
    Dennis Crosby v. Polly Floyd.
    The interest, which excludes a subscribing witness to a written instument, must exist in him at the time, when he is offered for examination: Where, therefore, a promissory note ivas taken for a debt due to the subscribing witness, and was made payable to a third person, for the express purpose of enabling the real creditor to become a witness: Held, that a release of his interest to the nominal payee, rendered the subscribing witness competent to prove its execution; and that the objection to his testimony went only to his credibility.
    Tried before Mr. Justice Gantt, at Chester, Fall Term, 1830.
    
      Debt on a sealed note. John Crosby the subscribing witness was examined on his voire dire; and testified, that the son of defendant having obtained credit at his store, he repaired to the house of the defendant, to have the debt secured by her mark and seal to a note; that no other person being present to attest the note, he made it payable to his brother, the plaintiff, and subscribed his own name as a witness: He further testified, that the debt was his at the time of its creation, but that he had since transferred his interest to the plaintiff. A release, by witness, to plaintiff-was then produced: But his Honor held that the witness was not only incompetent, but incapable of being rendered competent by a release ; and ordered a nonsuit.
    The plaintiff now moved to set aside the nonsuit, on the ground that the witness had been rendered competent by his release, and ought to have been examined in chief.
    Williams, for the motion.
    Eaves, contra.
    
   Harper. J.

delivered the opinion of the Court.

The general rule, certainly is, that a witness is not incompetent on the score of interest, who is disinterested at the time when he is offered for examination. The only case in which there has ever been supposed to be an. exception, was that of the subscribing witnesses to wills, under the provisions of the statute of frauds. Lord Camden in Hindson v. Kersey, 4 Burn’s Eccles. Law, 97, rests the objection on the words of the statute, requiring credible witnesses: This he supposed to mean credible or competent witnesses at the time of attestation. Lord Mansfield, however, in Windham v. Chetwynd, 1 Burr. 414, in which he was supported by the whole Court, comes to the conclusion, that a party benefitted by a will, is a competent witness, provided he be rendered disinterested by payment, or release before his examination. He observes, that before the statute, no subscribing witness was required to any instrument. The necessity of subscribing witnesses, to any instrument, never before existed in this country. There never could have arisen in the law of England, a question concerning the competency of a witness at the time of his knowing the fact he came to testify; but only whether he was competent at the time of his examination.” Ib. 419.

This was certainly a very censurable transaction on the part of the witness who was offered; hardly an honest one, and it ought to go strongly to his credit. But we cannot say that he is incompetent, and the motion to set aside the nonsuit, is therefore granted.

Motion granted.  