
    L. Strickland vs. Enoch Stevens.
    
      Promissory Note — Evidence— Witness.
    
    Where, in an action by the bearer, on a promissory note, payable to S., or bearer, the defence is a discount for demands due by S. to defend- , ant, S. is a competent witness for the plaintiff, to show that the note was transferred before due, and for valuable consideration.
    BEFORE HUNRO. J., AT HORRY, SPRING TERM, 1858.
    The report of his Honor, the presiding Judge, is as follows:
    “ The plaintiff sues as the bearer of a promissory note, drawn by the defendant, in favor of Solomon Strickland, or bearer, for $150, dated the 1st March, 1851, and payable the 1st of January following.
    
      “ About the time the note bears date, Solomon Strickland, the payee, being about to remove to Florida, sold to the defendant a tract of land for $1000, in payment of which defendant gave two notes of $500 each. About the same time, the defendant purchased part of Strickland’s stock, and other personal property, for which he gave the note now sued on.
    “ In about a year after Strickland’s removal to Florida, he removed back to this State, when he and the defendant rescinded the land purchase, by defendant’s conveying the land to one of Strickland’s children, and by the latter’s surrendering up to the former the notes given for the purchase money.
    “ In the meantime, however, the defendant had sold one , hundred acres of the land for $100.
    
      “ The defence set up to the action was discount, consisting of a variety of items, viz., cattle, provisions, &c., furnished by defendant to Strickland upon his return from Florida. In order to get in this defence against the payee of the note, it became important to ascertain whether the note had been transferred by him to the plaintiff before or after it had fallen due. On this point, Hugh Stevens, a son of the defendant and a witness in his behalf, testified that in the summer of 1852 he saw the note in question in a trunk at the house of the payee; that the plaintiff is the payee’s son, and was living with his father at the time above referred to; that in 1855 the plaintiff had lodged the note in the hands of Messrs. Harllee & McDuffie for suit; that a writ had been issued returnable to Spring Term of that year, in the name of Solomon Strickland as plaintiff, a copy of which was exhibited on the trial; that the suit had been discontinued, as this witness thought, on the ground of its having been sued in a wrong name; and that the parties had agreed to leave it to men.
    “John Grainger, another of defendant’s witnesses, said that he had heard Solomon Strickland, the payee, say that defendant had paid him either $80 or $100 for the land which defendant had sold off the thousand-acre tract.
    “ I thought the above showing was sufficient to entitle the defendant to go into proof of his discount, and which I thought he did very satisfactorily, to the extent of about $262.
    “ Upon closing his defence, the plaintiff offered in reply Solomon Strickland, the payee, to prove that the note had been passed by him to the plaintiff for valuable consideration, before it had become due.
    ■ “His competency was objected to by the defendant, on the ground of his being a party to the' note. I overruled the objection, and exception is taken thereto in the defendant’s first ground of appeal. This witness said, that about a month after the date of the note, he had traded it to the plaintiff for a horse ; that defendant had agreed to credit witness for the articles composing his discount, with the $100, for which he had. sold the hundred acres of land. This witness further stated that he owned no property.
    “I instructed the jury, that if the note in question had been passed to the plaintiff after it fell due, or if even before it had become due, but without consideration, the defendant’s discount ought to be allowed.
    “ The jury found for the plaintiff the full amount of the note.”
    The defendant appealed, and now moved this Court for a new trial, upon the grounds:
    1. Because his Honor, the presiding Judge, permitted Solomon Strickland, the payee of the note sued on, to testify, when it is respectfully submitted, that such ruling was er roneous.
    2. Because it was.clearly proven that the note sued on was passed after it was due. (See testimony of Hugh Stevens.) And his Honor should have charged that such was the case, and two hundred and sixteen dollars of defendant’s discount having been clearly proven, such discount exceeding the amount of the note and interest, the verdict should have been • for defendant.
    8. Because it was clearly proven that the plaintiff and his father, Solomon Strickland, the payee of the note sued on, lived together, and received and used together the articles, amounting to two hundred and sixteen dollars, proved as defendant’s discount, and the jury should have found for the defendant.
    A Because the verdict of the jury was capricious and unjust, and against the law, and against the weight of the testimony.
    
      
      Phillips, for appellant,
    cited Brown vs. O'Brien, 1 Rich. 270; Bxeculors of Whitman vs. Butler, 2 Sp. 359 ; Oity Council vs. Tálele, 3 Rich. 301; Bogan vs. Ashby, 1 Strob. 435; Brassfield vs. Brown, 4 Rich. 298 ; Vierdier vs. Crowell, 6 Rich. 169. Where the Court is not satisfied that the evidence is sufficient to sustain the verdict, a new trial will be granted. Cox vs. Bucle, 3 Strob. 373; Bucher vs. Fraser, 4 Strob. 93 ; Butts & Co. vs. Scott, (MSS.) 1856.
    
      Munro, contra.
   The opinion of the Court was delivered by

O’Neall, J.

That Solomon Strickland was a competent witness, seems to be clear.

The fact that he was a party to the note, is of itself no objection. Had he a pecuniary interest in favor of the plaintiff? He stood, at most, equally between the parties. If there was a preponderance in favor of either, it was in favor of the defendant ; for the note, if allowed in discount, would have discharged a portion of his debt to the defendant. His testimony deprived him of that advantage.

Whether Solomon was under any legal liability to the plaintiff is doubtful — something like a warranty of the note transferred would have to be shown before he would be.

Hpon the facts we only remark, that the verdict depended upon the credit to be given to the conflicting witnesses.

That made the very case, in which, above all others, the jury are to decide.

The motion is dismissed.

Wardlaw, Withers, Whitner and Glover, JJ., concurred.

Motion dismissed.  