
    Stephen Cleverly v. Charles M’Cullough.
    
      Tried before Mr. Justice Richardson, at Fairfield, Spring Term, 1834.
    This was an action of assumpsit for work and labor done by the plaintiff in quarrying and cutting stone for the locks on the Rocky Mount canal, which, the defendant had contracted to build.. . .
    The only points of law considered in the ease which it is necessary to notice, were questions of evidence. Joseph Cleverly, the brother of the plaintiff, was offered as a witness on his part. He was objected to on the ground of interest. He stated that the plaintiff was regarded as insolvent — that he was largely indebted to him, and that unless he recovered in this action, the witness did not expect to receive his debt, but that if there should be a recovery he would expect to receive payment. It appeared, also, that the plaintiff had taken the benefit of the Prison Bounds Act, and made an assignment of his estate to all his creditors. The witness, however,, swear, ing that he_ had no direct interest in the event of the suit, was admitted. This witness had himself measured and superintended the measurement of a quantity of the work done, and made entries thereof in a memorandum book, which was produced, and by reference to which he could testify as to the quantity of work, but he was unable to speak of the details from memory, independently of the book. The defendant oh-jected to such evidence, insisting that the book could only be-resorted to to refresh the memory, after which the witness must testify from memory. The Court permitted the witness to testify as to the quantity from the entries in his book.
    
      A party is arc incompetentwitness to increase a fund out of which lie is to receive a dividend^ and where the plaintiff was in*, solvent, and had assigned his estate, under the Prison Bounds Act, to all his creditors, and a creditor was offered as a witness who said that if the plaintiff recovered he expected to be paid, otherwise not: Held, that the witness was-incompetent.
    
      The jury found a verdict for the plaintiff, and the defendant appealed, on the grounds, (among many others,) 1. That tlio witness, Joseph Cleverly, was incompetent. 2. That the Court erred in receiving his evidence, when he was unable to testify from memory after recurring to the memorandum book.
   Harper, J.

I am very much inclined to think, with respect to the first ground of the motion, that the witness, Joseph Cleverly, was incompetent. He clearly shews himself to be a creditor of Stephen Cleverly, and we cannot here undertake to say that the demand was barred by the statute of limitations. The assignment which is produced to us, endorsed on Stephen Cleverly’s petition to be discharged under the Prison Bounds Act, is not only for the purpose of discharging the debt and action upon which he was confined, but for the benefit of others of his creditors — that must mean all his creditors. Now the Prison Bounds Act only requires the assignment to be made for the satisfaction of the particular debt. But a man may voluntarily make an assignment for the benefit of his creditors, if he will, and I do not perceive that he is disqualified to make it to his assignees under the Prison Bounds Act. The assignees are not bound to accept it in this way, but if they do accept it, I suppose they would be compelled to perform the ti'ust. Then the principle applies which is sustained by the authorities referred to in the argument, (1 Phil. Ev. 52; 2 Stark. Ev. 770, and the cases there referred to,) that a party is an incompetent witness to increase a fund out of which he is to receive a dividend. This is not restricted, as argued, to the ease of the creditor of a bankrupt, who will be discharged from all future liability to his creditors. The assignees are trustees for the witnesses along with other creditors. It is receiving that direct benefit from the result of the suit which the law regards as disqualifying a witness, that the fund should be increased out of which he will be entitled to receive immediate payment, instead of being turned over to a future remedy against an insolvent debtor. No doubt, however, but that the witness may be rendered competent by releasing to the assignees any claim to the fund.

As to the second ground, we think that the rule has been misconceived which allows a witness to look at a memorandum for the purpose of refreshing his memory. The subject is fully considered in the case of the State v. Rawls, 2 N. & M’C. 331. The rule there established is, that if a memorandum were made by the witness at the time, with a view to perpetuate the recollection of the facts, and the witness can swear positively that the memorandum was made according to the truth of the facts, and consequently that the facts did exist, this is suffi. cient, though they may not remain in his memory at the time he gives his testimony. The English cases are those in which a memorandum made or copied by another person was used by the witness. How would it be possible otherwise to have testimony of facts which consist of a great variety of minute particulars? Here, from the memorandum, the witness did swear positively to the truth of the facts in the memorandum.

Gregg and Woodward, for the motion.

Clarke, contra.

Motion granted.

JoirasoN and O’Neall, Js. concurred.  