#### MARTIN STEVENSON *vs.*SAMUEL A. SIMMONS.

A stockholder in a bank is not a competent witness to 'establish a debt due to the bank.

*13This was an action of assumpsit to recover a debt due to the Bank of Washington, tried before his Honor, Judge MaNly, at the Fall Term, 1856, of Beaufort Superior Court.

The plaintiff is the cashier of the bank of Washington. All jnotes of this bank are made payable to the cashier, and the note, out of which this debt grew, was thus made payable. It was executed by one Sutton, and means had been put into defendant’s hands to pay the debt at its maturity. And it was alleged in the declaration, that notice had been given to the defendant that he was held liable, and that he agreed to pay.

' The only question in the case was, whether one Iloyt, who was president of the bank, and also a stockholder in the same, was competent, as a witness, to prove the debt. His Honor admitted the evidence, subject to the opinion 'of the Court thereafter to be given. A verdict was taken for plaintiff, with an agreement, that if the opinion of the Court should be against the plaintiff, he would submit to a nonsuit.

On considering the question reserved, his Honor was of opinion adverse to the plaintiff, who thereupon took a nonsuit and appealed.

*/Shaw,*for the plaintiff.

*liodmcm,*for the defendant.

Nash, C. J.

In this case there is no error. The witness Hoyt was incompetent to testify in favor of the plaintiff. The action, though in the name of Stevenson, is, in fact, the action of the Bank of Washington, of which he is the cashier. Notes discounted in bank are made payable, not to the bank as a corporation, but to their cashier; the object being to remove all difficulty as to venue in suing on them. Of the bank of Washington Mr. Hoyt was a corporator. It is the common learning in questions touching the competency of witnesses, that one who is interested in the subject-matter in dispute, is incompetent to sustain his interest. And it is a general rule, if the'effect of a witness’s testimony will be to create or increase a fund, in which he is, or may, be, entitled to share, he *14is not competent. *Hudson*v. *Revitt,*5 Bing. 368 ; *Owens*v. *Collinson, 8*Gill, and John. 25, and the numerous cases brought together by Cowan and Hill’s notes — note 108, page 116, part 1st. Here, the effect of Mr. Hoyt’s testimony was directly to increase the funds of the bank of Washington, by the amount sought to be recovered by his testimony. He was then increasing a fund in which he was entitled to participate.

To this proposition it is replied, that a corporator *ex necessitate*must be admitted, or the bank would often be defrauded of its rights.

General laws are made for the community at large, and not for particular individuals or bodies of men, and they are not to be turned aside to suit any private interests.

The common law has established on this subject, a wide difference between a public and a private corporation. Of the former, are towns, counties, villages and others, formed for municipal purposes. The State itself is a municipal corporation. The individuals constituting such corporations, have always been admitted as witnesses for the corporation, (the witnesses having no individual interest and from absolute necessity). Refuse to admit them, and the wheels of government must stop. The State could collect no debt due to it where the debtor refused to pay; for the same interest which sets aside the witness, would disqualify him as a juror; for every citizen is a corporator. The doctrine is summed up by the Supreme Court of Ohio, in *The Methodist Episcopal Church of Cincinnati*v. *Wood,*5 Ham. 583. But if the corporation be for private purposes, as a bank, or turnpike company, one corporator is incompetent as a witness for his brother corporators. *Eustice*v. Pinkham, 1 New-Hampshire Rep. 275 ; *Union Bank*v. Rigeley, 1 Har. and Gill 324, 408. The whole doctrine was learnedly discussed in the case above referred to, *(Meth. Epis.*Church, *&c.,*v. *Wood,)*and the Court concluded as follows: “ Where corporations of a private nature, instituted for special purposes, and private emolument, such as banks, &c., bring suit, the interest of the *15corporators is cjjrect, and they are incompetent to testify in support ,of their claim.”

Theye is no error, and judgment of nonsuit affirmed.

Pee ' CueiaM. Judgment affirmed.