
    [Pittsburg,
    September 27, 1822.]
    FETTERMAN for the use of FETTERMAN against PLUMMER’S Administrator.
    Whíere a chose in action is equitably assigned, and suit is afterwards brought by . the assignee, in the name of the assignor, for his use, the assignor, if he have no interest, is a competent witness for the plaintiff.
    Writ of error to Venango county, in an action brought by the plaintiff in error, on a single bill of Samuel Plummer to John Fetterman, dated Jiugust 7th, 1805, for 100 dollars, payable on demand. The plea was payment, with leave to give the special ihatters in evidence. The plaintiff, after having given the single bill in evidence, and an equitable assignment of it, dated November 1st, 1810, by John to James Fetterman, indorsed thereon, proved by the testimony of Falph .Marlin, Esq. attorney at law, that he had received the single bill from James Fetterman, to ■ bring suit upon it against Plummer ;■ that the bill was in his possession about a year, and that while it was in his possession, he had called upon an agent of Plummer to make an arrangement for the payment of the money. Pie then offered John Fetierman as a witness, who was objected to on the ground that he was the plain
      
      tiff in the cause. The court sustained the objection, and sealed a bill of exceptions.
    
      Salden, for the plrintiffin error.
    The witness offered and rejected was merely a nominal plaintiff, who before the action was brought, had parted with all his interest in the single bill on which it was founded, and who therefore' had neither interest in it, nor control over it, and who was not answerable for the costs. There was consequently no objection to his being sworn, except that he was a party on the record, which forms no reason for his exclusion, Man v. Ward, 2 Jitk. 229. Steele v. Phoenix Ins. Co. 3 Binn. 306. M’Ewing v. Gibbs 4 Ball. 137.
    
      Forward, contra,
    did not deny that a nominal plaintiff mig'ht be a witness, provided the court were satisfied that he had no interest, but insisted that his being a party on the record was prima facie evidence of his being interested, and that it lay upon the cestui qxie use to show that he was not. It did not appear to this court that the witness was destitute of interest, for he might have agreed to be answerable to the assignee, in case he failed to recover against the defendant, or there might have been fraud, and in either case the witness was clearly interested.
    
      Farrelly, in reply, said, that it was incumbent on the party who objected to the witness to shew interest. It did not appear to the court below, that he had any interest, or that there was any other objection than his being a party on the record; and this court will not, for the purpose, of sustaining his exclusion, presume either fraud, or an agreement to be responsible to the assignee if he failed in this suit.
   The opinion of the court was delivered by

DüNcan, J.

The only question is, can the nómina! plaintiff who has assigned equitably an obligation under seal, be received as a witness to support the action. The person holding the beneficial interest in a chose in action not assignable, or one which is assignable, but where the assignment does not pursue the prescribed form, is regarded as the real party. This instrument was equitably assigned to James Fetterman before the bringing of the action. The suit was commenced and carried on by him and for his use. If the defence set up had been, that,the obligee had received payment, or the consideration failed, or the obligation, for some cause, never recoverable' by the obligee, he was not a competent witness, for he would be liable over either on an implied agreement, or on the ground of fraud, and was directly interested in the event of the cause. What testimony had been’given by defendant, the bill of exceptions does not state, nor does it appear what John Fetterman was called to prove ; he is rejected, not because he was interested, but solely frojn his character as plaintiff. This doctrine was very. fully considered in Steele v. Phoenix Ins. Com. 3 Binn. 306. T.he rule there laid down, was “that a plaintiff, who after the com-meneem'cnt of the action, has assigned his property to trustees, for the benefit of his creditors, and released all money that may be recovered in that suit, is a competent witness, if all the costs are paid before the witness is sworn.” The principles of this decision were adopted by Washington, Justice, in Willing et al v. Consequa, 1 Peters, 308; and the foundation of the rule, that a party to a suit cannot be a witness, is, the interest which he has in the event, both as to costs and the subject in dispute, and when that is removed, the objection must cease. In these equitable assignments, the name of the assignor must from necessity be used; the form of action requires that it should be used as plaintiff, nor could he refuse its use. From the very nature of the transaction, he agrees that it shall he so used; he is the nominal plaintiff, he has the legal title, but he is merely a trustee, and the name of cestui que trust inserted in the record is notice of the trust; he has no interest in, nor power over the action. A trustee having the legal estate, but having no real interest, is examined every day in a Court of Chancery, Athly v. Tate, 3 Atk. 604. There is a clear distinction, where the assignment is before, and where it is after action brought. The nominal plaintiff is not liable for costs where the transfer is bona fide, and before action brought, and takes no part in carrying on the suit, and is to gain nothing by its .termination, Nestor v. Walker, 2 Brown 171. He is liable where' he brings the action before assignment; he sues in his own name, and for his own use, and he cannot- discharge himself from this liability, by a subsequent transfer of the right of action; But when the assignment is before action, it is very different; there from the first he is merely nominal, suffering that which he 'could not prevent, his name to be used as a trustee, by the cestui que trust. In Drum’s Lee v. Simpson, 6 Binn. 485, the trustee was admitted as a witness, though there he was received to testify against the^ supposed cestui que trust. The chief justice in' delivering the- opinion of the court states, that the name of the trustee is used by the cestui que trust, who is liable for the costs of suit, ' and is in fact the only party interested, and that the practice of the English Chancery to admit a trustee as a witness has been uniformly adopted in the courts of law of Pennsylvania. There was no interest in John Fetterman, nor was he objected to on account of interest in the cause, but merely in his character of plaintiff, and as he would not be liable for costs in any event, no objection remained; it was as much removed as if the costs had been paid into court. The witness should have been admitted, and the judgment is there» fore reversed, and a venire facias de novo awarded.

Judgment reversed and a venirefacias de novo .awarded*  