
    David Pinchback, for his Assignee, vs. F. M. Killian.
    D. P. made an assignment for the benefit of his creditors: — Held, in an action brought in his name for the assignee, that he, D. P., consenting to be sworn, was a competent witness for the defendant.
    BEFORE GLOVER, J., AT CHESTER SPRING TERM, 1856.
    The report of his Honor, the presiding Judge, is as follows :
    “ David Pinchback made an assignment for the benefit of certain creditors, and this action is brought to recover the amount of a merchant’s account, embraced in his assignment, against the defendant, who is not one of the preferred creditors. The defendant offered in evidence the following due bill and affidavit; ‘Due E. M. & J. W. Killian, seven hundred- and twenty-eight dollars, and seventy-five cents, for value received.
    (Signed) ‘ D. Pinchback.’
    January 30,1854.’
    “‘David Pinchback makes oath before me that there was an° express agreement between himself and Erancis M. Killian, previous to deponent’s assignment to Wffi.- Pinchback, of his estate and effects, that a note given by deponent to E. M. & J. W. Killian for-dollars should be taken in payment of the individual account and notes of Erancis M. Killian, due and payable at that time to deponent, so’far as it would 'go, after first deducting from said note the -amount of an account and a note due to. deponent at time of said agreement, from'the firm of E. M, & J. W. Killian.’
    “An objection to the admissibility of this evidence, as well as to the competency of David Pinchback, was sustained on the ground that he was the plaintiff on the record: — that the amount of the due bill was a subsisting debt against David Pinchback, in the discount of which against the account sued upon in this case he has a direct interest and, consequently, in the event of the suit, rendering him incompetent and his admissions by affidavit inadmissible. Besides, to permit a debtor to prove secret arrangements, by which a portion of his assigned estate is diverted to the payment of debts, not provided for in the assignment, would fraudulently defeat the rights of those creditors who had accepted it on the faith of the assigned estate.
    “ The amount of the account was four hundred and forty-o'ne dollars and sixty-six cents, and the amount established by proof was two hundred and nine dollars and eighty-two cents, for which a verdict was rendered for the plaintiff.”
    The defendant appealed, and now moved this Court for a new trial on the grounds :
    1. Because the presiding Judge erred in not permitting David Pinchback, the nominal plaintiff, to testify on the part of the defendant, the said nominal plaintiff' being present and willing to testify.
    2. Because the presiding Judge erred in refusing to receive in evidence the deposition of the nominal plaintiff made before suit brought and written by and sworn to before one of the plaintiff’s attorneys.
    McAliley, for appellant.
    
      Herndon, contra.
   The opinion of the Court was delivered by

O’Neall, J.

In this case, we do not perceive from anything which is before us, that the plaintiff has any interest in favor of the defendant and against his other creditors. He seems to us to stand equally between them.

The only question is, can he, if consenting, be sworn for the defendant ? The case of Corrie vs. Calder & Milner, 6 Rich. 198, answers that he can. I can add nothing to the reasoning of that case, and therefore I do not attempt it.

The motion is granted.

Wardlaw, Withers, Whither and Munro, JJ., concurred.

Motion granted.  