
    CONSTITUTIONAL COURT, CHARLESTON,
    JAN. 1806.
    The City Council v. Sibley & Fearley.
    An informer, who is to have the whole, or any part of the penalty imposed by a penal statute, cannot be a witness in any action or proceeding to recover the penalty.
    Appeal from a decision of Alexander Edwards, Recorder of the city of Charleston, to the district court, Judge Bay presiding, who dismissed the appeal. Motion in this court to reverse the decision of the district court. The case was, the defendants were prosecuted in the City Court for a breach of a city ordinance for retailing spirituous liquors on Sunday. The ordinance subjects the offender to a fine of twenty dollars, by suit in the City Court, one half to the informer. James Brown, the informer,' was called as a witness to support the suit, who was objected to on the ground of interest, and the objection was overruled by the Recorder.
    Griggs, iq support of tho motion in this court,
    argued that the informer was an incompetent witness. That the suit was in nature of a qui tarn action, founded on a penal statute, and that there does not exist any strong reason, founded in general necessity, or utility, to require a departure from the general rule in this case, which forbids interested Witnesses from giving evidence to establish their own interest. 2 Esp. Uig, 703. 1 Stra. 316. Peake on Evid. 101. 3 Mod. 114.
    Cogdell, on the other side,
    cited Gilb. Law Evid. 248. The nature of the subject excluded better evidence. The necessity of the case required it, to prevent a public mischief. Informers are, in many cases, allowed to be witnesses, ex necessitate rei. 4 Bur, 2252. 1 Str. 129. 2 Show. 491. See 1 Lofft’s Gilb. 221, and Seg. Bull. N. P. 288.
   The court,

(Grimke, Bay, Trezevant, Brevard, and Wilds, Justices, Waties, J., absent,)

were of opinion the motion ought to be granted. The general rule of law is; that no one directly interested in the event of the cause, is legally competent to give evidence therein. Even in prosecutions by way of indictment, witnesses who appear to have an interest involved, though not immediately, are often excluded from giving testimony. Such witnesses are never admitted, but from necessity, to avoid a public mischief. But the general rule is never dispensed with in civil cases, or where the nature of the case is not such as to require it; where the evil to be guarded against is not so general, and not so important as to justify the maxim, that public convenience should supercede private right. Where the informer is to have any part of the penalty on a penal statute, he cannot be a witness in any action to recover the penalty. This is now the settled law,- and it would be dangerous to break through it in any case. In this case there appears no necessity to do so.  