretion, and the debtor will be bound by it.
    The attorney on record cannot, without special authority, execute a valid release to one who is liable over to his client, in order to render him a competent witness.
    In actions ex contracta a defendant cannot, by withdrawing his plea, render himself a competent witness for his co-defendant, even if duly released from all liability over to the latter.
    Tried before Mr. Justice Gantt, at Columbia, Fall Term, 1829.
    The cause of action and the defence relied on in this case are sufficiently set forth, at. page 266, ante, in the. report of an appeal from a verdict for the defendant at a former trial. At the present trial, Col, Simkins was introduced as a witness for the plaintiff, and testified, that the defendant Nagel agreed, at the time when the money mentioned in the receipt was pa'id by him, that it should be applied in the first place to extinguish Cartwright’s execution; and that the residue only was to be applied to plaintiff’s note. The competency of this witness, was objected to on the ground, that he was not admissible to contradict his own receipt; but the objection was overruled by the Court.
    ¶/he defendant’s counsel then proposed to execute a release from the defendant Thompson to his co-defendant Nagel, and to withdraw the plea of the latter, and then to examine him as a witness. The presiding Judge held that he would not be .competent even under these circumstances.
    
    The jury found for the plaintiff, allowing the defendants credit for no more of the sum mentioned in the receipt, than re-j»ained after satisfying Cartwright’s execution.
    
      The defendants now moved to set aside the verdict, and for a new trial, on the grounds : 1. That the evidence of Col. Sim-kins was incompetent, and should have been excluded : 2. That the execution of the release, and the withdrawal of his plea, rendered Nagel a competent witness, and he should have been examined.
    
      Vide Johnson v. 13a¡t. s 2 Bailey, 183.
    Preston, for motion.
    Chappell, contra.
    
   Colcock, J.

delivered the opinion of the Court.

On the first ground I entertain no doubt. Whether the witness be viewed as an attorney, or common agent, he was competent. Where the interests of third persons are concerned, those who may be ultimately hable, must ex necessitate be admitted as witnesses. Here the oath of the witness did not shield him from an action by any of the parties, to whom, under any circumstances, he may have been liable. This .verdict could not have been given in evidence in any suit, which might be brought against him for a misapplication of the money, by Nagel, or any one else, who could have maintained such a suit.

But if Col. Simkins had been incompetent as a witness, it would not have been a sufficient ground for a new trial ; for m the absence of proof that the debtor had directed how the money should be applied, he had an undoubted authority to apply it as he thought proper. Nor can the application be considered as an improper, oran injudicious one, for Cartwright had a judgment against Nagel, and Marshall had only commenced an action. It was reasonable, therefore, to suppose, that the debt- or himself would extinguish, in the first instance, that debt, for the payment of which his property might be at any moment sold, or his body arrested.

On the second ground, it is, perhaps, not necessary to decide, whether under any circumstances Nagel, one of the defi.nd-ants, could have been admitted as a witness. It is contended, that being released by rl hompson from any responsibility to him, lie was competent, and it is said that the release offered was sufficient. Now admitting the first proposition to be true, it is clear, that the release given by an attorney for bis client, without liis authority, is not binding on him. The release then, being insufficient, it follows that Nagel was not competent, even on the ground assumed by his counsel. But with a sufficient release from Thompson, his co-defendant Nagel was not competent. He would have been swearing off his own liability as well as that of Thompson. There was no judgment against him. 1 am aware that there are some cases, in which when the liability of a defendant is fixed, he may be admitted to prove that his co-defendant is not liable; such as actions in tort, where if one defendant has suffered judgment to go by default, he may give evidence that a co-defendant is not chargeable. 3 Stark. Ev. part 4. 1063. But these, I take it, are rather exceptions to the general rule, which is one founded in some measure on policy, to prevent perjury. 3 Stark. Ev. part 4. 1061. 2 Camp. 334. note. Under the circumstances of this case, however, Na-gel was not competent.

Motion refused.  