
    Owen F. Jackson vs. Daniel C. Crawford.
    A person, whn either as debtor of another, or as bailee for him, had money of his 111 llis lliUidSj wnUl a competent wxtrrooo for that other in a anit between the latter and a third person, to prove that he paid the money thus hád by him, over to such third person, for the benefit of the one for whom he held it; upon a release of his interest, however, he would be competent.
    In error from the circuit court of De Soto county; Hon. Hugh R. Miller, judge.
    Daniel C. Crawford sued Owen F. Jackson on the 16th of September, 1844, for $>981, money had and received.
    The defendant plead non-assumpsit. On the trial the plaintiff offered the deposition of Joel T. Crawford, who proved that in the spring of 1839, he paid to Jackson the sum of nine hundred and thirty dollars, to be handed to plaintiff, and that in 1842, Jackson had told him he had not paid the money over.
    The defendant objected to this deposition on the ground of the interest of the witness. The court below overruled the objection, and he excepted. On a verdict being rendered against him, he sued out this writ of error.
    
      Watson and Wood, for plaintiff in error.
    
      Cushman and Glenn, for defendant in error.
   Mr. Justice Clayton

delivered the opinion of the court.

The only question in this case which demands consideration, relates to the competency of Joel T. Crawford as a witness. The witness states that he paid the defendant Jackson nine hundred dollars in the spring of 1839, to be handed to the plaintiff in Mississippi. The suit is brought to recover this sum.

Was the witness interested in establishing this fact! He originally held the money either as a debtor to the plaintiff, or as a bailee for him; the precise character in which he'held not appearing from the record. But whether in the one character or the other, he was liable to some extent for it. If he parted with the money without the authority of the plaintiff, and without directions from him, he would be responsible for it, unless some circumstances existed to relieve him from such responsibility. None such have been shown. The recovery of the money in this action from the defendant, would release him from liability to the plaintiff. The proof that, the money came to the hands of the defendant, rests alone upon his testimony. He would seem then to have a direct interest in fixiug the liability of the defendant, as he would thereby discharge himself.

The rule is thus stated by Greenleaf. “ Where the event of the suit, if it is adverse to the party adducing the witness, will render the latter liable either to a third person, or the party himself, whether the liability arise from an express or implied legal obligation to indemnify,.or from an express or implied contract, to pay money upon that contingency, the witness is incompetent.” 1 Ev. 462. Again he says, where the plaintiff calls his own servant or agent, to prove an injury to property while in the care and custody of'the servant, the witness is inadmissible, because a verdict for the master or principal would place the servant or agent in k state of security, against any action which might otherwise be brought against'him.” Ib. 466. The principle applies quite as strongly to debtor and creditor. Without a release we think the witness was incompetent.

It is true, the presumption is always in favor of competency, but this presumption ceases when facts are shown to exist which establish an interest that disqualifies.

For the error in admitting this testimony, against the exception of the defendant, the judgment will be reversed, and a new trial awarded.

Judgment reversed.  