
    
      Cozens and Brothers vs. George H. Pooser.
    
    1. B. and A. as the attornies of C. and B., lodged in the sheriffs office, a fi. fa. against one F., and it was conceded that the sheriff had collected the money. The attornies of the plaintiffs authorized O. as their agent to receive it, whose receipt in full, against the case, appeared on the sheriffs book. C. and B. brought suit against the sheriff, alleging, that although the receipt purported to be in full, yet, in fact, the whole of the money had not been paid over. It was held that C. was a competent witness to explain the receipt.
    2. Where a party has acknowledged in writing, that money has been paid, and a mistake is afterwards alleged, parol evidence may be received to correct it, but such proof must be very clear.
    
      Before Butler, J., at Orangeburgh, March Term, 1843.
    This was an assumpsit in sum. pro., to recover from the defendant, former sheriff of Orangeburgh, $60, which he had collected on fi. fa., and which, it was alleged, he had failed to pay over. Black & Arthur, as the attornies of Cozens <£ Brothers, had lodged in the sheriff’s office, a fi. fa. against Frederick, for about $90, besides interest. It was conceded that the sheriff had collected the money, and that Black & Arthur had authorized as their friendly agent, Langdon Cheves, Jr., Esq., to receive the money, and a receipt in full against the case was found in the sheriff’s book, signed by Mr. Cheves, It was contended by the plaintiff that this receipt, although purporting to be in full, was in fact, but for part of the money, and that $60 were yet to be paid over. Mr. Cheves’s evidence, taken by commission, was offered to explain the receipt, and objected to as incompetent. The presiding Judge sustained the objection to the competency of the evidence, on the ground, that the witness, by his evidence, would exempt himself from, and subject the sheriff to a liability, from which the latter could not be relieved by recourse to the witness. It is a contest between different agents, and one should not be permitted to acquire an advantage over another by his own showing. In this case, the evidence offered, comes from a witness of acknowledged integrity. But the rule applied here, must extend to other cases, and would it not be unsafe to allow an attorney, after he has signed a receipt to the sheriff, to make the latter, perchance, in many cases, liable to pay the money over again, upon testimony which might not always be true, and have same the sanction of high character to sustain it 1 The safe rule is to guard against mischief, by inculcating the necessity of prudence and vigilance.
    The plaintiff moved to reverse the decree, and for a new trial, on the following grounds, viz:
    1. That the testimony of L. Cheves, Jr., Esq., was competent, and was improperly rejected,
    2. That the decree was contrary to law and evidence.
    Arthur, for the motion.
    An immediate and direct interest, in the event of the suit, is requisite to make a witness incompetent. He cited 1 McCord, 285; 3 T. R., 27; 2 Stark. Ev., 744; 1 Bailey, 473.
    The witness here has no such interest in the result, nor can the verdict be evidence for or against him, in any future proceeding. Cited 1 Stark. Ev., 184.
    The witness is also admissible, from the necessity of the case. Cited 2 Stark. Ev., 753, 767 ; 4 T. R., 590; 3 Campbell, 144; 11 Mod. Rep., 262; 2 Lord Raymond, 871 ; 1 Bailey, 201, 1 lb., 308.
    A receipt, though purporting to be in full, may be explained. Cited 2 McCord, 320, 3 lb., 469 ; 1 Bailey, 540.-
    Whitmore, contra.
   Curia, per

Evans, J.

If the objection be, that the witness is incompetent on the ground of interest, it must appear, either that the record would be evidence for or against him, or that the verdict will subject him to or discharge him from a liability, but this must be a direct and immediate result, and not remote or contingent. I do not perceive that the record in this case, could ever be used in an action against the witness, nor is it very obvious that he could be sued by either the plaintiff or defendant. He was rather the agent of Black & Arthur, the plaintiff’s attornies, and would be liable to them, should they be compelled to pay the money to the plaintiffs, as they would, in the event it was not recovered out of Pooser. So that Cheves’s interest is somewhat of the character of Gadsden’s in the case of Johnson vs. Harth, 2 Bail., 185, not an immediate but a remote liability, and somewhat contingent, for if he received the money as a gratuitous act, he would not be necessarily liable. He would be a bailee without reward, and excused for non-delivery, by showing that the money had been lost without fault or negligence.

But the case of agents constitutes an exception to the . general rule, that persons interested in the result of a suit, are incompetent. In the case of Marshall vs. Nagel & Thompson, 1 Bail., 308, Judge Col cock said, “whether the witness be viewed as an attorney or a common agent he was competent. Where the interest of third persons is concerned, ex necessitate he must be admitted.” The same thing is said by Johnson, J., in 4 McCord, 412, and is sustained by 2 Stark. Ev., 768, and in Benjamin vs. Porteus, 2 H. Bl., 590. In the case of Marshall vs. Nagel & Thompson, the attorney, Simkins, had given a receipt for a sum of money, on account of this case and the case of one Carlivright. Marshall’s action was then pending, and Cartwright’s was in judgment. On the trial of the case, the defendants insisted on applying the payment of a part of it to this debt. The attorney, notwithstanding the receipt,, was allowed to prove, that by an agreement between him and Nagel, the money had been paid to Cartwright’s case, leaving Marshall’s case unpaid. There can be no doubt of Simkins’s liability to Marshall on this receipt, if the pla,iptiff had failed to recover against the defendants, but yet he was held to be a competent witness, from the necessity of the case. In Benjamin vs. Porteus, the witness, (a factor,) was to receive the excess of the price beyond a specified sum, for his own use, yet he was held a competent witness.

The American Reporters are full of cases sustaining the same principle, that in controversies between third persons, agents are ádmitted, of necessity, although they may be affected by the result of the case. I am, therefore, of opinion, that the witness was competent, and the evidence ought to have been received.

The general rule is, that parol evidence is inadmissible to contradict a written instrument; but cases of mistake, like the present, are exceptions to the rule; but the evidence of mistake should be very clear, to show that the money was not paid, when the party has acknowledged in writing that it was.

Motion granted.

Richardson and O’Neall, JJ., concurred.

Wardlaw, J.

I concur in the result, but not in the reason given for the admissibility of testimony as to the receipt.  