
    Ash and others administrators of Craig against Patton administrator of Patton.
    
      Monday, June 9.
    Letters written b) the defendant’s intesiau* lo the plaintiff's intestate and the plaintiff jointly, and to thi plaintiff separately, which seemingly indicate a joint debt, but not concl naively, ar«' admissible in evid< nee in a su<t for money paid bythe plaintiff’s intestate, to the use of (he defendants intestate.
    An administrator who was the intestate’s clerk, is a good witness in a suit in which he is plaintiff, to prove a book to be thi book of original entries of his intestate, and that he himself made certain original entries in that book, if it do not appear that there is any person living, who can make that proof, and the other clerks of the intestate are dead.
    In order to remove the objection to a plaintiff’s evidence, on the ground, that :he is liable for costs, it is necessary, that not only the costs which had accrued, but those which might accrue, should be paid, and that the plaintiff should stipulate, that in no event, should these costs be refunded.
    In Error.
    ERROR to the Court of Common Pleas of Northumberland county.
    This was an indebitatus assumpsit, brought by James Ash and others, administrators of James Craig, deceased, against John Patton, administrator oí John Patton, deceased. The declaration contained counts for goods sold and delivered, money had and received, money paid and expended, and money lent. The pleas were non assumpsit, payment, and non assumpsit infra sex. annos.
    
    On the trial in the Court below, James Ash, the administrator of James Craig, deceased, and one of the plaintiffs in this suit, was offered as a witness on behalf of the plaintiffs, to prove, that certain books produced, were the books of original entries, of the intestate, Craig; that some of the items in those books were in the handwriting of James Craig; some in the handwriting of the witness James Ash, who had made them as clerk of James Craig ; that other entries in these books were made by other clerks of James Craig in his lifetime, who were now dead. James Ash, before being offered as a witness, had released to J. B. Guenat, for the use of himself, and the other legal representatives of James Craig, deceased, all monies which he might, or could receive, by means of this suit, either as commission, or otherwise. To this wittíess the defendant objected, and the Court rejected him. The plaintiffs thereupon tendered a bill of exceptions.
    The plaintiffs, having paid all the costs in this suit, offered James Ash again as a witness, for the same purposes as before. But he was again rejected by the Court, on the defendant’s objection, and an exception taken by the plaintiffs.
    The plaintiffs also offered in evidence a letter from John „ ,. ,. , „ Patton, the intestate, directed to James Ash, dated the 7th June, 1795, proved to be in the handwriting of the said Patton, in which Patton said, “ in the course of a few 7 « days, I shall make you a remittance, on account of the ac- “ commodation, which you and my friend Craig, procured « for me at the bank.” And also another letter, dated the 22d March, 1796, from the said Patton to James Craig, the intestate, and James Ash, in which he said, “ it would “ have gone hard enough with me had it not been for your “ aid, which you have been illy rewarded for.” To the admission of these letters in evidence the defendants objected, and the Court sustained the objection, and sealed two other bills of exceptions.
    Two other bills of exceptions were taken by the plaintiffs to the opinion of the Court, in rejecting certain notes offered in evidence by the plaintiffs, but the notes were not annexed to the record, and the Court gave no opinion on these points.
    
      Levy and Fisher, for the plaintiffs.
    
      Craig himself, if living would, by the law of this state, have been a good witness to prove his books of original entries, and, therefore, his administrator may be. The plaintiff would have been a good witness, in such case, to prove his own entries. Here the other clerks were dead, and the only evidence that could be had was that of their handwriting. Ash, after his commissions were released and the costs were paid, had no longer any interest. He was merely a nominal plaintiff, and, therefore, an unobjectionable witness. Steele v. The Phoenix Insurance Company, 
      
       Hubert v. Haine,  An executor is not liable to costs when plaintiff. 1 Str. 682. Sayre, 94. 100. A bare possibility of being liable to suit, does not make a witness incompetent. 5 Johns. 356. 1 Johns. 491, 1 Johns. Cas. 270. 1 Caines, 168.
    The letters went to shew money advanced by Craig to Patton. It is not sufficient answer to say, that they prove a joint contract. Each might halve raised money by notes drawn and indorsed separately.
    
      
      Watts and Hall, contra.
    The release by Ash did not discharge him from liability, jn case Gf misconduct as administrator. Besides, the costs . 7 were only paid up to the time of paying them, not including those that were to accrue afterwards. The costs of this suit *n error were not Paid. The case of Hubert v. Haine proves, that all future costs must be paid. Could he be a witness though interested? A man may prove his own book "to be a book of original entries, from necessity ; but that is no reason why any other person should prove this by his own oath, if he is plaintiff. Any other person might as well prove this to be a book of original entries as Ash. The handwriting of the clerks might also have been proved by other witnesses. The letters were not evidence, because they proved debts due to Ash and Craig jointly. Besides, it was incumbent on the plaintiffs to prove an assumpsit within six years, before they could prove an assumpsit beyond six years.
    
      
       3 Binn. 206.
    
    
      
      
         6 Binn. 1G
    
   Tilghman C. J.

This is an action on the case, by the administrators of James Craig, deceased, against the administrators of John Patton, deceased. The narr. contains counts, for goods sold and delivered, for money paid, for money lent, and for money had and received, &c.

Six bills of exceptions were taken in the course of the trial, by the counsel for the plaintiffs. One exception was to the rejection of á letter from Patton to James Ash, (one of the plaintiffs,) dated 7th June, 1795 ; and another, to the rejection of a letter from Patton to James Craig, (the intestate,) and James Ash, dated 22d March, 1796, both which were offered in evidence by the plaintiff. In the first of these letters, Patton says, “ In the course of a few days, I shall make “ you a remittance on account of the accommodation which “ you and my friend Craig procured for me at the bank.” In the last letter, he says, “ it would have gone hard enough “ with me, had it not been for your aid, which you have been “illy rewarded for.” The objection to these letters is, that they shew a debt due to Craig and Ash, jointly. It is true, that they rather seem to indicate a joint debt; but not conclusively ; the expressions are open to explanation. It might be, that both Craig and Ash, had assisted Patton, by procuring money on discount from the bank, and yet each might have separate demands against him, One might have drawn a note, and the other indorsed it, or both might have indorsed for Patton, and on his failing to take up the note, they might each have made payments to the bank, for which their claim against Patton would be separate. Supposing this to be the case, the expressions before-mentioned in the rejected letters, would be very proper. It will be recollected, that the action is not brought on these letters, but they are offered as evidence applicable to the count for money paid by Craig for the use of Patton. They would be no more than introductory matter, and if not followed by something more pointed, would be of no avail. I am of opinion, however, that they should have been read.

Two other exceptions were taken to the opinion of the Court against the admission of James Ash as a witness. After being once rejected, he was offered a second time; having released all his interest in the estate of James Craigs and all claim for commissions on the amount of the debt demanded in this suit, and having also 'paid the costs of this suit. In order to-remove the objection of interest, it was necessary, that the whole costs, not only those which had accrued, but those which might accrue, should be paid, and that the plaintiff should stipulate, that in no event should those costs be refunded. It does not appear, that all this was done, and therefore I do not think the objection was removed. But was not James Ash a witness, for some purposes, although one of the plaintiffs? If Craig.had been alive, and plaintiff, he would have been a witness for the purpose of proving, that the book offered in evidence was his book of original entries; and it seems to me, that Ash might have be.en a witness for the same purpose; because it did not appear, that there was any other person living, who could make that proof. Ash had been Craig’s clerk, and all the other clerks were dead. The evidence in these cases, is an exception from the general rule, and is justified from ne-. cessity. I am, therefore, of opinion, that James Ash should have been received as a witness, solely for the purpose of proving, that the book of Craig’s was kept as a book of original entries, and that he, himself, made certain original entries in that book.

The two remaining exceptions, are to the opinion of the Court, in rejecting certain notes offered in evidence b; the plaintiff. Those notes ought to have been annexed to the record, but are not; and therefore, I cannot with propriety, give an opinion on these exceptions.

Upon the whole, the judgment must be reversed, and a venire facias de novo awarded.

Gibson J.

1. The interest which the plaintiff was supposed to have in the money to be recovered in this suit, was at most contingent, and not sufficient to exclude him, even if he had not released. He was not, by law, entitled to a commission, and the Orphan’s- Court might have refused him an allowance on that ground, in the settlement of his account. But he had an interest in the costs of the suit, and a payment of all the costs, unaccompanied with a deposit of a sum sufficient to cover costs that might accrue thereafter, was insufficient to remove it. But he had no other interest. It is true, if he squandered the assets wantonly, in the prosecution of a suit, where there was no prospect of a recovery, he would render himself liable for a devastavit; and hence it is said he would have a particular interest in effecting a recovery in this suit. But a mere possibility that a witness may be liable to an action, is a contingent interest, and will not exclude him. But notwithstanding the plaintiff was interested, he was clearly competent to prove the entries made by him as the clerk of Craig, but no further. On what ground but pure necessity is a party admitted to prove entries made by himself in his own books ? Evidence of the handwriting of the person is not equal to proof,that the book contains the original entries made at the time ¡ and this, in the nature of things, can only be had from the person who made such entries. If they were made by a clerk, he must be called. But when the clerk himself becomes interested in the suit, there is the same i ;- cessity for admitting him, that exists where a party has been his own book-keeper. For some purposes, then, the plaintiff was competent, and he should not have been rejected entirely.

2. I am at a loss to discover on what ground the letters of the 7th June, 1795, and the 22d March, 1796, were excluded. It is said they were impertinent to the issue ; but both these letters contain pretty strong acknowledgments of indebtedness and promises of payment. It is true, the amount due is not specified, nor is the nature of the transactions between the parties developed; but enough appears to shew, that Patton was indebted to Craig at the time; the amount and the particulars of the transactions between the parties might have been supplied by other proof. These letters may have formed a link in the plaintiffs’ chain, and were clearly admissible under the issue of non assumpsit. I am, therefore, of opinion that the judgment should be reversed.

Duncan J. gave no opinion; having been counsel in the cause.

Judgment reversed, and a venire facias de novo awarded.  