
    Columbia, November Term, 1812.
    David Sims vs. Nahtan Sims.
    Whitfield, for the Motion,
    
    Habeison, Contra.
    
    The grounds for a new trial in this case were, 1st, Because the judge permitted affidavits,taken ex parte to prove the infirmity of a witness, examined de be-ne esse. 2dly, Because the court permitted the examination of Daniel McKie, to be given in evidence, when it was proved by Mrs. Sims, that he had i * ' sold the land, and her husband, from whom the defendant derived his title, had paid him for it, though she did not know that he had made a deed, but said that Me Kie lived on the land before he sold it. 3dly, Because the verdict was contrary to law and evidence; as the j ury found the line of an older grant, than the one under which the claimed, to be the line of the defendant; because the junior grant called for the elder as a boundary line, when the plaintiff proved the true line of the junior grant to be a different line from the one called for, by proving two courses of the line, and several line trees, corresponding with the true course and distance of the plot.
    Depos^ «eme, Cont-thewitness ivfrorn indisposition unabie to traeré doubt that would be quity, Is not m exclude J,mpe-n" tent'
   Nott, J.

I do not think that either of the grounds, taken in this case, will authorise the Court te grant the plaintiff a new trial. It .has. always. ^een Pracdee in this state, to permit testimony, taken de bene esse on commission, to be read, on affidavit being made that the witness was unable to attend in person, by reason of indisposition. Indeed, it is the only regular method to prove a collateral point like this. The plaintiff had an opportunity, and actually did cross-examine the witness; and therefore no injustice has been done to him.

With regard to the second ground, it does not ¡appear to me that the witness (Me Kie) had such an interest, as should deprive the defendant of his evidence. Suppose, for the sake of argument, that Me Kie was at one time the real owner of the land, or joint owner with Hopkins; the legal estate was never in him, but the title always remained in Hopkins, which was well known to the purchaser, at the time he bought the land. It is to be presumed, that by taking titles from Hopkins, he intended to exonerate McKie, and that was the legal effect of the transaction. We must presume that it formed a part of the agreement, that he should be satisfied with that tide, and did not expect the double security of an express warranty from Hopkins, and an implied one from Me Kie. It is said, that in equity he would be required to refund the money. But we have no evidence from which any such conclusion can be drawn. He may, or he may not, be liable in equity. But that does not afford a ground to reject his testimony: an interest to render a witness incompetent, must be direct and certain. In this case, his liability is at most conjectural.

With regard to the third ground, there was evidence on both sides, and it belonged to the jury to say on which it preponderated : and I am of opinion that, the weight of evidence was on the side of defendant. The motion, therefore, ought to be discharged.

Grimke, Colcock and Brevard, Js. concurred.

Bay, J.

Upon the first ground stated in the brief, I am of opinon, from a fair construction of the act of 1718, for the examination of witnesses, that the presiding Judge was regular in permitting an affidavit to be read, proving the indisposition of the witness, who had been examined de bene esse. It is the usual and ordinary manner, in which any collateral fact in the course of a cause, is generally established to the satisfaction of the court.

By the common law, independent of the act, the court has a power to examine witnesses de bene esse. The meaning of which is, that such examination should be read on the trial, if such witnesses should die, or leave the state before trial, or be unable to attend, by sickness or accident. All which circumstances must be made out on affidavits, to the satisfaction of the court, before the deposition can he read. But if none of the intervening casualties are made out, their personal attendance cannot be dispensed with. It is laid down in 1st Cromp, 225. and indeed, in all the books of practice, that if a witness be going abroad, or beyond seas, he may he examined by rule of court, and his deposition shall be read; but if the trial comes on before he goes, he must appear. Salk. 691. Upon this point, therefore, there does not appear to me, to be any ground for a new trial; the declaration being agreeably to the spirit of the act, and the rules of law.

2ndly, But upon the second ground, taken in the brief, I think Me Kie was an interested witness, so far as to exclude him, or his deposition from being read, on the trial; as it went to support a title he was bound to defend : for he was the seller to the party from whom defendant claimed, and as such, bound, in case of failure of title, to refund the money to the buyer. It does not appear to me to be such a remote kind of interest, as would go to his credibility only, but not to his competency, for immediately upon the title being found against the defendant, he would become liable to refund the consideration money he had received. 2 Black. Com. 451. I think, therefore, that on this second ground there should be a new trial.  