
    Hugh McCall vs. Richard Smith.
    A- sold a negro to 3B. and tool: liis note with 0. as security for a part of the purchase money. Judgment was obtained on the note, but it v.«a not satisfied; the court JielJi hat in rn action by ii. Rg.unsl A. for n fraud in the sale of the negro, C. was an incompetent witness.
    Tried at Richland, Spring Term, 1823.
    THE defendant had sold a negro to the plaintiff, an ’ took his note with Joseph May, as security for v. part f the price. He had brought several suits against them ->i this note, and obtained judgments, which were not yr'. ■, - tisfied. This was an action to recover damages br •. fraud in the sale of the negro, and to prove ;1 the phur.'.ih’ offered in evidence the examination of May, taken by commission. The presiding judge was of opinion that Mays interest in the event or the suit rendered him incompetent. The plaintiffthenn.«red to continue the cause with a view to render May comp went by payment of the judgment on the notes, and to obtain the opportunity of examining him de novo.
    
    The application was refused by the court, and the plain-' tiff being unable to prove his case, was non-suited.
    
      This was a motion to set aside the non-suit, on the ground :
    1st. That May was a competent witness.
    2nd. Because the causes shown gave the plaintiff á right to a continuance.
   Mr. Justice Johnson

delivered the opinion of the court:

It is not necessary to render a witness incompetent that he should have a direct and immediate interest in the event of the suit. If he is to derive any advantage from it, it is enough. Although it be consequential only, he cannot he sworn. (2 Bacon’s Mr. 384, Tit. Euidence (B.)

The application of this rule to the present case, is obvious. May, the witness, is not directly interested ; but if the plaintiff in this case recovers, he may immediately set off this judgment against that recovered against him by the defendant; and the judgment against May being for the same cause of action, it will operate as a satisfaction of that also ; so that the payment of the judgment against him is the necessaryf consequence of the plaintiff-’s recovering in this case, and renders him incompetent.

Applications for continüances are always Addressed to the discretion of the court, about which, it is impossible to lay down any rule which can or ought to control it.

We know from daily experience that parties resort to the most wiley artifices, supported by the most abominable perjury for the purposes of delay and oppression ; and there is none so competent to judge of the merits or demerits of such application as the judge, before whom these things transpired. He ought not therefore to be controlled in the exercise of a sound discretion, and in my judgment this court ought never to interfere, except as a mere instrument in the hands of the presiding judge to aid him in revising liis own judgment, or to correct his own inadvertance.

De Saussure, for the motion.

Gregg, contra.

The motion is refused.

Justices Nott, Richa?'dson and Huger, concurred.

Justices Colcock and Gantt, dissented.  