
    Owen v. Mann.
    In the Court below,
    Davis Owen, Plaintiff; Andrew Mann, Dej ndant.
    
    demanded Prc™sesuA-whom he In an action ofejectment, the defendant claimed tifie te» thft had given his note for the purchase money., B» had indorsed this note to C. who, after the suit was commenced, applied to the defendant for payment, which was made under an agreement, that C. should retain the note, and if judgment should be rendered against the defendant, should refund the money, and resort to B, on the indorsement. B. it appeared, was a man of property. Held, that C. thus situated, was so far interested in the event of the suit, as to renda- him an incompetent witness Cor the defendant.
    .rrv JL HIS was an action of ejectment.
    On trial to the jury, under the general issue, the defendant claimed title to the land in question by virtue of a convey-anee from the plaintiff to Jamah Barber, and from Barber to the defendant. The latter conveyance containing a covenanted warranty. Barber had teen vouch ed in to defend.
    The plaintiff claimed, that his conveyance to Barber was void, on the ground of his own insanity at the time of executing it. To prove his insanity, he offered in evidence the confessions of the defendant, made before his deed from jBarber, and before he had any interest in the land. This evidence being objected to, it was ruled, by the court, to be inadmissible for the purpose for which it was offered ; but was admitted to shew science in the defendant of the state of Barber’s title.
    To prove the issue on the part of the defendant, Joel Jones, Esq. was called as a witness. Being examined on oath as to his interest, he said, that at the commencement of this Suit, he held a promissory note given by the defendant to Barber,⅜secure a part of the purchase money of the land, which had been assigned by Barber to the witness; that the defendant afterwards refused to pay the note, until there should be a final trial of the case ; that the witness, to induce the defendant to advance the money, entered into a written agreement with him, whereby the witness was to refund the money, and resort to Barber, who was a man of property, on his indorsement, if judgment should be ren-tlered against the defendant, but if in his favour, to retain it as payment ; and that the defendant, upon these terms, paid the amount of the note to the witness. The plaintiff then objected to the witness as incompetent, on the ground of interest in the event of the suit. The court over-ruled the objection ; and admitted the witness.
    The plaintiff filed his bill of exceptions: and having brought a writ of error thereon, assigned for error,
    1. That the evidence offered by the plaintiff was rejected.
    
      
      U. That the witness culled by the defendant was admitted.
    
      Peters, (of Hebron,) for the plaintiff.
    1. The admissions of a party on the record, as to any facts material to the issue, are always to be received,  This rule extends even to cases, where the party is merely a trustee.  But the defendant has an interest. He is in possession of the land ; and a judgment against him lakes it from him. Before the defendant purchased the land, he was in possession of facts material to the plaintiff’s title. It is now unreasonable and absurd, that the plaintiff should be deprived of his testimony as á witness, by his Having become interested, dnd, at tiie' same time, be denied the benefit of Ids admissions as a party, on account of his indifference.
    2. Jones was clearly interested in the event of the suit, A judgment against the defendant would take a sum of money out of Jones’s pocket. He could obtain a reimbursement of that sum only by a suit on the note, first against the maker, and then against the indorser. This would be attended with trouble, and expense, and delay. Besides, though the indorser were, at the time of trial, solvent, he might not be so, at a future period. Jones’s situation could, in no event, be any better, by a judgment against the defendant, and it might, be much worse : Worse, in some degree, it must be. Jones’s interest was, at least, as great as that of bail; but would bail be competent, because the principal was aman of property ?
    
      Daggett, for the defendant.
    The plaintiff in error complains of this judgment chiefly for the rejection of the proof of the declarations of the defendant, and the admission of Jones as a witness.
    1. It is said, that the declarations of a party to a suit, against himself, are always admitted in evidence ; and to shew this, Bauerman v. Radenius 
       is cited. Lord Kenyon, in that case, to be sure, lays down the rule in very broad terms ; but we must look for the reason and spirit of the rule. The declarations of a man against his interest are evidence ; but in the case at bar the declarations of the defendant were made before his title accrued, and while he was tolly disinterested on every point in this case. They are, then, mere opinions, and, of course, not admissible. The spirit of the rule appears in all elementary writers. In Peake's Evidence p. 11, ,12, it is laid down as above stated. The maxim ccssante ratio, cessat et ipsa lex, applies, with force, to this point in the case.
    2. It is said,.Jones was interested in the event of the suit, and therefore an incompetent witness. We answer, Jones’s interest was exactly balanced, and therefore he was admissible. 
    
    
      
      
        } Peake’s Dv.
      
    
    
      
      
        7 Term Rep. 663, Bauerman v. Radenius. Trin. 30 Gov. 3. Craib & Ux. v. D’Aeth, 7 Term Rep. 670 in note,
    
    
      
      
         7 Term Rep, 663.
    
    
      
      
         Peake’s Ev. 154, 165. 1 Stra. 575. 7 Term Rep. 480, 481.
    
   By the Court.

An action of ejectment was brought by Omen against Mann ; and the controversy between them solely regarded the title to the estate demanded. The defendant claimed to hold under a deed with warranty from one Barber, to whom he had given his note for the purchase money. The note was assigned by Barber to one Jones ; and after the commencement of the ejectment, the latter applied to the defendant for payment. This the defendant refused, until a final trial of the action should ascertain,, •whether the money was equitably due. Eventually, however, he made payment of the note on this condition, that Janes should refund and payback the money, if judgment in the suit aforesaid, should be rendered against tjie defendant. To this effect Jones executed a covenant, in which it was agreed, that the note should remain in his possession, aS if nothing had been advanced upon it, so that in the event of a recovery by Omen against the defendant, he might take his remedy against Barber, his indorser. Barber, it appeared, was a man of property.

At the trial, the defendant offered Jones as a witness ; to whose admission the plaintiff objected, that he was interested in the event of the suit. The Court, however, admitted him ; and to reverse the judgment on this ground, is the object of the present writ of error.

That an interest in the event of a suit, however trivial, disqualifies a person from being a witness ; and that Jones was interested in the determination of the action under consideration, are propositions too clear to admit of controversy. If judgment should be rendered against the defendant, the covenant of Jones obliged him, immediately to refund the money paid to him. He then was directly interested to defeat the action of the plaintiff.

It has been said, that if the plaintiff should recover, Jones Would have his remedy against Barber upon his indorsement ; and that this right of action renders him totally indifferent between the parties.

It cannot be denied, that if the interest of a person in fa-vour of one party, is counteracted by an equal interest in behalf of the other, he is a competent witness, Hut, if there be the least inequality of interest, that is, if a recovery on one side is more interesting to the person in a pecuniary view than on the other, he cannot be admitted to testify. The law demands, that witnesses should be wholly indifferent., with minds entirely free from any pecuniary bias in favour of either party. Hence, it has been determined, that if the proffered witness has an interest to the amount ot a moiety ol' the costs, this shall effectually exclude him.

It is manifestly clear, that Jones was not this indifferent ■witness. If judgment should be rendered against the defendant, he would be obliged immediately to refund the money received of Mann, while his demand for a similar amount of Barber, might long be postponed, be sought after with great expense, and eventually fail, through Barber’s insolvency. The obligation to refund, in the event of a judgment against the defendant, would be certain ; but the reimbursement by Barber, at best, would be contingent.

That bail cannot testify for his principal, is too well settled to require the formality of proof, Rut the condition of bail in point of disinterestedness, in all respects, is equal to that of Jones in the case under discussion, and in one particular, preferable. A judgment against the principal, is pot necessarily accompanied with an obligation of payment upon the bail. The money may be collected of the principal ; and the attempt must be made, before the bail can be subjected.

If, however, the judgment is not satisfied by the principal, then the bail may be compelled to pay it. At this precise point of time, the condition of bail and that of Jones are perfectly parallel. Each is obliged to satisfy the judgment which subjects him, and each has a hold upon another for indemnity.

It has been determined, that, although a plaintiff be barely a trustee for another, he is an incompetent witness for him. For he is personally answerable, in the first instance, for the costs of suit ; and the chance he rnay have of indemnity from the person for whom he acts, does not remove the interest which the certain liability creates. The case of The King v. The Governor and Directors of the poor of St. Mary Magdalen Bermondsey extends the full length of the present case.

The Court is, therefore, of opinion, that Jones was not a competent witness ; and the judgment of the Superior Court must be reversed. 
      
      
         Peake’s Ev. 154, 165. 1 'Esp. Rep. 332. 7 Term Rep. 480,1.
     
      
      
         1 ’Esp. Rep. 103, Young v. Bairner.
      
     
      
      
         1 Term Rep. 164.
     
      
      
         Peake’s Ev. 149.
     
      
       3 East 7.
     