Opinion
(December Term, 1847.)
1. Where a witness is equally interested on both sides he stands indifferent.
2. And, therefore, where the plaintiff alleged that one W was indebted to him and the defendant agreed to pay the debt: Held, what W was a disinterested and therefore a competent witness.
APPEAL from the Superior Court of Law of WAYNE, at Fall Term, 1847, Manly, J., presiding.
Mordecai for plaintiff.
J. H. Bryan for defendant.
This was an action of assumpsit, The only question presented in the case is as to the competence of a witness. One William Westbrook, being indebted to the plaintiff, it was, as the plaintiff alleges, agreed between him and the defendant that the latter should pay the debt. No question is made as to the sufficiency of the consideration for the promise of the defendant or to its being by parol. On the trial Westbrook was tendered as a witness to prove the agreement between the plaintiff and the defendant. Objection was made to his competence and sustained by the Court, and the plaintiff was nonsuited. And from the judgment the plaintiff appealed.
We think there was error in the opinion given by his Honor below.
It is the well-settled rule that when the witness is equally interested on both sides he stands indifferent. Smith v. (80) Harris, 3 E. C. L., 238. There the action was for giving a false credit to Hollingsworth. His testimony was objected to, on the ground that he was interested, but was received by the Court, as he stood indifferent, being liable to the plaintiff for the goods sold if the action against the defendant failed, and liable to the latter if it succeeded. Upon the same principle the witness was held competent in the cases of Martineau v. Woodland, 12 E. C. L., 32, and in Hewitt v. Thompson, 12 E. C. L., 178, and in Collins v. Gwynn, 23 E. C. L., 380. In Lovet v. Adams, 3 Wendell, 380, a co-obligor was held to be a competent witness for the plaintiff to prove the execution of the bond. In this Court the same point has been decided in the cases of Ligon v. Dunn, 28 N.C. 133, and Cummins v. Coffin, 29 N.C. 196. And Justice Savage in Bank v. Hillard, 3 Cow., 160, lays down the rule we are discussing very much as Lord Kenyon does. To apply the principle of these cases to the present. The money sought to be recovered by the plaintiff was originally due from Westbrook, and the defendant, for a sufficient consideration, agreed with the plaintiff to pay it to him. Westbrook then stood entirely indifferent between the parties. If Cox paid the money to the plaintiff it would be either a voluntary payment made by him, which would give him no claim upon Westbrook for its return, or he would pay the money as a surety, in which case he would have a claim, and in neither case was Westbrook an incompetent witness. If the plaintiff failed in the action against Cox, Westbrook was still liable to him upon the original contract; if he succeeded he would be liable to Cox, not only for the amount of the debt, but for the cost expended by him in this case, so that his interest lay more in defeating than in sustaining the action.
We have looked into the authorities cited by the defendant, but do not think they interfere with the principle (81) which governs this case.
PER CURIAM. Judgment reversed, and venire de novo ordered.
Cited: Gidney v. Logan, 79 N.C. 217.