
    
      The City Council of Charleston vs. Henry Weikman.
    
    The interest, in the event of a suit, which renders a witness incompetent, must he a certain, direct and legal interest; and an effectual release of such interest will restore the competency.
    
    An expectation of advantage, growing out of a corrupt and illegal agreement, though it may affect the credibility of the witness, does not destroy his competency.
    
      Tried in the City Court of Charleston, July Term, 1844.
    The report of the Recorder is as follows:
    “This was an action of debt, to recover the penalty alleged to be incurred by the defendant, in keeping spirituous liquors in his retail grocery shop without a -license from the City Council.
    “William N. Wallace was produced as a witness for the plaintiff, when he was sworn on his voir dire.
    
    “He deposed that the information in this case was lodged in the name of one Dill — that the witness Wallace was to give the evidence. By virtue of his office he was to share a part of the penalty. If, when the information had been lodged, the penalty had been paid by defendant, witness would have been paid a part of such penalty — it was impossible to say how much, as there was no .understanding between witness and Dill as to what amount. By virtue of witness’s office, as a City Marshall, he would have been entitled to a portion of the penalty. Dill would not have been entitled to more than witness chose to allow him, although a moiety of the penalty would nominally be received by Dill, as informer to the city in the case.
    “For defendant, it was insisted that the witness bad a direct interest in the result of the case, and was inadmissi ble; after hearing the city attorney, I sustained the objection.
    “The city Attorney then produced a release from the witness, in which he assigned to the City Council all his right, title, share and interest, in the penalty in this case, or any part thereof-» — and under this release, offered him again as a witness.
    
      “Defendant’s counsel objected to his admissibility, ah' though the release had. been executed, on the ground that Wallace having acknowledged himself interested in the penalty, the assignment offered was against good faith and the sound policy of the law — and notwithstanding the release, he would derive a portion of the moiety which Dill would be entitled to, if - defendant should be convicted.
    “The City Ordinances direct that all penalties shall be disposed of as follows, viz, “One half to the use of the person who shall prosecute the offender to conviction, and the remainder to the use of the city.” Also, “that the marshals shall be entitled to one half of every forfeiture which they may be instrumental in making — provided they prosecute such offence, and prove the same by other evidence than their own.”
    “It appears to me, even after the tender of the' release, that the witness had a direct and immediate interest in the result of this case ; one half of the penalty recovered would be received by Dill, the informer and prosecutor, and an understanding existed between them, as acknowledged on the voir dire, by which Wallace was to be paid a part. I thought this was an interest from its nature incapable of beiug released or assigned,
    “It appears to me within the principle ruled in the case of M’Veaugli vs. Good, (1 Dallas, 62,) where, on the trial of an information filed against certain goods, a witness stated on his voir dire that he assisted in seizing the goods, and expected some compensation if they should be condemned, but not otherwise. His testimony was held to be inadmissible. The court there said. “It nearly concerns the administration of justice that witnesses should be free from every kind of bias. It is true, the witness had no positive promise of a reward; but we think the expectation which he acknowledges in ease the goods shall be condemned, must create such an influence on his mind as renders it improper for him to give testimony on this occasion.” The defendant’s counsel also cited the decision of Hon. M. King, Recorder, on the former trial of this case at January Term, 1843, excluding Wallace as a witness, and a decision of the District Court of the United States at Charleston, in a prosecution for breach of the Revenue Laws, to the same point.
    “I thought such agreements between informers and witnesses were corrupt in their character, and should not prevail in causes where the community in fact were plaintiffs.
    “I overruled the testimony, and the city attorney submitted to a non-suit, with leave to move the Court of Appeals to set it aside.”
    
      Porter, City Attorney,
    now -moved that the non-suit be set aside. He cited Greenl. Ev. 434, 432; 1 Phil. Ev. by C. & H. 47; and contended that the interest which excludes a witness must be certain, direct and legal. The witness was not entitled by law to any part of the penalty, and his agreement to share with the prosecutor his moiety was clearly illegal and void.
    If his interest was legal, then the release restored his competency; Greenl. Ev. 472. The defendant is driven to this dilemma. The interest was either legal and certain and could be released, or it was illegal and uncertain and did not affect the competency. He cited 1 Serg. & Rawl. 32; 17 lb. 312, to shew that the rule laid down in the case in Dallas, quoted by the Recorder, is not followed in Pennsylvania.
    Yeadon, contra.
   Curia, per

Wardlaw, J.

The interest which shall render a witness incompetent must be a certain, direct and legal interest in the event of the suit. An effectual release of such interest will restore the competency. An expectation of advantage, without such interest as the law would recognize., may affect the credibility of the witness, but cannot destroy his competency.

It seems in this case that the understanding between the witness and prosecutor was, even if explicit, a corrupt agreement from which no legal interest could arise. If any legal interest existed under it, that was released by the witness. A strict reliance of the witness upon the honor or generosity or selfishness of the prosecutor still subsisting may create bias, and may cast suspicion upon the prosecution, from the tendency of such reliance to evade the policy of the ordinances of the City Council, and to influence the feelings of the witness. But these matters are for the jury. The court, in deciding upon the admissibility of testimony, must be governed by the rule which holds all to be admissible, subject to certain exceptions, and must leave it to the legislative power to add to the exceptions from considerations of policy.

Let the non-suit be set aside.

O’Neall, Evans, Butler and Frost, JJ. concurred.

Richardson, J.

dissenting. I concur in the decision of the two successive City Judges, excluding the testimony of the police officer W. N. Wallace, as incompetent, on the ground of his practical self interest in the conviction of the defendant Weikman. His release of his share of the penalty to the City, was the release of nothing. For by the ordinance the marshall has no part, where he convicts upon his own evidence. But in order still to get a part of the penalty under the ordinance which gives one half to any one who shall prosecute to conviction, the marshal lodged his own information and knowledge. That is, his position and legal right of prosecuting Weikman, he lodges this with the City Council, not in his own name but in the name of one Dill. For what purpose and why ? To make Dill pass as the prosecutor, and of course get one half of the penalty. How and why'? By the conviction of Weik-man upon the oath of that very marshal Wallace. Wallace is thus to appear as a witness recognized by the prosecutor Dill, and of course disinterested and involuntary. The conviction follows, and Dill draws one half the penalty, to divide it with marshal Wallace, by the agreement known but to themselves. Now is it not plain, that the release of Wallace is merely colorable, without the release of his substitute Dill? Let it be assumed that under so collusive a contract, Dill will never be able to touch any part of the penalty, which may be likely enough ; still the immediate parties to it, Dill and Wallace, must be judged of under it, and as if it were a good and legal effective contract. The bias upon thejr minds is the same.

The objection, therefore, to the evidence, of Wallace, is even stronger than that held inadmissible in the case cited by the Judge, McVeaugh vs. Good, (1 Dallas, 62.) Because here was a positive agreement to divide the money to be obtained; and secondly, as justly observed by the Judge, “such agreements are corrupt”. Unless I misunderstand the case, it is palpably corrupt. D. lends his name in order to a get a certain percentage, contingent upon the conviction expected to follow W’s. oath. And Wallace is to get the balance, in virtue of his own transfer of the prosecution to Dill, and under Dill’s name.  