
    Dial, Adm’r, v. Crain.
    where a witness who was called to testify in behalf of an estate of which he was-a creditor, upon his voir dire said that ho did not know whether the estate was insolvent or not, but that he understood from rumor that the estate would be insolvent unless the plaintiff (the . administrator) gained that suit, it was held that his testimony was properly rejected.
    An administrator, party to the suit, is competent to testify in favor of the estate,notwithstanding ho may have executed and filed a release of all commissions, &c.
    rJ?he instances in which parties to the record havo been admitted to testify are confined to cases in which they were called by the opposite party and were willing to testify. (Note
    The question of the interest of an administrator is not well settled. His interest may be beyond his commissions as administrator on the effects administered. Ho may possibly be liable personally for counsel feos. The doctrine as to his liability in that ease, lias never yet been settled, although it has been brought before this court in a ease pending in another district. ,
    An agreement for the rescission of an executory contract for the sale of land is within the statute of frauds, and requiros the same evidence to establish it as is required to ostablish the sale.
    Appeal from Harrison. Suit April 21st, 1847, by appellant to recover from the appellee five aeres of land west from and adjoining the town of Marshall, and damages. The petition was in the usual form in the action of trespass to try titles, averring that plaintiff’s intestate, Abner P. Vaughn, was the legal owner of the land in his lifetime; that the defendant Crain entered into the samo with force and arms, ami still holds possession, and prayed for the writ of possession, &c. The defendant answered, 1, by general exceptions; 2, by general denial; and 3, by special matter, in substance, that on the 14th day of August, 1844, plaintiff’s intestate for a valuable consideration bargained and sold to defendant the premises in dispute; that defendant paid the purchasc-money to said intestate, and Cook from him a receipt for the same, as follows: “Received of R. S. Crain live hundred and fifty-six dollars and ninety-“three cents, in part payment for the premises I sold him, formerly owned by “Dr. E. Allen, adjoining the town of Marshall, west of the town, for which I “will execute, to him a bond whenever called on. August the 16th, A. D. “1844. A. P. Yanglm.” Attested by G. B. Crain. That defendant then took possession of said premises, and had always since that time been in possession thereof; and that said intestate in his lifetime admitted full payment of the purchase-money, and was ready and willing to execute a deed for the land.
    At .Tune Term 1849, the plaintiff filed an amended petition, which set out the title of his intestate, and sought to avoid the defendant’s plea of purchase by alleging that in 1845 Vanglm and Crain “canceled their agreement, and by “agreement between said Vaughn and Crain for a valuable consideration “moving from said Vaughn to said Crain, said Crain agreed that he no longer “held said Vaughn responsible or any way bound to make a deed for said “land by virlne'of said agreement in said answer pleaded.”
    At December Term 1S50, the defendant filed an amended answer, in which he demurred to both the original and amended petition; traversed the alleged rescission of the contract between the parties; averred the purchase price to have been seven hundred and fifty dollars; that defendant, relying upon his purchase, had sold the land to Giles B. Crain, put him in possession, and that said Giles B. had peaceably continued in possession and had made valuable improvements; that Vaughu’sestafe was insolvent; and prayed that if his title was insufficient for his defense that he have a lieu on the premises, and a decree to sell the same to pay his purchase-money.
    At the same time plaintiff filed an amendment, setting out by specific motes and bounds the land in dispute; averring the annual value to be five hundred dollars during defendant’s possession of'"it; and praying for a writ of possession and judgment for annual value, &c. He also filed a motion to strike out the receipt filed as a part of the defendant’s answer.
    A trial was had at the same term. The plaintiff’s motion to strike out the receipt was sustained. The defendant’s demurrer was overruled; a verdict rendered for defendant, and a decree that title be conveyed to defendant from plaintiff. The plaintiff moved for a new trial. The motion was overruled and plaintiff gave notice of appeal. There was a statement of facts.
    A witness, Burris, being called by the plaintiff, in answer to a question upon his voir dire, replied that he was a creditor of the estate of Vaughn, that he did not- know whether the estate was insolvent or not, but that he understood from rumor that said estate would be insolvent unless the plaintiff gained this suit. lie was rejected, and the plaintiff' excepted. The administrator, the plaintiff, having filed a release of all claims against the estate for commissions, &c., offered himself as a witness. He was rejected, to which an exception was taken. The plaintiff asked the judge to charge the jury that all the terms of the rescission of a parol contract need not to be proved; and if they believed from the evidence that Vaughn and Crain did rescind said contract, they should find for the plaintiff. The instruction was refused.
    
      Clough Sr Lane, for appellant.
    I. The exclusion of Burris is supposed to be clearly "erroneous. To say the most of it, the interest was not direct or certain, and it was only a matter affecting his credibility aud not reaching to his com-.peteucy.
    II. Dial, the administrator, was offered as a witness after releasing his commissions, &e., and by the court rejected. That this was error, see Patton’s Administrator v. Ash, 7 Sergeant & Rawlos’ Reports, page 116.
    III. The judge instructed the jury that all the terms of the rescission of the contract must be proved with the same certainty which would be required to establish a case for a specific performance. See bill of exceptions. And he refused to charge the jiuy if they found from the evidence that Vaughn and Crain rescinded ,tlie contract, to find for the plaiutiff. See bill of exceptions.
    
      That the court in this erred, see Boyce v. McColloeh, 3 AVatts & Sergeant’s Reports, 429.
    
      W. P. Sill, for appellee.
    The first error assigned, i. «., the exclusion of Allen D. Burris from giving testimony for plaintiff, is liable to two objections. First, the bill of exceptions is fatally defective in not showing the fact to prove which Burris was offered as a witness. The foundation of any error is, that the party excepting was prejudiced thereby. How can it be known to a court of review that prejudice lias resulted, unless it appears that the evidence was legal and relevant?
    “AVhere the admission of evidence is objected to, such objection together “with the testimony must be saved in the bill of exceptions.” (Withingion v. Young, 4Miss. B., 564; 1 Supp. U. S. Dig'., 285, sec. 173; 3Híut.&.J., 527; Samuel v. Withers, 9 Miss., 166; Turner v. Fendall, 1 Pet. Cond. K., 201, 663.) • .
    I understand the court to have decided at this term in a case from the ninth district that where a witness was improperly rejected, and it appeared that the testimony which lie was expected to give was cumulative, his rejection was no ground of reversal.
    These remarks apply with full force to the second error assigned. But, was Burris improperly rejected? He was a creditor of plaintiff’s intestate. He was plaintiff’s witness, and his testimony was expected to aid in increasing the fund out of which his claim was to be satisfied. He was about to testify also under the clear belief that if plaintiff lost this case the estate would be insolvent. He liad therefore a direct interest in the plaintiff’s success in making out a title to the premises in dispute, since on that, as he believes, the payment in whole or in part of his debt by plaintiff depends. 'The general rule is that a witness is-incompetent whore his testimony is offered to increase ■a fund in which he lias a direct interest. (Phoenix v. The "Assignees of lugraliam, 5 Johns. R., 412; Pauli v. Mackey, 3 AVatts. It., 110.)
    It is no answer to this objection that there is testimony in the record going to prove that the estate of plaintiff’s intestate is not insolvent. It is manifest that Burris so believed it and that his testimony would have been given under that belief. If tills was not so the plaintiff was the person best advised. When Burris was on his voir dire the plaintiff might have corrected the erroneous belief of the witness, and thereby have rendered him competent. Ilis failing to do so was an implied admission of the insolvency of the estate, and the plaintiff chose to rest his exception upon the decision of the court that a creditor ■of an insolvent estate, whose testimony is offered to preserve or increase a fund out of which lie is to be. paid, is an incompetent witness for that purpose. This decision, it is submitted, is clearly right. If there was testimony in the case it was produced afterwards, and after it was produced the plaintiff might have recalled Burris. But this he did not do aud did not offer to do. The State v. Underwood, 6 Ired. R., 96.
    Burris’ impression or belief as to the insolvency of the estate of Vaughn ■even if erroneous docs not change the result. “If a witness would testify'un“der the impression of an interest which he honestly believes that he lias in “the event of the suit, he cannot be sworn, (for the effect on his mind must be “the same,) although lie has in fact no such interest.” (Plumb v. AVhiting, 4 Mass. B., 518, 519; Peter v. Beall, 4 Ilarr. McII. R., 342, 343; Trustees of Lansingburg v. Willard, 8 Johns. R., 428.)
    The next error — that the court erred in excludingB. P. Dial, plaintiff, from testifying — is, it is submitted, still more untenable. It raises two questions : first, whether in this State a necessary party on the record can ho a witness in Dais own favor; and second, whether aii administrator is a competent witness in behalf of the estate lie administers.
    'That an administrator is not competent to testify in a cause in which lie is a party is the doctrine oí all common-law courts. First, because he is a party in the record, and also, second, because lie is liable for costs. Either ground is sufficient to exclude him. In Massachusetts, the cases are numerous. (Durant v. Starr, 11 Mass. R., 527; Sears v. Dillingham, 12 Id., 368; Pox v. Whiting, 1G Id., US; Adams v. Leland, 7 Pick. B., 62.) In Maryland, (Beard, Ex’rs, v. Cowman, Ex’r, 3 Harr. & MclI. B., 152.) In Mew York the rule of -incompeteney on the ground of interest has boon abolished by statute, but a party to a suit is excluded from being a witness on either side. (1 Cowen & Ilill’s notes, p. 42, 47.) Without citing numerous authorities it may lie sufficient to cite 1 Cow. & II’s notes, 47, in which the doctrine is laid down as the result of all the authorities, “ that though a party bn an administrator', executor, “trustee, guardian, prochien, airy or otherwise stand in outer clroit, he is not “competent to testify in favor of the interest he represents, because on failure •“ he is liable for costs; and the most complete and certain remedy over to reimburse himself has not yet in any case been considered as countervailing- his “interest.”
    Again, at page 53, “ if a party bo in truth interested, all the books agree that “he cannot, if objected to, be received in favor of his interest even under the “ more liberal rules of a court of equity. As if he be offered in a case wherein •“lie has been properly made a party, and therefore may be subject to costs, “even though he be not interested in the subject matter.”
    III. The fifth assignment, “ that the district judge erred in refusing to charge 41 the jury that all the terms of the rescission of a p.rrol contract need not be ■“proved; and if they believed from the evidence that Vaughn and Crain did “receive said contract, to And for the plaintiff.”
    The latter proposition is to be treated as a conclusion from the first. To paraphrase it: although some of the terms of the rescission of the contract may not be proven, yet if enough is proven to induce the jury to believe that it was in fact rescinded, they must find for the plaintiff.
    As a legal proposition tire charge asked for is not correct. I repeat, that if it is a mere executory contract it may be simply abandoned, and it operates a rescission, because the parties are not at once in statu. ¡¡m. But where it is executed on one side and not on the other, it cannot be rescinded by mere abandonment without proof of something else done. In such a case the parties must be» reinstated or it is no rescission ; indeed, no such tiling as a rescission can take place properly in that case ; it B, to all intents and purposes a now contrae!, and must be proven as such. A certain predicament of facts must exist in order to raise the legal question of rescission or no rescission, or •more properly, where applied to this case, certain facts must exist to constitute a now contract between the parties, which annuls the old contract. We moan by the term.-! of a contract the elements or eoustiluem.s of which it is made. Which one of these is to be dispensed with? Which of the terms may not be proven ? It is one and entire. If you prove only a part of it, have you proven any contract, at all? Can you know a contract, except by its terms? If you know a part of its terms and not all, can you say you know the contract at all? The court was called upon to say to (he jury, all hough the terms of this ■rescission may not be proven in part, although'certain elements must have combined to give it legal existence, and some of them are not disclosed to you so that you cannot legally know that it does exist, si ill if you are morally convinced that it did take place, you will so find.
   Lipscomb, J.

The first point to which our attention has been called by the appellant’s counsel is the rejection of the evidence of Burris, a creditor of the ■estate of Vanglm, called by the plaintiff. The witness, when offered, being sworn to answer questions, said that he was a creditor of the estate of Vaughn. He did not know whether the estate was insolvent or not. On being askecl if lie believed ho would be able to collect his debt if the plaintiff lost this suit, “lie said that he understood from rumor that said estate would be insolvent unless the plaintiff gained (he suit.” This is all that tiie bill of exceptions shows attending the offering- the witness Burris. He was rejected by the court as incompetent.; and we believe that in so ruling- (he court did not err, because the witness would have sworn if received under the impression that if the plaintiff by whom lie was called should lose the suit, the estate would be unable to pay him his debt, lie would then have been swearing- (.0 create a fund necessary (o his payment, and in his own opinion directly interested in the result, of (lie suit.. The appellant contends that it was subsequently shown by other evidence that the estate was amply sufficient for the payment of all the debts, even if the administrator lost this suit; to which the appellees’ counsel, very justly as we think, reply that after this evidence of the solvency of tiie estate had been proven the appellants did not offer again the witness Burris; and therefore the proof of the solvency of the estate subsequently made could not affect tiie previous ruling of the court.

The next exception is of somewhat a kindred character to the one considered. Tiie appellant offered himself as a witness after having executed a release of all commissions that lie was entitled to as administrator. The doctrine is not well settled whether a party to a suit can be allowed to testify in his own favor in such suit, interest or no interest; and in most cases admiuist l-atoi-s, executors, guardians, and all other parties to a suit in a fiduciary capacity have been excluded. And the general ground of rejecting them is that although not interested in the subject-matter of the suit they are nevertheless liable for costs personally. This is certainly resting the objection (0 the competency upon the ground of interest. In some cases, however, the objection has been placed upon the naked ground of incompefcency for being a party on the record. And in New York, w'liere the objection to competency has been abolished by their code as relates to an interest in tiie suit, parties upon the record are excluded from being witnesses.

There is no doubt that'the tendency of the decisions lias for many years been to narrow down the distinction between the competency and credibility of witnesses; and when there is any doubt as to the interest, to admit tiie evidence and let tiie objection go to tiie credibilty of witnesses. And yet tiie objection to allowing a party upon the record to testify in Ills support seems to liave been adhere,cl to with groat tenacity. In the ease of Parsons v. Phipps,. (4 Tex. II., 341,) wc liad occasion to discuss the question of how far a party on the record in the suit could be permitted to give evidence. Parsons, tiie endorsee of tiie bill, sued both drawer and acceptor in the same suit. Jones, the acceptor, was willing to testify when called by the plaintiff, but his co-defendant, tiie drawer, objected to his competency, and the objection was sustained. On appeal we overruled the judgment of tiie court, below and decided that although the defendant Jones, the acceptor, could not lie compelled to. swear ; yet'if he was willing to do so, and the plaintiff who called him would risk his evidence, there was no objection to his competency. But in all the cases examined by u$s it was found that where a party to the suit, apparent upon the record, was'received as a witness, he was called by the opposite party and not in behalf of his own side, of the question. The weight of adjudged eases would sustain tiie objection to a party being- a witness in his own behalf, although not interested for even costs in the result of the suit, personally, but, on the naked ground of bis being a party to the record of the suit, unless when lie is willing to testify at the call of the opposite party.

Tiie question of (he interest of an administrator is not well settled. His interest may be beyond his commission as administrator on the effects administered. lie may, possibly, he liable personally for counsel fees. The doctrine as to his liability in that case lias never yet been settled, although it

has been brought before this court in a case pending- in another district.

The injury that might result to an estate from excluding the executor or administrator is not believed to he very serious, because by our laws the trust could at any time be surrendered. And if the interest of the estate required the benefit and aid of the executor or administrator, it would no doubt be made available by a, resignation of the trust. The bill of exceptions shows nothing of what, was iiuende'il to be proven by the evidence, of the. plaintiff, whether material to the, ease or not, nor does it show any matter addressing itself to the sound discretion of the court, such as the impossibility of proof of the same material fact by the. evidence of any one else, which ought to have been required if any discretion was with the. court, and it could under any circumstances admit such evidence.

The remaining question discussed in the appellant’s brief' arises on the refusal of the judge to charge the jury as requested by the appellants. Plaintiff's counsel asked the judge to charge the jury “That all the. terms of rescission of a parol contract need not be, proved, and if they believed from the “evidence that. Yauglm and Crain did rescind said contract, to find for the “plaintiff; which instructions the judge declined giving.” The judge did not err in refusing to give the, charge as 'it was asked. It assumes that the contract for the siiic. of'the land from Vaughn, the plaintiff’s intestate, was a parol contract. A reference to the statement of facts wilt show that this contract was a writing signed by Yauglm, as follows: “Received of It. T. Craiu five “hundred mid fifty-six dollars and ninety-three cents, in part payment for the “premises I sold him, formerly owned by Dr. E. Allen, adjoining tile town of “Marshall, West of the town, for which I will execute to him a bond whenever “called on. August tlio lGth, A. D. 184-1. A. P. Vaughn.” Attested by G-. B. Crain.

This was a good and valid contract under the statute of [454] frauds, and was proof that the laud was sold by Vaughn to Craiu. If then, Craiu being the owner of the. land, any contract for a rescission would he as much obnoxious to the provisions of the statute of frauds, and would require the same evidence under the statute to set it up, as was required for the sale from Vaughn to Craiu. The charge asked treated the contract between Vaugliu and Crain, evidenced by the writing signed by Vaughn, as a mere verbal contract, and such as could be, rescinded verbally, without any reference to the provisions of the statute of frauds, and as if for that purpose inferior evidence could be received. This will be the most apparent by a reference to the statement of facts, which shows that the plaintiff to prove rescission depended, mainly upon the acts and declarations of Vaughn and some light remark from Crain. But there was no evidence of the payment of the money by Vaughn, nor of his again going into possession and claiming it as his own. The judgment is affirmed.

Judgment affirmed.

Note 83. — Hall v. Murphy, 14 T., 637. It is competent under the statute for the plaintiff to propound interrogatories to one only of several defendants, the other defendants having the right to propound cross interrogatories. The answers of one defendant so obtained are admissible in evidence against all the defendants, and arc entitled to the same weight, when unimpeached, as the testimony of any other witness. (McGown v. Randolph, 26 T., 492.)  