Opinion
June Term, 1826.
The plaintiff was security for one G. The defendant, the administrator of the creditor, obtained judgments at law against the principal and surety in a joint action. Plaintiff filed his bill to be relieved against the judgment, on the ground that he was discharged in equity by the laches of the holder. G. is not a competent witness to prove the truth of plaintiff's bill.
FROM WAKE. This was a bill filed by the complainant, as a surety to one Glynn, against the defendant, as the administrator of George Nichols, deceased, who was the obligee in the bond, alleging that a short time after the bond was due, the principal offered to pay and discharge the same to the obligee, who refused to accept it, and gave further (369) time to the principal to pay the bond, without the knowledge or assent of the complainant; that afterwards the principal again called on the obligee in his lifetime, and offered to pay a part of said bond, when Nichols stated and agreed with the principal that he, the said principal, should not pay the said bond, but that the said Nichols might still keep it to harass the complainant; and that on several other occasions the same language was held by the said Nichols; and on one occasion the said Nichols promised said principal to surrender up said bond; that he has died without doing so; that Glynn has become insolvent; that the defendant has sued the complainant and principal at law, and prays an injunction and general relief.
Haywood for complainant.
Attorney-General for defendant.
The defendant, in his answer, denied any personal knowledge of the matter, and put the complainant to proof. The only evidence was the deposition of Glynn, the principal, who supported the allegations of the bill throughout.
The question presented was whether the principal in the bond is a competent witness to prove the equity of the bill.
The complainant Cannon was surety for Glynn, in a note given to Nichols, whose administrator, Jones, instituted a suit upon the same, and effected a recovery. The complainant has satisfied the amount of the judgment, and enjoined it in the master's office to abide the event of a decree in this cause. He claims to be discharged by the negligence and forbearance of the payee during his lifetime, and of his administrator since his death, who he alleges might have received the money from the principal. To establish the facts on which he founds his equity, he offers the evidence of Glynn, the principal, and the single question in the case relates to his competency. (370)
It is a general rule that persons who have an immediate interest in the event, as being liable to the costs of action, are incompetent witnesses. Thus, bail may not give evidence for their principal, because they are immediately answerable in case of a verdict against the defendant. In an assumpsit for goods sold, the plaintiff having proved the sale of the goods to the defendant and one J. S., who were partners in trade, it was held that J. S. could not be a witness for the defendant to prove that the goods were sold to himself and that the defendant was not concerned in the purchase, except as his servant; for by discharging the defendant he benefits himself, as he would be liable to pay a share of the costs to be recovered by the plaintiff. Peake, N. P., 174. Though Glynn is liable to the payment of this money either to Jones or Cannon, yet he is evidently interested to defeat Jones's action against Cannon, since in so doing he would be liable to Jones only in the costs of one suit; whereas if Jones recovered against Cannon, the latter may recover against Glynn the costs which he has paid in the suit brought by Jones. There is consequently a certain benefit resulting to Glynn if Jones fails in the suit, and a certain disadvantage if he succeeds.
This precise question came before the Supreme Court of the United States, and it determined that the principal obligor in a bond is not a competent witness for the surety in an action upon the bond; the principal being liable to the surety for costs in case the judgment should be recovered against him. Riddle v. Moss, 7 Cranche, 206.
But the witness offered is under an additional disqualification, by our act of 1797, ch. 487, which allows a surety, who has paid money for his principal, to recover the same by a citation and motion in a summary way, without resorting to an action. Upon these grounds I think there is no doubt of Glynn's incompetence.
The other judges concurred. Judgment accordingly.
(371)