
    Pingree, treasurer, &c. vs. Warren & als.
    
    
      In an action by a town treasurer on a collector’s bond given to his predecessor in office, such predecessor is not admissible as a witness for the plaintiff, to disprove the payment of money for which the collector held his receipt:
    This was an action of debt, on a bond given to Barnabas Brack-ett, the plaintiff’s predecessor in office, as treasurer of the town of Denmark, and to his successors, by Henry Warren, the principal defendant, conditioned for his faithful execution of the office of collector of taxes in that town, for the year 1820. The defendants, after oyer of the bond, pleaded a general performance of the condition ; to which the plaintiff replied, assigning a breach in not paying over divers sums of money collected ; on which issue was taken.
    At the trial before Parris J. the defendants offered in evidence a receipt given by Brackett, as treasurer, to Warren, purporting to be in full of all taxes committed to him to collect, up to March 1827. To explain this receipt, and show that it was not intended to be in full of the assessment of 1826, the plaintiff offered Brackett as a witness ; to whose competency the defendants objected. The judge overruled the objection, but reserved the point for the consideration of all the judges, a verdict being returned for the plaintiff.
    
      
      Fessenden, for the plaintiff,
    eo; tended that the witness was admissible ; — 1st, because he was not interested in the event of this suit, the proceedings in which could never be used in evidence for or against him. There is only a bare possibility that an action may be brought against him j which is no objection tó his competency. It is only a legal and fixed interest in the event of the suit, that excludes the witness from being heard. Carter v. Pearce, ID. E. 163 • Bent v. Baker, 3D. & E. 27; Bell v.Harwood, ib. 308; Smith v. Prager, ID. fyE. 62; Abrahams v. Bunn, 4 Burr. 2251; Revere v. Leonard, 1 Mass. 93 ; Bliss v. Thompson, 4 'Mass. 488 ; Page v. Weeks, 13 Mass. 199 ; Stockham v. Jones, 10 Johns. 21; Ow-ings v. Speed, 5 Wheat. 420.
    
      2. Brackett was merely the agent of the town; and as such is admissible, ex necessitate rei. Benjamin v. Forteus, 2 H. Bl. 590; 11 Mod. 226 ; 1 Aik. 248; 3 Wils. 40; 1 Stra. 647 ; 1 Salk. 2S9 ; 3 Campb.' 144; Bull. JY. P. 289 ; Adams v. Davis, 3 Esp. 48 ; Mathews v. Haydon, 3 Esp. 509; Livingston v. Swanwick, 2 Dali. 300$ Brown v. Babcock, 3 Mass. 29 ; Herman v. Drinkwa-ter, 1 Greenl. 27 j Gifford v. Coffin, 5 Pick. 447; Burlingham v. Dyer, 3 Johns. 189 ; Brownson v. Avery, 1 Stra. 507; Union Bank v. Knapp, 3 Pick. 96.
    
      Dana and D. Goodenow, for the defendants,
    cited Bliss v. Thompson, 4 Mass. 48S; Widgery v. Haskell, 5 Mass. 144 ; Pierce v. Butler, 14 Mass. 303 j Emerton v. Andrews, 4 Mass. 653.
   Mellen C. J.

delivered the opinion of the opinion of the Court, in Cumberland, in August following.

The only question in this case is whether Brackett was a competent witness to disprove the fact stated in the receipt, which he had, when town treasurer, given to Warren the collector. There is no question as to the right to explain the language of a receipt by proper evidence. Was Brackett so interested as to be an inadmissible witness for the purpose ? As the receipt stands, if not falsified by proof aliunde, it constitutes a good defence to the action. If the defendant Warren is thus discharged from accountability, an action will immediately lie against Brackett by the town treasurer, and Brackett’s receipt will be good evidence to maintain such action, unless its accuracy and truth can be disproved by him; but if he is permitted to testify in this action, and by his own oath disprove the receipt, in whole or in part, and. thereby enable the plaintiff to recover of Warren and his sureties the amount of the alleged mistake or falsehood in the receipt, he will, in so doing, shield himself from all pretence of liability to the town. An indorser of a note cannot be a witness for the indorsee in an action against the maker; because a judgement in that action has a direct tendency to relieve Í im from his liability as indorser. What but this contingent responsibility renders the indorser of a writ, the bail, or surety in a replev.n bond, incompetent witnesses for those whose sureties they have become? The success of the present action will save Brackett harmless; the failure of it, on account of the absence of his testimony, immediately exposes and subjects him to an action on the part of the town for the contested amount. Can he then be a competent witness ? Is he not directly interested ? See Schillinger v. McCann, ante. p. 364, and cases there cited.

But it is contended that Brackett was a mere agent of the town, and that an agent or factor is by law a good witness. Such is the principle, and it is well known to be an exception from the general rule. But we do not perceive that such a character belongs to Brackett. He certainly is not the agent of the plaintiff; there is no privity between them; nor does there exist in this case that necessity, which can bring the witness within the exception $ on which necessity the exception is founded.

Verdict set aside, and new trial granted.  