
    
      Ex parte Jeremiah Hinton.
    
    On the trial of a suggestion under the prison bounds Act,, a witness for the plaintiff is not incompetent, merely because he is surety for the defendant to a promissory note, on which judgment has been recovered against the witness and defendant.
    
      Before H. A. Jones, Commissioner of Special Bail, at Abbeville, 2Ath January, 1846.
    The defendant, Jeremiah Hinton, had been arrested by-virtue of a ca. sa. at the suit of William Smith, and this was his application for discharge, under the prison bounds Act. His discharge was objected to, on the ground that the defendant’s schedule was false, in that he had not included in it either his interest in the land on which he lived, or the proceeds of the labor of himself and his minor children.
    On the trial, one Emry Yan was offered as a witness for the plaintiff, and excluded on the ground set forth in the ground of appeal. The jury found for the defendant, and the plaintiff appealed, and now moved for a new trial, on the ground, inter alia,
    
    That the commissioner of special bail improperly excluded the testimony of Emry Yan, as incompetent, because said Emry Yan was surety of the said Jeremiah Hinton on a note to Jefferson N Davis, upon which notejudgment had been obtained against the said Emry Yan and Jeremiah Hinton and another.
    
      McGowen, for the motion.
    
      Cunningham, contra.
   Curia, per

Butler, J.

There are some circumstances connected with the trial of this case which would incline the court to a new trial, independently of the legal ground upon which the motion is granted. As we are satisfied on that ground, it will be unnecessary to advert to any other.

We think there was no legal objection to the competency of Yan as a witness on the issue upon which he was called to give evidence. He was not, like Davis, a judgment creditor, dor does it necessarily follow that he will ever occupy that position from his present relations to Hinton and Davis. It may be that Hinton may get time, and hereafter pay the debt upon, which Yan is security. So long as Hinton has the power to discharge the debt, the interest and liability of the security are contingent and uncertain. It is sufficient to say, that at the time the witness was called to give evidence,' he could not insist upon or enforce any of the rights of a judgment creditor. Such a creditor, by aiding to convict his debtor of rendering in a false schedule, would acquire immediate and certain advantages in the enforcement of his execution ; as he would thereby deprive the debtor of availing himself of the insolvent Acts for his relief. See the case of Clerry vs. Spears, 2 Sp. 686. The witness, Yan, may have had a strong bias, or even the temptation of. a probable, though remote interest, to influence him, under the supposition that Davis might avail himself of his rights to coerce payment from Hinton ; and that he would, in consequence of it, be discharged from his liability as security, . If the detention of Hinton in confinement would operate, ipso facto, as a discharge of Van from his liability, or could give him immediately and certainly the power and advantage of a judgment creditor, then his evidence would be incompetent. But as no such direct consequences can follow, his interest in the issue to be determined was contingent and comparatively uncertain, and should, therefore, go to his credit and not his competency.

Motion granted.

Richardson, O’Neall, Evans, Wardlaw and Frost, JJ. concurred.  