
    *Fant & als. v. Fant, Who Sues, &c.
    April Term, 1866,
    Richmond.
    1. Evidence — Bond—Assignee as Witness — Case at Bar. —The assignee of a bond transfers it for value, without assignment, but undertakes verbally to guarantee it if the transferee calls upon him to do so, to enable him to dispose of it. The transferee disposes of the bond without calling for the guaranty. The assignee is no longer liable on the promise to guarantee, and is not therefore an incompetent witness for the holder against the obli-gors.
    2. Same — Same—Same—Same.—There being a plea of usury in the transfer of the bond by the obligee to the assignee; if he transferred it with the knowledge that th ere was such usury, he was then guilty of a deceit, and the right of action arose upon the transfer ; and if time has barred that action, the assignee is not therefore an incompetent witness for the holder of the bond against the obligors.
    This was an action of debt in the Circuit court of Fauquier county, brought in the name of E. I*. Fant, for the benefit of A. Schumaker, against John Iy. Fant and six other persons, upon a bond for ten thousand dollars, executed by them to the plaintiff. The bond bore date the first day of September, 1846, and was payable in five years, with interest from the date, payable semiannually. The case was before this court in 1859, and in March of that year the judgment which had been recovered by the plaintiff was reversed, and the cause sent back for a new trial.
    On the former trial the issues were upon the pleas of “payment” and “usury,” and after the case went- back to the Circuit court, the defendants filed pleas of non est factum.
    The cause came on again for trial in April, 1860, when *the plaintiffs offered in evidence the deposition of William D. Miller, to which the defendants objected, and moved the court to exclude it on the ground that it appeared by the deposition itself that Miller was an interested witness. But the court overruled the objection, and admitted the deposition; and the defendants excepted.
    The facts as taken from the deposition are, that Miller being willing to aid Edward B. Fant to commence business, agreed to advance him $10,000 for five years, upon Fant’s giving him satisfactory security; and this advance was to be made by Miller’s giving him his note payable in six months. In pursuance of this arrangement Fant assigned to him the bond sued upon, and Miller gave him his note at six months, which he paid at maturity. On the 2d of September, 1847, Miller; to aid H. H. Williams, who was then in difficulties, transferred the bond to him for other securities,* and undertook verbally to guarantee the bond to him if he should call upon him to do so; but Williams disposed of the bond to Schumaker without calling upon Miller for his guaranty; and none was ever given. Upon the question of usury Miller states emphatically, that he only received six per cent, interest upon the bond; that interest commencing from the payment of his note, and terminating when he passed it to Williams; and he states in detail the mode in which the interest was adjusted between himself and Fant.
    . The jury found a verdict for the plaintiff for the amount of the bond, with interest thereon from the first day of September, 1850, until paid; and there was a judgment accordingly: and thereupon the defendants applied to this court for a writ of error to the judgment; which was granted.
    Griswold, for the appellants.
    Daniel, for the appellee.
    
      
      Fraud — When the Statute Begins to Run. — In Thompson v. Whitaker Iron Co., 41 W. Va. 585, 23 S. E. Rep. 799, the court said: “Callis v. Waddy, 2 Munf. 511; Rice v. White, 4 Leigh 474 ; Cook v. Darby, 4 Munf. 444; and Fant v. Fant, 17 Gratt. 14, say that the statute runs from the act of fraud.”
    
   *JOYJSTES, J.

The judgment in this case is founded on a bond for $10,000, dated September 1, 1846, and payable five years after date, with interest from date, to Edward B. Fant or order. On or about the 15th of September, 1846, Fant assigned the bond to Miller for value. Miller held the bond until the second day of September, 1847, when he transferred it for value by delivery, but without endorsement, to Williams. Williams subsequently assigned it to Schumaker, for whose benefit the present suit was brought. The pleas were payment, usury, and non est factum. The deposition of Miller was read in evidence on behalf of the plaintiff, though objected to by the defendant on the ground that it showed upon its face that Miller was incompetent to testify on the ground of interest. The correctness of this decision is the only question before this court.

There would seem to be only two grounds upon which Miller’s competency can be objected to, and I do not think that either of these can be maintained.

1. When Williams obtained the bond from Miller, his objec* was to raise money upon it to relieve his embarrassments, and Miller agreed to give him a guaranty of it if he should demand it. The object of both parties in this arrangement, as may, I think, be fairly inferred from all the facts, was to enable Williams to effect a negotiation of the bond on satisfactor3r terms. If Williams could not effect a satisfactory négoti-ation without Miller’s guaranty, Miller was to give his guaranty when demanded. But if the negotiation should be effected without the guaranty, then Miller was no longer bound to give it, because the object for which alone it was to be given had been accomplished without it.

I think, therefore, that when Williams succeeded in passing off the bond without having called for Miller’s guaranty, he had no longer any right to call upon Miller *to give a guaranty; and such I infer from Miller’s statement was his un-derstandng. It follows that as Miller was no longer subject to any liability on account of this agreement with Williams, he was not incompetent on this ground.

2. It appears that the controversy under the plea of usury had reference to the transaction between Eant and Miller, in which the bond passed from the former to the latter. If there was usury in that transaction, therefore, Miller was cognizant of it; and when he passed the bond to Williams, as one to which he had a valid title, he was guilty of a deceit which made him liable to Williams, although he did not endorse the bond. But if Miller was liable on this ground, the right of action against him occurred at the time the deceit was practiced (Rice v. White, 4 Leigh 474), and was barred by the statute of limitations long before his deposition was taken. And as a liability against which a witness may protect himself by a plea of the statute of limitations, will not disqualify him (1 Greenleaf Évid. $ 430), it follows that Miller was not incompetent on this ground.

I am of opinion that the judgment should be affirmed.

MONCURE, J., concurred in the opinion of Joynes, J.

Judgment affirmed.  