
    Thomas Ogier v. Charles R. Holmes, Administrator of Mary Deas.
    Charleston,
    March, 1830.
    A surety of a deceased debtor is admissible as a witness to disprove a demand against the estate of his principal: and it makes no difference, that he believes the estate to be insolvent, and that the demand, which he is called to disprove, is of superior degree, and will exhaust the assets. His interest to increase or preserve the fund, out of which the debt, for which he is surety, is to be paid, is not that certain, direct, and immediate interest, which affects the competency of a witness.
    Tried before Mr. Justice Richardson, at Charleston, January Term, 1830.
    ® ^au3t’
    ^ct 0j. P. L. 286. ‘
    
    This was an action of debt on bond, brought by the plaintiff, in his own name, as assignee of Thomas H. Deas, the original obligee. Plea, usury. The defendant called Thomas II. Deas to prove, that he was only a nominal obligee, and in fact the mere agent of defendant’s intestate, in which character he had negotiated the bond with the plaintiff, at an usurious discount. Being examined on his voire dire, he stated, that he was the first of three indorsers on a promissory note of the intestate, on which the Bank of South-Carolina had recovered judgments against himself, and the intestate, in her life time ; that he believed the estate to be insolvent, the only property, which remained, being a plantation, called Thoroughgood, which was mortgaged to secure the bond now in- suit; and that if the plaintiff recovered, there would probably be no assets to pay the judgment of the bank; but if the defendant succeeded in this action, the judgment, which was the next lien after the mortgage, would in all probability be paid out of the estate. The competency of the witness was then objected to, on the ground of interest, and the objection was sustained by the Court.
    He was then offered as a witness under the usury act; upon which the plaintiff offered to deny the usury on oath, and was accordingly sworn. He testified, that he knew nothing of the origin of the bond, but that it was placed in his hands, as a broker, for sale, by Mr. Deas, the obligee, who informed him that it was founded on a good transaction; that his instructions were to sell it at 10 per cent, discount, but that he was unable to obtain that price for it, and subsequently purchased it front Mr. Deas at 8 per cent.
    Several questions were made at the trial, which, under the disposition made of the case by the Court of Appeals, it is unnecessary to specify. The jury found for the plaintiff; and the defendant moved to set aside their verdict, and for a new trial, on the ground, amongst others, that Thomas H. Deas was a competent witness at common law, and ought therefore to have been admitted to testify, in exclusion of the plaintiff.
    Holmes, for the motion.
    There is no ground for the analo- ' gy, which, it has been contended, exists between the case of a surety and that of a creditor. The interest of a creditor to increase the assets is certain, that of a surety contingent only; and a contingent interest does not affect the competency of a witness. 2 Stark. Ev. 745.
    In Storer v. Bulkley, 1 Day, 531, it was held, that a mortgagee was a competent witness for the mortgagor, in a suit relative to the land. And in Carter v. Pearce, 1 T. R. 163, a surety to an administration bond was admitted to prove a tender by the administrator.
    These cases are directly in point; and many others, closely analogous, might be cited. Unless the interest is direct and certain, the objection goes only to the credit. The principle, on which witnesses are admitted ex necessitate, extends to all such cases. Bent v. Baker, 3 T. R. 27.
    Dunkin, contra.
    
    It seems to.be conceded, that a creditor is not a competent witness to increase the assets of an insolvent, or bankrupt estate; Craig v. Cundell, 1 Camp. SSI. Adams v. Malkin, 3 Id. 543. 2 Stark. Ev. 215. 770. and it is impossible to d stinguish the case of the witness, who was rejected, upon any principle. It is said, that his interest is contingent; but it, is obvious, that it is contingent only upon the event of this suit. If the plaintiff fails, the witness will be relieved from his liability; if the plaintiff succeeds, it is admitted, that the estate is insolvent, and the witness will remain liable to the judgment of the bank. His interest is therefore less remote, and in every way stronger, than even that of the creditor. •
   Colcock, J.

delivered the' opinion of the Court.

¥e express no opinion on the merits of the case ; but are of opinion, that a new trial must be ordered, on the ground, that a witness, who was competent, was rejected. It would seem that the doctrine on this subject ought to be well understood, after the repeated decisions which have been made by this Court; but although it is no difficult task to lay down the rule, there seems to be great difficulty in the application of it in individual cases.

The rule of former times was found too rigid, and it has of late been considered more safe to admit the evidence where there is doubt, than to exclude it altogether: for the rejection is peremptory, and absolute ; but if the witness be received, it still remains for the jury to consider, what credit is due to his testimony, taking into consideration all the circumstances of .the case, and the motives by which he may be influenced. “ Hence,” says Mr. Starkie, “ it is the inclination of the Courts, that objections of this nature should go to the credit of the witness, rather than tó bis competency.” ' 1 Stark. Ev. 87. The same writer, in another part of his treatise, lays down the rule to be, that “the interest to disqualify must be some legal, certain, and immediate interest, however minute, in the result of the cause, or in the record, as an instrument of evidence, acquired without fraud.” 2 Stark. Ev. 744.

In the case before us it is pot pretended, that the witness has any direct interest in the event of the causé: but it is Urge'd, that he is the first indorser of the defendant’s intestate on a note due to the bank, and that if the plaintiff recovery, his debt, being secured by a mortgage, will exhaust the assets, and the witness may be called on to pay the note; whereas, if the verdict in this case is for the defendant, the note will be paid out of the estate, and the witness relieved from his liability. Now it is no difficult task to shew, that these circumstances do not place the witness in either of those predicaments, by which he would be excluded. He gains nothing by the suit itself; that is, he cannot participate in the verdict. The record could never be given in evidence iff any suit which might be brought upon the note, which he has indorsed. No liability is created by the verdict, for if this suit had never been heard of, he would still have been liable on his indorsement. Then as to the other facts s the estate is said to be insolventbut how is this Court to ascertain that] Can an issue be made up to try the fact in this collateral way ] It is also contended, that the witness is in the situation of a creditor of the estate; but it does not follow that one is the creditor of an estate because he has indorsed a note, which he may be called on to pay. He may never pay the debt, and until he does, he cannot be said to be a creditor. He consequently was not swearing to increase a fund, out of which he is to be remunerated. Many things may occur to prevent his paying the debt, for which he is liable. It is á mere liability, and very far from that certain, direct, and immediate, interest, which excludes a witness.

In the case of Kingston v. Grey, 1 Ld. Raym. 745, upon issue taken ou a plea of plene administravit, it was held, that a bond creditor, who had been paid, was competent to prove his debt, as well as payment of it, although, if the bond were not authentic, and the debt not due, he would have been liable to refund; for he was not interested in the event of the suit, nor could the record be evidence in any action which might be brought against him. The reason of that case applies directly to this. The witness was competent at common law, and should have been sworn.

Motion granted.  