#### THE STATE, TO THE USE OF JAMES *B.*BISHOP. *vs.*HENDERSON POTEET & AL.

The interest, which excludes a witness produced in a suit, must be a legal and beneficial interest in the;subject matter, for the recovery of which the suit is brought.

It is not sufficient that a witness believes himself interested, if in fact he is not; nor is it sufficient, if he conceives himself bound in morality and honor to make good any loss, sustained by the person, in whose favor his evidence is to be given, in consequence of a judgment against him.

The leaning of the Courts,in modern times,is to let the objection,on the ground of interest, go to the credit, rather than to the competency of the witness.

The case of *Cox*v. *Wilson,*2 Ired. 234, cited and approved.

Appeal from the Superior Court of Law of Cherokee County, at the Fall Term, 1845, his Honor Judge Bailey presiding.

The defendant, as an officer, received from the plaintiff, through one II. Barnard, certain promissory notes for collection. The action is on his official bond, and the breaches assigned were for collecting and not paying over, and for negligence in not collecting. To sustain the plaintiff’s claim, H. Barnard was tendered as a witness ; and the sole question presented was, as to his competence. On his examination he stated, that, when he took the notes to hand to the defendant, there was no contract between him and the plaintiff, that ho. should receive any thing, by way of compensation for his trouble ; that he should not ask any compensation, nor was the plaintiff bound to pay any; that if he received any, it would be a mere gratuity on the part of the plaintiff. He was then asked by the defendant’s counsel, if a recovery was effected in the case, would he not expect some remuneration from the plaintiff for his trouble. He answered, “ yes, he did, he thought it was likely the plaintiff would give him something, but not because he was under any obligation to do so, for what he had done was a mere- act of friendship for the plaintiff” In *359another part of his examination he stated, that he had before done the same thing for the plaintiff, who had given him some money for his services. The objection was over-ruled by the Court, and there being a verdict and judgment for the plaintiff, the defendants appealed.

*Francis,*and *J. W. Wood/in,*for the plaintiff.

*Fdney,*for the defendants.

Nash, J.

We think the Judge below was correct in over-ruling the objection. The witness had no such interest, as would disqualify him from giving evidence for the plaintiff. It is the object of Courts of justice to ascertain the truth in every case brought before them. And to this end, such rules have been adopted, with respect to evidence, as are considered best calculated to its attainment ; some of them extremely arbitrary, and justifiable only as being a portion of a general system. Among these rules is that, which excludes a witness, without any regard to his moral standing, because of interest. It is not, however, every interest that does exclude a witness. A son has a deep interest in securing, or in adding to, the property of his father ; yet he is a competent witness for him, in a suit affecting even his entire property. The law says this interest is too remote. But the instant the father dies, the son is incompetent, because he then is interested directly in increasing or preserving a fund, to a distributive share of which, as next of kin, he is entitled. *Cox*v. *Wilson, 2*Ire. 234. The interest, then, which does exclude, must be a legal and beneficial one in the subject matter, for the recovery of which the suit is brought; or when he is called to protect or increase a fund, which a recovery in the suit will increase or diminish. The witness, Barnard, stands in no such position here. He expressly states, that, between him and the plaintiff, no contract existed as to compensation of any kind, that his services were those of a friend, and, in law, *360according to his testimony, amounted to a voluntary courtesy, for which no action could be maintained. It is said, however, by the defendant’s counsel, in argument, that the witness stated, he thought it likely the plaintiff would give him something for his services, and gave his, reason for so thinking. He had before performed similar services for the plaintiff, and he had given him money for it.; but he went on to state, that, if the plaintiff did give him any thing, *“*it would not be because he was under an obligation to do so.” A more full, direct and positive negation of *all*legal interest in the cause could not be given by a witness. It was at one time thought, and there are *dicta*to that effect, that, when a witness believed himself interested, though in fact he was not, he was rendered incompetent. The contrary doctrine is now'fully established. *Cumberland Bank*v. *Hughes,*17 Wend. 102, 8 Johns. 428. So also, if a witness conceive himself bound in morality or honor to make good any loss, sustained by the person, in whose favor his evidence is to be given, in consequence of a judgment against him, he is still a competent witness. *Gilpin*v. *Vincent,*9 Johns. 220. *Moore*v. *Hitchcock,*4 Wend. 297. *2nd vol. Smith’s leading cuse$,*99. These authorities shew, that the interest, which excludes a witness, must be a direct legal interest — otherwise, the objection is to the credit and not to the competency of the witness. The leaning of the Courts in modern times, I use the expression in reference to the old cases, is to let the objection go to the credit, rather than to the competency, where a doubt may arise. *Walton*v. *Shelly,*1 Term Rep. 300. *King*v. *Bray,*Rep. in time of Lord Hardwtcke, *Bent*v. *Baker,*3 Term Rep. 27. Here, there is ho doubt the witness had no legal interest whatever. It will be observed, that this opinion is confined to the question of the interest that disqualifies a witness, and not to the different modes, by which it may be tested ; as whether the verdict can be given in evidence for or against him, or his liability to costs.

*361We concur with his Honor, who tried the cause, that the witness had no such interest, as excluded him, but that the objection went to his credit.

Per Curiaw. Judgment affirmed.