#### Parley Eaton, Pl'ff in Error, *vs.*Stephen Gentle, who sues for the use of Charles Tracy, Def't in Error.

When a witness has a direct and immediate interest in the subject matter of-a suit, he will be excluded if called upon, to testify in favor of such interest.

The true test of the interest of a witness, is whether he will gain or lose by the direct legal operation and effect of the judgment in the cause; or, whether the record will bo legal evidence for or against him, in some other action. But this rule does not extend to agents, carriers, factors, brokers, or other servants, as to acts done within the scope of their employment.

A Sheriff, who pays money collected on execution, to the 'attorney of the plaintiff, is- a competent witness fpr tho plaintiff, in an action brought by him against his attorney, for.the mpney received from the Sheriff. It being competent for the Sheriff to pay money, collected on an execution, to the attorney of the plaintiff, does not disqualify him from testifying to the fact, in order to fix the liability of the attorney. His is a case excepted from the general rule.

*11Error to the District Court for the County of Iowa.

This was an action of Assumpsit, for the recovery of money alleged to have been had and received by the plaintiff in error, for the use of Charles Tracy; and for which the defendant in error instituted the suit for the use and benefit of Tracy. The plaintiff in error pleaded non assumpsit.

The cause was brought to trial at th,e October term of the District Court for Iowa County, in the year 184?; and by a stipulation and agreement between the attorneys, on either side, a jury was dispensed with, and ‘the cause was tried by and before the District Judge; who,, after hearing the proofs of the parties, adjudged and-determined, that the defendant in error recover against the- plaintiff in error, the sum of eighty-seven dollars and twenty-eight cents.

On the trial of the cause, the defendant in error produced-James H. Gentry, former Sheriff of Iowa County, and Moses Whitesides, to prove that certain monies had been paid to the plaintiff in error, as the attorney of the defendant in error, in the suit of Gentle vs. Perry. The plaintiff‘iri error objected .to .Gentry’s being sworn, upon the ground of interest; and to prove his interest, h§ produced an execution issued in the c.ause of Gentle us... Perry; on the back of which was endorsed by Gentry, Sheriff, that he had the sums named in the writ to render, to Stephen Gentle, as within he was.,commanded. The Judge overruled the objection, and admitted Gentry to testify. An exception was taken tq. the ruling of the Judge.

This witness proved,that shortly after he had made the before mentioned .endorsement on the execution, he paid the amount called fo.r by. the execution, to the plaintiff in. *12error, as the attorney of Stephen Gentle, with the ex» ception of fourteen dollars, and for which latter sum the witness had an order from Gentle, for money due the witness.

Moses Whitesides p'roved a conversation between himself and the plaintiff in error, some years before the trial of the cause, stating therein that he had called upon the plaintiff in error, at the request of the defendant in *error-,*for the money collected on the execution against Perry-; at which time, the plaintiff in error pretended that the money was in the hands of Doct. Sherry-, the former Clerk of the Court, but then dead; and. that *there*was no other mode of recovering it than by suit against the bail of Sherry. The plaintiff in error admitted in this conversation that he had received his fees as attorney of Gentle.

No exception was taken to the testimony of Whitesides.

.Cothren, for plaintiff in error.

*Dunn and Crawford,*for defendants in error.

*Bij the Court*

Wiiiton, J.

This action was brought by the defendant in erroi* against the plaintiff in error, in the late District Court of Iowa County, to recover a sum of money, alleged to have been collected by him, as the attorney of the defendant in error. The parties having waived a jury, the case was tried by the Judge. The errors relied upon by the plaintiff in error, to reverse the judgment, appear in the assignment of errors, which is ■as follows: — 1st. The Court erred in refusing to exclude 'the evidence of the witness, James H. Gentry, and in receiving the same after his interest had been shown.— 2d. The Court erred in rendering judgment against the *13plaintiff on the proofs presented. 3d. The judgment of the Court was contrary to law and the evidence in the case.

The bill of exceptions shows that, on the trial, the witness, Gentry, was called upon to testify on the part of the defendant in error, and objected to by the plaintiff in error, on the ground of interest. To prove his Interest, the plaintiff in error produced an execution issued on a judgment, recovered in the District Court of Iowa County, at a previous term, in favor of the defendant in error, against one Peter Perry, on which there was an endorsement by the witness, (who, at the time of making it, was the Sheriff of Iowa County) in the following words: “ I have the sum named in the within writ, to render unto Stephen Gentle, as within I am commanded.

JAMES H. GENTRY,

April 2d, 1838. *Sheriff.”*

The Judge who tried the cause being of the opinion that the proof adduced did not establish such an interest in the witness as ought to exclude him, permitted him to testify. He testified that a few days after the endorsement was made on the execution, he paid the amount collected, to the plaintiff in error, as the attorney of the defendant in error, with the exception of fourteen dollars, for which he had an order from the defendant in error, for money due the witness; which order was paid and allowed by Eaton, as the Attorney of Gentle.

It is insisted by the plaintiff in error, that the witness had a direct interest in favor of the plaintiff below, inasmuch as, if a judgment was obtained against Eaton in the suit, the witness would be discharged from his liability to pay to Gentle, the money collected for him on the execution,

*14The general doctrine on the subject, as understood by the Court, is, that when a witness has a direct and immediate interest in the event of the suit, he is excluded, if called upon to testify in favor of his interest.

The true test of the interest of a witness is, that he will either gain or lose by the direct legal operation and effect of the judgment, or that the record will be legal evidence for or against him in some other action. *I Greenleaf on Evidence, Set.*390. To this rule there are many exceptions. It does not extend to agents, carriers, factors, brokers, or other servants, when offered to prove any acts done within the scope of their employment.. Thus, a clerk who has received money, is a competent witness for the party who paid it, to prove the payment, though he is himself liable on the receipt of it. *Mathews v.*Hayden, 2 *Esp.,*509; a factor who sells for the plaintiff, and is to have a per centage on the amount, is a competent witness 'to prove the contract of sale. 8 *B. and C.,*407. The exception extends in principle, to every species of agency, or intervention, by which business is transacted. *t*

Is the witness, Gentry, within the rale, or the exception? He had an execution in his hands, as the Sheriff of Iowa County, against the property of Perry, and by the endorsement on the back of it, the collection of the money by him was clearly established — and if the plaintiff below prevails in the action, the liability of Gentry to pay the money over to the plaintiff below will be extinguished. . By his return on the execution, his liability to the plaintiffbelow, for the amount of the execution, was clearly proved; and to permit him to testify, it is said, will violate the well settled rule governing cases of this kind „

*15But we are of opinion that the case falls within the exception. Gentry, the witness, was the Sheriff of Iowa County,and it was his duty to pay the money over to the person entitled to receive it after its collection; and the plaintiff-in'error, as the attorney of Gentle, was the proper person to whom to pay it. The Sheriff may be considered as the agent of the plaintiff below, for the purpose -of collecting the money, and paying it over to him, or his attorney in the suit; and the payment, testified to by the witness, was a payment in the ordinary course of his business or employment.

The other errors assigned are all similar and may be' considered together: they allege substantially that the Court erred in rendering judgment against the plaintiff in error, for the reason that it was against the law and the evidence in the case. The bill of exceptions states, that a witness by -the -name of Moses Whitesides, was introduced by the plaintiff below, who testified that, some two or three .years before, he called upon the plaintiff in error, at the request of Charles Tracy, (for whose use the suit was brought,) for the money collected on the judgment' and execution alluded to; that the plaintiffin error appealed to be dissatisfied with the conduct of Tracy, but said nothing which can be construed into a denial of the fact testified to by Gentry. It was stated in the argument of the counsel for the plaintiff in error, that he could not be charged in this action without proofs of a demand upon him for the money which he had received, as the attorney of the defendant in error, and it was for an alleged failure in the proof, to establish the fact of a demand, that the counsel contended that the proof was not sufficient to justify the decision of the Judge, on the question of fact submitted to him.

*16Generally an action cannot be maintained against an Attorney for money collected by him for his client, "without proof of a demand and refusal to deliver it; or of a conversion of it by the Attorney. But we think that the testimony of Whitesides establishes the fact of a demand upon the plaintiff in error, and that the decision of the Judge was correct upon the question submitted to him. Judgment affirmed with costs and ten per cent, damages.

Judgment affirmed.