
    Browne for the use of Phillips against Weir and others assignees of Smiley.
    
      Thursday, December 29.
    Where an assignment was made " in trust to pay the debts due the following persons, viz” and -then followed the names and debts, and a debt due one creditor was put down "about 11,000 dollars,” which was in fact upwards of 13,000 dollars, held, that the trust included the latter sum.
    A nominal plaintiff in whose name a a suit is brought by the party beneficially interested, is a witness for the latter, on a sum sufficient to cover all the costs, being paid into Court.
    THIS was an action for money had and received, brought in the name of Liberty Browne, for the use of Zalegman Phillips, Esq., against the defendants, as assignees of William Smiley, in trust for his creditors. It was tried before Tilghman C. J. in February last, and a verdict was found for the plaintiff for 689 dollars 28 cents. And now, on a motion by the defendants for a new trial,«the Chief Justice reported the case as follows.
    
      William Smiley made a conveyance of all his estate, real and personal, to the defendants in trust, in the first place, to pay the debts due to certain persons mentioned in the deed of conveyance, of whom Liberty Browne was one. The expressions in the deed were, “ in trust to pay the debts due from me to the following persons respectively, vizthen followed the names of the several persons, and the debts due to each of them. In most instances, the exact debt was mentioned, but not in all. Several of them were said to be about so much. Liberty Browne’s was “ about 11,000 dollars.” It appeared on the trial, that the debt oí Liberty Browne , . - , ... , the time ol the conveyance, consisted or money lent by him to William Smiley, and notes drawn for his (Smiley’s,) commodation; and that the whole amount was something upwards of 13,000 dollars. The Chief Justice told the jury; that if they were satisfied the two notes drawn by Liberty Browne in favour of William Smiley, and held by Zalegman Phillips, for whose use this suit was brought (amounting to 14,000 dollars,) were justly and fairly due at the time of the conveyance, they would be justified in finding for the plaintiff, although Liberty Browne had already received a dividend from funds in the hands of the defendants, on something'upwards of 11,000 dollars.
    
      Liberty Browne was offered as a witness for the plaintiff, Zalegman Phillips, having first been released by Mr. Phillips, and the latter having paid into Court a sum sufficient to cover all the costs of suit. The witness was objected toby the defendants, but he was admitted by the Chief Justice.
    
      C. F. Inpersoll, in support of the motion for a new trial. , , contended,
    That no dividend could be demanded on the debts due Liberty Browne, beyond what had been received. The word “ about” means “ nearlyan amount not much exceeding 11,000 dollars : but cannot be extended to upwards of 13,000 dollars, as was contended for by the plaintiff. Johns. Diet, word about. Tooke's Div. of Purley, 358. Smith v. Evans.
      
       Opin. of Yeates J. Here the terms of the assignment required a release : and other creditors may have released under the impression that Liberty Browne's debt was 11,000, as stated in the assignment: but to extend it to 2000 dollars more, would operate unjustly as to them.
    2. Liberty Browne ought not to have been admitted as a witness: he was the plaintiff on record, and was interested in the event.
    
      Phillips and Kittera, contra.
    1. The amount of Liberty Browne's debt was not exactly known at the time of the assignment: and it was intended to prefer'him for the whole of it. The words of the assignment first include the whole debts of the respective creditors, though they afterwards refer to their amount, under a videlicet. The word “ about,” has no definite limit; and must be construed by the previous words and the circumstances of the transaction.
    2. That Liberty Browne was a competent witness cannot be questioned. The case of Steele v. The Phænix Insurance Company 
      
       is directly in point.
    
      
      
         3 Binn. 306.
    
    
      
      
         3 Binn. 306.
    
   The opinion of the Court was delivered by

Tilghman C. J.

It has been urged as a reason for a new trial, that the word about, did not authorise so great a latitude of construction; because other creditors of William. Smiley, might have been induced to execute a release to him, (the terms of the assignment requiring a release, before any creditor should be entitled to a dividend,) on the supposition that Liberty Brown's debt amounted to no more than 11,000 dollars. Rut upon full consideration, of the instrument of assignment, it is the opinion of the Court, that Liberty Browne’s debt, upon the face of the writing, appeared to be not exactly limited to the sum of 11,000 dollars, but to be left open to future adjustment,. and that the dividend was to be drawn upon the sum really due, whether more or less than 11,000 dollars. We do not mean, that the amount was so indefinite, as to reach to 20, or 30,000 dollars, but that the sum now in contest, is not an unreasonable excess. It is to be remembered, that if other creditors executed releases, so likewise did Liberty Broxvne, and it never could have been his interest, to have his debt estimated at less than its real amount.

There is another question for consideration. Liberty Browne was offered as a witness for the real plaintiff, Zalegman Phillips, having received a release from him, and was admitted by me, though objected to by the defendants. Before his admission, Mr. Phillips paid into Courts a sum sufficient to cover all the costs of suit. I cannot entertain a doubt on the competency of this witness. Until he received a release, he was interested, because he stood liable to Zalegman Phillips as indorser of the notes held by him. • But after the release, he had no interest. It was necessary to use his name, in order to let Zalegman Phillips in to the fund in the hands of the assignees; but Liberty Browne never had any claim to the money to be recovered in this suit, which was marked on the docket, for the use of Zalegman Phillips, when the original writ issued. We have no court of chaneery, and therefore are obliged to sustain actions (in the name of one person, for the use of another. But in such cases, the person for whose use the suit is brought, is considered as the plaintiff: an attachment for cost's may issue against him, nor is the person whose name is made use of, liable for the costs. This I consider as our practice, long settled, and well understood. The case of Steele v. The Thmnix Insurance Company, 3 Binn. 306, was much stronger than this. The mere circumstance therefore, of Liberty Browne’s name being used as plaintiff, was no objection to his testimony, and having no interest in any other respect, he was a competent witness. If is the opinion of the Court, that the motion for a new trial should not be granted, and that judgment should be entered for the plaintiff, upon the. verdict.

Motion for a new triál refused.  