
    No. 111.
    John Neal, assignor, plaintiff in error, vs. Henry G. Lamar, John Lamar and Tilos. R. Lamardefendants in error.
    [1.] The single fact that a witness appears as a party upon the record, is not sufficient to exclude his testimony, if he have no interest in the event.
    [2.] An administratrix may execute an instrument releasing a witness from' all liability to her intestate’s estate, where it is for tlxo interest of the estate-that this should be done.
    [3.] One of several parties defendant to a judgment cannot bo admitted as a witness to prove circumstances going to show that the judgment was dormant, as this would be to allow him to furnish evidence in favor of his own interest.
    [4.] The Act of December 10, 1822, commonly called the Dormant Judgment Act, does not necessarily require the settlement of executions within the period of every seven years, nor prohibit a judgment creditor from indulging his debtor, in good faith, beyond that time. It was intended to prevent the fraudulent enforcement of dormant judgments to the injury of bona fide creditors.
    
      Fi. Fa, and illegality, in Bibb Superior Court. Decided by Judge Powers, May Term, 1855.
    The executors of James Billingslea obtained a judgment and execution against the defendants in error, at the March Term, 1845, of Bibb Inferior Court. On the 15th day of January, 1849, the plaintiff transferred the fi. fa. to John Neal. On the 12th day of June, 1850, the Sheriff of Pike County, where Neal resided, the defendants, at that time, living in Bibb and Clarke Counties, made a return on said jd. fa. of “no property.”
    On the 12th day of August, 1854, the fi. fa. was levied, by the Sheriff of Bibb County, on property of John Lamar, who died since the judgment was obtained, one of the defendants and a joint principal in tho fi.fa. To which proceeding the administratrix of John Lamar filed an affidavit of illegality, on the following grounds:
    1st. Because the fi. fa. is dormant, the return of the Sheriff of Pike County being fraudulent, defendants haying, at the-time, property in Bibb, Clarke, Monroe and other Counties, subject to the fi. fa.
    
    2d. Because John Lamar’s estate is discharged from all liability on account of said fi. fa. he being only security on the note on which the fi. fa. is founded,'and Neal having, for a consideration, given H. G. Lamar time and further day of payment on the fi. fa. without the consent of John Lamar, or his representative since his death.
    3d. Because if any thing is due on said fi. fa. it is only the principal, Neal having agreed with Henry G. Lamar to give him time and day of payment, by said H. G. Lamar agreeing to pay him more than legal interest for such indulgence.
    On the trial, the defendant having first released Henry G. Lamar from all liability over on said fi. fa. offered him as a witness to prove that John Lamar was only security on the note upon which the fi. fa. was founded.
    Plaintiff objected to him, on the ground that he was a party to the record and interested in the issue; and upon the further ground, that the administratrix of John Lamar' was not the proper person, and had not the power, as admiñistratrix to release the witness. The Court over-ruled.the objection, and plaintiff excepted.
    The Court charged the Jury, that it was not competent, under the law, to carry a fi. fa. to a county remote from, residence of defendants, where they had property, and procure in this remote county, where they had none, the entry; of no property’ in order to keep the fi, fa.' open ; such am act would be a fraud on the Statute; that the policy of the law had in view the entire settlement of old fi. fas. within; the period of every seven years.” To which charge of the Court plaintiff excepted.
    Whittle ; Cole, for plaintiff in error.
    Stubbs & Hill, for defendants in error.
   By the Court.

Starnes, J.

delivering the opinion.

The point first made in this case presents the question, whether or not the mere fact that the name of a witness appears as a party upon the record, is sufficient to exclude his testimony, oven though ho has no interest in the event.

Having fully discussed this question in the case of Wooten & Co. vs. Nall, decided at this term of the Court, it is unnecessary for us to add the reason for our decision in this case. We content ourselves, therefore, with referring to the judgment delivered in that case, for the reasons which influence us to decide that the Court below' was right in holding, that if Col. Lamar had po interest in the suit, he was not incompetent as a witness, because he was nominally a party ,to the same.

But it was also objected that the administratrix of .John Lamar had no authority, as administratrix, to release the witness; and that such a release from the administratrix, if it were lawful, did not relieve the witness from liability to .the plaintiff.

We have no difficulty in recognizing the right and power an administrator, or administratrix, to do any such act for ,the benefit of the estate. Of course, he or she acts at his or her peril. If the act be for the interest of the estate, or if it be what should reasonably have been done, under the circumstances, for the promotion of the best interests of the .estate, the law will sustain and protect the trustee in the cx.ercise of such authority.

It is true that the release in question did not relieve Col. L. from liability to the plaintiff; and therefore, he could not be a competent witness to testify, generally, in the case. He might have been allowed to testify as to the character in which John Lamar signed the note, as this did not affect his liability to the plaintiff. The release, thus, would remove all interest springing out of his relations to the other parties in the case, and render him competent to show the fact of the character in which John Lamar signed the note.

But we are clearly of opinion that the Court erred in holding that Col. Lamar could be a competent witness in this case, .totestify generally, and thus to prove circumstances, the effect which was to show, or was intended to show, that the judgment was dormant. Of a consequence, the result from such proof, if it -were credited, would be the release of the parties from liability on the judgment. The record could be used in favor of the witness; and he would, therefore, be interested in making such proof.

We think, too, that the Court erred in charging the Jury, in substance, that the Act of our Legislature of December 19th, 1822, commonly called the Dormant Judgment Act, had in view the settlement of executions within the period óf every seven years, if defendants had property sufficient to satisfy them; and that some effort to have the same satisfied, must be made within that period, and shown by the return of she proper officer.

We are by no means prepared to hold that a judgment creditor may not, in good faith, indulge his debtor beyond the period of seven years, and have a return, in good faith, made by the proper officer, for the purpose of showing part payment, or execution to a certain extent. On the contrary, we hold that the Act was passed, as it shows for itself, to prevent fraudulent collusion between parties to judgments, for the purpose of wrongfully enforcing such judgments to the injury of bona fide creditors, and that this was the mischief, and the only mischief, intended to bo remedied.  