
    Moses Lott against Burrel and Thomas Sandifer, Administrators.
    commMe<fas%o? contempt, and thecS tempt and a»r sw«r-
    The motion in this case is to set aside the decree of the presiding Judge, and for a new trial.
    It appeared on the trial of this summary pro-_ ti i i • • /v* i cess, brought by the plaintiff, as bearer, on a note of hand, against the administrators of Abraham a t /+ i i • • ii bandifer, that the note m question ivas payable to William McCullough, or bearer, who had.endorsed the same to the plaintiff; that the obligors had made their mark, and that there was no witness to the note. It appeared that the note could not be proved, situated as it was, but by the evidence of McCullough, and that he, therefore, ivas introduced as a witness on the trial; and as the note was payable to him, and he was an interested witness, he Avas objected to; but he produced a release from plaintiff, and, upon his being sworn on his voir dire, and questioned whether there was not a secret understanding between him and the plaintiff respecting the note, if it should be recovered, he refused to ansiver; upon which the presiding Judge, concluding from his silence that he had a latent interest in the note, which he was umvilling to discover, decreed for the deféndants.
   The opinion of the Court Avas delivered by

Mr, Justice Grimke.

I am of opinion that a new trial should he granted; for, although the presumption arising from his refusing to answer as to his interest to be strong, yet it was not conclusive : for he might have had other reasons than the one inferred by the Judge. The decree, therefore, was founded on a presumption of his interest, but the law is clear that an interest must be proved, not presumed. Besides, if a witness is permitted obstinately to persevere in silence, what case could be tried without some of them persisting in this kind of contumacy? Would it not be placing the justice of the country in the power of the most hardened and abandoned members of society, and permitting them to defeat the just and legal claims of their fellow-citizens? This consequence would be obviously the result; to prevent which, the Courts of justice are armed with complete and plenary powers, viz. that of commitment to the common gaol of the district, there to be kept close confined, without bail or mainprize, until the contempt was purged according to law. This is the mode which should have been adopted, and which makes it, therefore, obligatory on this Court to grant the motion for a new trial.

Mbit, Cheves, Colcock, Gantt, and Johnson, J. concurred.  