Opinion
June Term, 1842.
1. In an action by an administrator to recover a debt due to his intestate, a release by a distributee to the administrator of all his interest in the said debt, if recovered, and also a release by the administrator to the distributee of all claim upon him for any part of the costs of the suit, if he should fail, will render the distributee a competent witness for the administrator.
2. And per GASTON, J., the release by the distributee to the administrator will of itself render him a competent witness.
APPEAL from Dick, J., at Spring Term, 1842, of RANDOLPH.
Mendenhall for plaintiffs.
Winston for defendant.
The action was debt upon a bond given by the defendant to the plaintiffs' intestate. On the trial of the cause the execution of the bond was admitted, and the defendant relied on his plea of payment, and introduced witnesses to establish his plea. The plaintiffs then offered one Thomas Moffitt as a witness, who was objected to by the defendant on the ground that he was a son and one of the distributees of Hugh Moffitt, the intestate, which fact was admitted by the plaintiff. The said Thomas Moffitt then executed and delivered releases to the plaintiffs, a copy of which is as follows:
Know all men by these presents, that I, Thomas C. Moffitt, have released, and by these presents do release and discharge and forever acquit Charles Moffitt and William Moffitt, administrators of Hugh Moffitt, deceased, of all claim, interest, demand, right of action and recovery, for or on account of any part or portion, interest or claim, possibility thereof, which I have or can or may have to any share of the demand of $347.53, being a note or bond claimed by Tidence Lane by said administrators as due the estate of Hugh Moffit, deceased, with (255) a credit thereon of $37.40, 8 May, 1833, which note or bond purports to be due 2 November, 1832. And I make, execute, and now deliver this release for and in consideration of 5 shillings to me in hand paid by the said administrators, the receipt of which I hereby acknowledge. THOMAS C. MOFFITT. [SEAL]
24 March, 1841.
For the further consideration of 2 shillings to me in hand paid by the next of kin of Hugh Moffitt, deceased, I do hereby release to them and their assigns all my interest in the debt sued for by the administrators of the said Hugh Moffitt against Tidence Lane and now on trial.
THOMAS C. MOFFITT. [SEAL]
And I hereby release to the aforesaid William Moffitt and Charles Moffitt, administrators of Hugh Moffitt, deceased, for 2 other shillings to me in hand paid by them, a sufficiency of Hugh Moffitt's estate to satisfy all my portion of the costs which has accrued or shall accrue, and for which I may be liable in a suit now pending and on trial, by said administrators v. Tidence Lane.
THOMAS C. MOFFITT. [SEAL]
The plaintiffs also executed and delivered to the said Thomas C. Moffitt a release of which the following is a copy, viz.:
For 1 shilling paid down we hereby release to Thomas C. Moffitt all liability and charge from any and all costs accrued or which may accrue in a suit now on trial, ourselves against Tidence Lane. 1 April, 1842.
WILLIAM B. MOFFITT. [SEAL] CHARLES MOFFITT. [SEAL]
The defendant still objecting to the introduction of the said Thomas C. Moffitt as a witness, notwithstanding the execution and delivery (256) of the releases above set forth, the objection was overruled by the court, and the witness sworn and examined. The jury returned a verdict for the plaintiffs, a new trial was moved for and refused, and judgment being rendered pursuant to the verdict, the defendant appealed to the Supreme Court.
It is impossible to reconcile with each other the various decisions which have been made respecting the nature of the interest which disqualifies a witness from giving testimony. But the general principle unquestionably is that it must be a direct and certain interest in the event of the cause. Tried by this principle, I should think that the first instrument executed by the witness removed all objection to his competency. According to our law, every plaintiff, whether suing in an individual or a representative character, is bound to give sureties for the costs, and is personally responsible for them. When he sues as an executor or administrator bona fide for the benefit of those interested in the estate, he is entitled as against them to be reimbursed out of the estate, and, therefore, the residuary legatee or next of kin has a direct interest that the cause be successfully prosecuted, not only because in that event his legacy or distributive share will be increased, but because, in the event of failure, it will suffer diminution by reason of the costs to be reimbursed thereout. But when the residuary legatee or next of kin has assigned and released his beneficial interest in the subject-matter demanded, to the individual sustaining the character of executor or administrator, and such assignment and release are accepted, then all interest in the cause is extinguished. He has no longer a right to (257) the thing, if recovered; and he is no longer responsible for the costs if the thing be not recovered, because the suit is prosecuted, not for his benefit, but for the benefit of his assignee, the executor or administrator himself.
This, however, must be understood to be my individual opinion, and not that which I am authorized to declare as the opinion of the Court; and I also would add that it is an opinion which I shall be very willing to reconsider and to abandon should it prove erroneous.
But all the Court agree that when to this assignment is added the actual release of the executor or administrator to the legatee or next of kin of all liability for costs, as is done by the fourth instrument set forth in the transcript, then the witness stands indifferent, and is competent.
PER CURIAM. No error.