
    George Fisher versus John Willard.
    Where the general agent of the plaintiff received, in payment for the plaintiff’s goods sold, an order made payable to the bearer, which was dishonored, an action by the plaintiff on the order against the drawer.was maintained by the evidence of the agent alone.
    Assumpsit against the defendant, as the drawer of an order on John Kimball to deliver to the bearer sixty-five dollars’ worth of best selected lowland cotton, at the market cash price, dated February 3d, 1814; with an averment of a request of payment on the next day, by the plaintiff, of Kimball, and of a refusal by him to pay, &c. There was another count, averring that Kimball had no funds of Willard, &c., and the usual money counts.
    Trial was bad upon the general issue, at the last April term in this county, before Putnam, J. The only evidence produced was the deposition of Joseph Richards, jun., the objection of the defendant’s counsel to its admission having been overruled by the judge. He testified, that he was employed by the plaintiff to drive a team for him, about the * 1st of February, 1814 ; and, in that occupation, carried a load of fish belonging to the plaintiff to the county of Worcester for sale ; that, on or about the 3d of that month, being at Fitchburg, he met with Willard at an inn, who told the witness, that he was about collecting a load of merchandise to go to the westward with, and that he should be glad to purchase some of the fish to carry with him ; that the witness agreed to sell him a quantity of fish, and to receive payment in cotton, for which Willard said he could give him an order, to be answered at Waltham; that on this the witness delivered him fish to the value of sixty-five dollars, and received from him the order declared on. There was proof that the order was presented to Kim-ball, and acceptance refused by him, because he had no funds of the diawer.
    A verdict was returned for the plaintiff; which was to be set aside, and a new trial granted, if the said deposition ought to have been rejected ; otherwise, judgment was to be rendered on the verdict.
    Lincoln, for the defendant,
    argued, that Richards was an incom petent witness. He was, in fact, the party in interest. His testi mony goes solely and directly to discharge himself; for, if the defendant is not charged by his evidence, the witness must himself answer to the plaintiff 
    
    This objection is as well maintained, if the incompetency of the witness comes out on his examination in chief, as if it had been disclosed on the voir dire. 
      
    
    It is also contended, that the evidence, if admissible, shows no right of action in the plaintiff. There existed no privity between him and the defendant. The contract of the defendant was wholly with Richards, and, on the bill’s being presented by him and dishonored, a right of action immediately vested in him, which could not, by law, be transferred to the plaintiff. -
    Smith, for the plaintiff,
    was stopped by the Court.
    
      
       N. Y. Slate Company vs. Osgood & al., 11 Mass. Rep. 60.— Goodenow vs Tyler, 7 Mass. Rep. 36
    
    
      
      
        Turner & al. vs. Pearte, 1 D. & E. 717.
    
   Curia.

The first question arises on the competency of *jRichards, the witness. It is objected, that he is liable to the plaintiff, in case this action should fail, and, therefore, is directly interested in the event of the suit. The facts disclosed in his testimony are to be considered as if they had come out on his examination upon the voir dire. No rule of evidence is better established than the sufficiency of the objection of interest to the competency of a witness. But the exception from the rule, that agents and factors are admitted, from the necessity of the thing, is as well known as the rule itself, Richards was the general agent of the plaintiff in this transaction. He received the order of the defendant in that character. The plaintiff, by ratifying his act, made the transaction his own ; and, at the same time, discharged the witness of all liability to him.

It is further objected, that, if the evidence of Richards is competent, still it does not show a right of action in the plaintiff. The plaintiff in fact paid the consideration, and made the bargain, through his agent. The posterior adoption and ratification of his agent’s conduct, in giving the credit to the defendant, and receiving the order in payment, was equal to a previous authority. He may well declare on the order, stating himself to be the bearer. This objection cannot prevail.

Judgment on the verdict. 
      
       See Greenleaf on Evidence, § 416, and cases cited.— Ed.]
     