#### HUGH MOFFITT’S ADMINISTRATORS vs. TIDENCE LANE.

jn an a(>tton by an administrator to recover a debt due to bis intestate, a --release by a distributee to the administrator of all liis 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.

And per Gaston, J. the release by the distributee to the administrator will of itself render him a competent witness.

This was an appeal from the Superior Court of Law of Randolph county, at Spring Term, 1842, his Honor Judge Dick presiding. The action was debt opon a bond given by the defendant to the plaintiff’s intestate. On the trial of the cause the execution of the bond was admitted, and the defendant relied on his plea of payment, aud introduced witnesses to establish his plea. The plaintiffs then offered one Thcmas 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 Moffittt 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, dec’d, of all claim, interest, demand, right of action and recovery, for, or on account of, any part or portion, interest or claim, or possibility thereof, which I have or can or may have to any share of the demand of $347 53 cents, being a note or bond claimed of Tidence *255Lane by said administrators as due the estate of Hugh Mof-fitt, dec’d, with a credit thereon of $37 40 cents, the 8th May, 1833, which note or bond purports to be due the 2d day of November, 1832. And I make, execute, and now deliver this release, for and in consideration of five shillings to me in hand paid by the said administrators, the receipt of which I hereby acknowledge.

THOS. C. MOFFITT, (Seal.)

March 24th, 1841.”

“ I hereby, for the further consideration of two shillings to me in hand paid by the next of kin of Hugh Moffitt, dec’d, 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 oh trial.

THOS. C. MOFFITT, (Seal.)”

“ And I hereby release to the aforesaid William Moffitt and Charles Moffitt, administrators of Hugh Moffitt, dec’d, for two 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 have accrued or shall accrue, and for which I may be liable in a suit now pending and on trial, said administrators *vs.*Tidence Lane.

THOS. 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 one 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. April 1st, 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 execu*256tion and delivery of the releases above *set*forth, the objec-^on was overru^e^ 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.

*Mendenhall*for the plaintiffs,

to shew that after the releases were executed the witness was competent, cited the following *cases:*— Moffitl v Gaines, 1 Ired. Rep. 158. *Perry*v *Fleming,*2 Car. L. R. 458. *Torrance*v *Graham,*1 Dev. & Bat. 284. *Jones*v *Brooke,*4 Taunt. 464. *Burgess*v *Cuttill,*25th Eng, C. L. Rep. 398. *Woods v Williams, 7*Johns. Rep. 123. *BuUcv Dayton,*14 Johns. Rep. 357.

*Winston*for the defendant,

cited *Baker*v *Tyrwhitt, 3*Camp. -N. P. 27. *Bell*v *Smith,*11 Eng. C. L. R. 198.

Gaston, J.

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 unquestioably 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 re-imbursed 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 *257and release are accepted, then all interest in the cause is extinguished. He has no longer a right to 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. The judgment must be affirmed with costs.

Per Curiam, Judgment affirmed.