
    CONSTITUTIONAL COURT, COLUMBIA,
    NOV. 1806.
    Miller v. Creyon.
    An agreement was made to assign certain goods, on condition that the assignee should pay a third person, the defendant, a certain debt, &c.; and the assignment was executed, and a memorandum given by the as-signee stating the agreement on his part; and afterwards it was agreed that the assignee should execute another instrument, in place of the memorandum, which he refused to execute ; whereupon the assignor refused to deliver the goods pursuant to the assignment. The assignee sued the person to whom the goods were delivered, the third person abovementioned, the defendant, who had sold part of them to indemnify himself for the debt due to him. It was held that the defendant was entitled to give evidence of the memorandum aforesaid, in mainteance of his discount.
    Action of assumpsit lies where one acquiesces in, and implicitly sanctions an act of another, done on his account, which act, if done by himself, would amount to an undertaking in law.
    A witness may be compelled to give evidence which may, ultimately, affect his own interest, if the party against whom this interest operates insists on his giving testimony; provided his evidence does not extend to render him infamous, or prove him guilty of some crime.
    All the judges present. Assumpsit for goods sold, money had and received, &c. Tried in Richland-District Court, before ORrsiKBr J., April last. The case was this : One Mackin, being indebted to the plaintiff, agreed to give him an assignment of certain goods and merchandize then in his (Mack-in’s) possession, provided the plaintiff would undertake to bear harmless the defendant in regard to two notes of hand which he had signed along with Mackin as Mackin’s security. The plaintiff accepted the proposal, and signed a memorandum, containing the substance of said agreement, whereupon the assignment of the goods was drawn up, and was executed by Mackin ; but the goods were not delivered. The next day, Mackin being dissatisfied with the memorandum of the contract, a deed of indemnity was drawn up ; but Miller refused to execute it, and in consequence thereof, Mackin refused to deliver up the goods. The plaintiff then commissioned one Toller to demand the goods by virtue of the assignment. ,But Mackin had delivered them to the defendant’s brother, wholn the absence of his brother received them as so much stock, for which his brother was credited in their partnership books ; and the notes' for which the defendant was answerable as security were paid by the Creyons from sales made out of the partnership stock, and debited against the credit given for the goods. At the trial, Patrick Creyón, the defendant’s brother, who had received the goods in the defendant’s absence, was called as a witness for the plaintiff. Lie was objected to on the ground of interest; that as he had taken upon himself to receive the goods without any authority from the defendant, he might be induced to charge his brother in order to acquit himself; and, moreover, he ought not to he compelled to give evidence, which, although it would not have the effect of rendering himself liable in the present action to damages, would nevertheless operate to charge him, as what he might disclose on the present trial, might be brought forward in evidence against him hereafter in another action. These objections were overruled, and he was sworn and ex. attained; and he proved many of the facts above set forth. It appeared, however, from other circumstances, that the defendant acquiesced in the receipt of the goods, and actually satisfied the notes in which he was joined with Mackin out of them, and had sane, ffoned, with his consent, the disposal of the goods, contrary to the terms of the assignment. The defendant offered, at the trial, to give in evidence by way of discount, pursuant to notice given to that purpose, the agreement of Miller to discharge the defendant from his engagement by the notes in question, as a condition upon which the assignment had been executed; but the judge would not any evidence to that effect. The defendant moved for a nonsu‘t> which was refused to be granted by the court;- and Geimkb, J., having charged in favor of the plaintiff, the jury found accordingly. o
    The motion in this court was for a new trial. I. Upon theground that the action was misconceived; there being no evidence stated by the judge in his report, nor was any given at the trial, which proved a contract express or implied; and therefore assumpsit cannot be maintained, and the plaintiff’s remedy, if he is entitled to any, is detinue or trover, or trespass on the case in some special form. 2. That Patrick Creyón was improperly admitted as a witness; and 3. That the defendant was entitled to the benefit of the discount by him set up, which the court refused to admit.
    Nott, in support of the motion,
    cited Bull. 130. Esp. Dig. 86.
    Stakk, contra,
    
    cited Cowp. 197. Doug. 132. 2 Burr. 1010. 2 Raym. 1007. Bull. 14.
   Waties, J.,

delivered the opinion of the whole court, that a new trial ought to be granted, on the ground that the defendant ought to have been allowed to give in evidence, by way of discount, the agree, ment of the plaintiff to satisfy the notes given jointly by Mackin and the defendant, as a condition of the assignment, and the payment of the said notes by the defendant. That the action was maintainable, because it was proved that great part of the goods had been actually sold, and the money received for them, with the know, ledge, and by the consent, of the defendant, who knew of the as. signment, and who by his acquiescence, implicitly sanctioned the act of his brother. With respect to the admission of P. Creyón, as a witness, the opinion of the court was, that he was an admissi. ble witness for the plaintiff; and that it was for the advancement of justice to oblige a witness to give evidence against his own interest, where .he is not under a necessity to disclose any fact which might lead to expose him to infamy ; and that as to his being interested, to the prejudice of the defendant, the court could not discover any ground for such a presumption.  