
    John Marland versus Isaac Jefferson et al.
    
    A commission merchant being called to prove that he sold goods of the plaintiff to two defendants jointly, stated that the plaintiff was indebted to him for advances on the goods and was insolvent 3 that he was uncertain whether he had sufficient security for his debt; that if the proceeds of the goods should come into his hands, he should apply them to his debt 3 and that as agent of the plaintiff he had applied to the attorney to commence this suit. Held, that he was not a competent witness.
    Assumpsit for goods sold and delivered. Rogerson, one of the defendants, was defaulted, and Jefferson pleaded that he never promised with Rogerson, and issue was joined thereon.
    At the trial, before Parker C. J., the plaintiff, to prove that the goods were sold to the two, called Elisha Parks as a witness, who being inquired of respecting his interest in the suit, stated that he was an auctioneer and commission merchant, that the goods were sent to him by the plaintiff to sell, and that he had advanced the plaintiff money to near the value, on this consignment; that the plaintiff was still indebted to him for the advance, and was insolvent; that he had other security for his debt, but that he was uncertain whether it was sufficient or not; that he did not know whether he had a lien on the proceeds of these goods, but that if the proceeds came into his hands, he should undoubtedly retain them on account of his debt; and that as agent of the plaintiff he had applied to the attorney to commence this suit. An objection was taken to his competency, but it was overruled. If he was not a competent witness, the verdict, which was for the plaintiff, was to be set aside, and a new trial was to be granted.
    
      S. D. Ward now contended that Parks was incompetent to testify, by reason of his being interested. He had made advances on these goods and had a lien, and was a purchaser pro tanto. If process of foreign attachment had been served on the defendants and they had answered that Parks had forbidden them to pay over the proceeds, they would have been discharged. Had a commission of bankruptcy issued against Marland, Parks would have been entitled to the proceeds as against the assignees. Row v. Dawson, 1 Ves. sen. 331 ; Yeates v. Groves, 1 Ves. jun. 280. This case differs from Benjamin v. Porteus, 2 H. Bl. 590, Buckmaster v Harrop, 13 Ves. 474, and Dixon v. Cooper, 3 Wils. 40, where a factor was admitted as a witness, for here Parks was interested both as factor and as pledgee. A witness is incompetent who expects to pay his debt out of the money recovered. Powel v. Gordon, 2 Esp. R. 735 ; Innis v. Miller, 2 Dallas, 50 ; New York Slate Co. v. Ogden, 11 Mass. R. 60.
    
      F. Dexter, for the plaintiff,
    admitted that Parks had once a lien on the proceeds of the goods in the hands of the purchaser, but he contended that by his voluntarily bringing this suit in the name of Mariand he had discharged the lien. If Mar-land recovers judgment against the defendants, he will be entitled to receive the amount recovered, and Parks cannot compel him to pay it over to him. There are several cases where witnesses have been admitted under similar circumstances, and in which the court lay down the rule, in unqualified terms, that all agents are witnesses ex necessitate. Renaudet v. Crocken, 1 Caines’s R. 167 ; Burlingham v. Deyer, 2 Johns. R. 189 ; Mackay v. Rhinelander, 1 Johns. Cas. 408 ; Cortes v. Billings, 1 Johns. Cas. 270 ; Abbott v. Sebor, 2 Johns. Cas. 39 ; Stewart v. Kip, 5 Johns. R. 256 An agent selling under a commission of del credere, however, as in the case of the New York Slate Co. v. Ogden, stands on different ground, for he is answerable to his principal, at all events, for the price, and may be considered as a purchaser of the goods. It does not appear that Parks expected to obtain payment of his debt by means of this suit, as in the cases cited from Dallas and Espinasse.
   Parker C. J.

delivered the opinion of the Court. We are all of opinion that, from the facts disclosed by Parks, it is clear that he was interested, and so ought not to have been admitted as a competent witness. As an agent merely he is not disqualified, but it appears that he is strongly interested in the recovery of the sum sued for, and in establishing the liability of Jefferson, the only solvent defendant. The goods sold were consigned to him, and he had made advances on account of them. The consignor is r solvent. The witness, without any particular authority, caused this suit to be commenced, and employed the attorney. The money, when received, is to come into his hands, and he admits that if it does, he shall retain on account of his debt. He has some security, but he is not certain that it is sufficient. It does not appear that Marland has given any directions to the attorney about the suit, and the inference upon the whole is, that Parks expects that the money recovered will be paid over to him. The case of Phœnix v. Ass. of Ingraham, 5 Johns. R. 427, is not stronger, where it is held, that if the effect of the testimony of a witness be to create or increase a fund in which he will be entitled to participate, he is incompetent. There are other authorities to the same point. Stewart v. Kip, 5 Johns. R. 258 ; White v. Derby, 1 Mass. R. 239 ; Peyton v. Hallet, 1 Caines’s R. 363 ; Innis v. Miller, 2 Dallas, 50 ; Powel v. Gordon, 2 Esp. R. 735 ; M'Veaugh v. Goods, 1 Dallas, 62.

Mew trial granted. 
      
       The disqualifying interest of a witness may consist in the expectation either of acquiring an immediate benefit or of avoiding someimmediate loss or deprivation. Gilb. Ev. 232; Stebbins v. Sacket, 5 Conn. R. 258 ; Rudge v.Ferguson, 1 Carr. & Payne, 253 ; Gilb. Ev. 106,107; Bull. N. P. 284. But the expectation by anattorney, of a larger fee in case of his client’s success, does not render him incompetent totestify for his client. Newman v. Bradley, 1 Dallas, 241 ; Miles v. O’Hara, 1 Serg. & Rawle,32 ; Slocum v. Newby, 1 Murphy, 423. See Benedict v. Brownson, Kirby, 78 ; Allen v. Hawks, 13 Pick. 79. An expectation of a leaseof the locus in quo, does not disqualify one to be a witness for the plaintiff in trespass qu. el.fr. Baker v. Pearce, 4 Harr. & M‘Hen. 502. See Phil. Ev (3d Eng. ed.) 49.
     