
    Barnes vs. Dick & Co.
    A judgment was rendered by a justice of the peace against A. and B. upon which execution was stayed for nine months, and C. was entered hy the justice as security for the stay of execution. C. alleged that the justice had no authority to enter him as security, and removed the judgment and execution hy certiorari into the circuit court. Upon the trial before the jury, 0. offered A. as a witness to prove that his name was entered as security for the stay of execution without proper authority: Hold, that he was a competent witness,
    The defendants in error, N. and J. Dick & Co. as assignees of John Cain, recovered a judgment before a justice of the peace for Warren county, against John Chantion,sH. O. T. Heald and Stephen D. Hill, for the sum of eighty dollars and forty-one cents, debt, besides costs; which judgment was tendered 29th March, 1834, and was founded on a note for seventy-nine dollars and twenty-three cents. At the foot . . . _ the judgment is the following statement, “execution stayed nine months, by Elijah Barnes;” which statement, as well as the judgment itself is verified by the official signature of the justice and his seal. After the expiration of the stay, execution issued against Barnes as well as the principal defendants in the warrant and judgment. He thereupon filed a petition and obtained writs of certiorari and supersedeas, and brought the case into the circuit court of Warren. In his petition, after objecting to the form of the entry for the stay of the execution, and alleging that, in point of law, it did not constitute a proper ground for the issuance of an execution against him, he stated “that he never authorised the justice to enter him as security for the stay of execution upon said judgment, in any way whatever. He admitted in the petition, that at the instance of one of the defendants in the warrant, he, on the first day of April, 1834, signed a writing, without seal, au-thorising the said justice to enter his name as security for the stay of execution upon a judgment that said plaintiffs had obtained against said defendants before him for seventy or eighty dollars, and alleged that this was all the authority which he ever gave to said justice, which was limited to eighty dollars at furthest, whilst the amount of the judgment for which he was entered as security in the stay of execution was for more.
    Upon the cause coming into court, a jury was sworn to try the facts, touching Barnes’ liability as security for the stay of execution. The plaintiffs proved, by the justice whor ender-ed the judgment, that the defendant Barnes appeared before him and authorised him to enter his name as security for the stay of execution, and that he did it in his presence; but if it was not done in the presence of the defendant, he did it by his written order; he would not have done it, without the authority of the defendant in one or the other of those ways. He stated, he thought it was the former, though it was possible it was the latter. The defandant Barnes then introduced Harrison O. T. Heald, one of the principal defendants in the original judgment before the justice; by whom it was proposed to prove that the defendant was not present when his name was eiitered as security for the stay of execution upon said judgment, that bis name was entered by virtue of an order, and that he, Barnes, did not execute said order, and that said entry as security for stay of execution was made without any authority from Barnes. The plaintiffs objected to the witness being sworn or examined on the ground that he was incompetent, which objection was sustained by the court. There was no other evidence in the case.- The jury rendered a verdict for the plaintiffs, and the defendant moved for a new trial, which ■was refused.
    
      JL. J. Marchbcinks, for plaintiff in error.
    
      Jl. Ewing, for defendants.
   Reese, J.

delivered the opinion of the court.'

Was the witness, Heald, improperly rejected on the ground of incompetency? We are clearly of opinión that he was. Why was he not competent? Was it because of the relation in which he stood to the parties in the proceeding' before the court? What was that relation? Tiie plaintiffs had obtained a judgment before a justice against him and two others, which was in full force and unsatisfied upon a joint liability, and the question before the court was, whether Barnes had subsequently became liable by entering himself security for the stay of execution.

What interest had fieald arising from this relation to exon-rate Barnes? None whatever. Indeed, if the proceeding had taken place immediately after the rendition of the judgment, his interest would have been the other way; for the consequence of exonerating Barnes, would have been the issuance of an execution against him and the other defendants in the warrant and judgment, without waiting for the expiration of the time for which the stay of execution had been granted. If1 it be said, that his testimony was calculated to destroy his contingent liability to Barnes for any amount, the latter might be compelled to pay as security; we answer, his direct and immediate liability to the plaintiffs in the judgment continued, and he had no interest whatever in exonerating Barnes. It is very clear that he was competent. Was the testimony offered material? He was introduced to prove that Barnes was not present.when entered as security for the stay of execution* ándjthat the order upon which the justice acted* was not signed or authorised by Barnes. Barnes in his petition, states that he gave to one of the' defendants an order to the justice to' enter him as security in a judgment for the sum of seventy or eighty dollars. But the witness, one of the' defendants, was offered to prove that the order upon which the justice in fact acted, was not executed by Barnes. The materiality of this testimony is made manifest by the principles settled in the base of Hickman vs. Williams, Mar. and Yerg. 118.

Judgment reversed.  