#### WILLIAM CARRAWAY *vs.*MOSES COX.

Where a witness is equally interested on both sides, he stands indifferent.

And, therefore, where the plaintiff alleged, that one W. was indebted to him and the defendant agreed to pay the debt, *held*that W. was a disinterested and therefore a competent witness.

The cases of *Ligón*v. *Dunn,*6 Ire. 333, and *Cummins*v. *Coffin,*7 Ire. 196, cited and approved.

Appeal from the Superior Court of Law of Wayne County, at the Fall Term, 1847, his Honor Judge Manly presiding.

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 non-suited. And from the judgment the plaintiff appealed.

*Mordecai,*for the plaintiff.

*J. H. Bryan,*for the defendant.

Nash, J.

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. *80*Smith*v. *Harris,*3d Eng. Com. L. R. 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 and others*v. *Woodland,*12 E. C. L. R. 32, and in *Hewitt*v. *Thompson,*12 do. p. 178, and in *Collins*v. *Gwynn,*23 E. C. L. R. 380. In the case *Lovet*& *Browne*v. *Adams*& *others,*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. *Bunn,*6 Ired. 133, and *Cummins*v. *Coffin,*7 Ire. 196. And Justice Savage in the *Bank of Utica*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 hs would be liable to Cox, not only for the amount of the debt, but for the costs 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 de» *81fend ant, but do not think they interfere with the principle which governs this case.

Per Curiam. Judgment reversed, and *venire de novo*ordered.