#### Nathaniel Gist, A. V. Jeter, and William Moore *v.*James Rodgers.

James Dugan, by deed dated the 3d of April, 1832, gave to Robert M’Daniel, Nathaniel Gist, Argulous Jeter and William Moore, a large estate, consisting of lands, negroes, stock and debts, to be equally divided among them: “ to them and their heirs forever; provided, nevertheless, that the above-named Robert, Nathaniel, Argulous and William pay all my just debts, and furnish myself and my beloved wife, Frances, each, with two hundred dollars annually, to commence from this day.” The property went into the possession of the donees, and James Dugan had been dead some years. The plaintiffs in this case, the donees under the deed of James Dugan, found among his papers an instrument of writing, in these words: “ Received of James Dugan three negroes, say Judy, Harriet, and Mary, for the special benefit of Park Dugan’s children ; that is to say, Mary J. Dugan, Jane J. Dugan and Eliza M. Dugan, for *the ave*right to said property. Witness my hand and seal, this 9th Jan’y, 1830. (Signed) James Rodgers, Test, J. M. Smith. Price, Judy, $450 — Harriet, $300 — Mary, $200= $950.” After the death of James Dugan, the plaintifls required of Rogers a note for the price of the negroes, which he gave. The present action was on the note, which Rodgers (who was the step-father of Park Dugan’s children, and their guardian,) contended he ought not to pay, because the negroes were given by James Dugan to *80Park Dugan’s children. The main question in the case was, whether the negroes had been so given ! To explain the transaction, and to prove that there was *no gift,*Mrs. Dugan, the widow of James Dugan, was offered as a witness, by the plaintiffs. She was objected to, and the objection sustained in the court below, on the ground of interest. Held, on a motion for new trial in this court, that Mrs. Dugan was a *competent*witness, and that her testimony should have been received, and a new trial granted on that ground.

Where the interest of a witness is of a doubtful nature, it goes to the credit, and not to the competency. A party has such a direct and immediate interest as will disqualify him, when the necessary legal consequence of the verdict will be to better Ins situation, either by securing an advantage or repelling a loss: *he must he a gainer or loser hy the event.*

I cannot see that Mrs. Dugan will be a gainer or loser by the event of this suit. It is barely *possible*that the loss of this fund will endanger the payment of her annuity. — Per Evans, J.

*Before GANTT, J., at Union, Fall Term,*1838.

This case came up on a motion for a new trial. His honor, the presiding judge before whom the cause was tried, makes the following report: “ This was an action of debt on two sealed notes — one for #460, the other for #950 — both bearing date the 4th March, 1833 ; and the only question growing out of the case respects the consideration of the note for #950, it being admitted that the plaintiffs were entitled to recover on the note for #460.

The note of #950 was obtained by the plaintiffs of the defendant, under the following circumstances: James Dugan, during his life, acquired a considerable property, and having no children, he conveyed all his estate by deed to the plaintiffs, who had intermarried with his step-daughters, the children of his wife by a former husband. Thus entitled to the éstate of James Dugan, they found among his papers a written instrument, of which the following is an exact copy: “Received-of James Dugan, three negroes — say Judy, Harriet, and Mary; for the special benefit of Park Dugan’s children — that is to say, Mary J. Dugan, Jane J. Dugan, and Eliza M. Dugan, for the ave right to said property. Witness my hand and seal, this 9th January, 1830. (Signed) James Rodgers. Test, J. M. Smith. Price, Judy, #450 — Harriet, #300 — Mary, #200= #950.” On the back of the foregoing *81instrument, is endorsed the following: “Received of James Rodgers, á note of hand payable the 1st day of January, 1834, drawing interest from the 9th day of January, 1830, in payment for the within named negroes, at #950 00. Given under our hands and seals, this 4th day of March, 1833, (Signed) William Moore, Nath’l. Gist, A. V. Jeter, Rob’t. M’Daniel.”

“ Park Dugan was the brother of James Dugan, both sons of Thomas Dugan, deceased. James Dugan was the executor of Thomas Dugan; and it appeared in evidence, that the negroes mentioned in the receipt of Rodgers to the plaintiffs, constituted a part of the estate of Thomas Dugan. James Rodgers married the widow of Park Dugan, and was appointed guardian of Park Dugan’s children. The paper signed "by James Rodgers, was written by James Dugan ; and whether it was designed as a gift of the negroes, to the, children of his deceased brother, or a sale of them, was the question. From the evidence furnished, and the charge of the court, the. verdict was for the defendant, as respects the #950 note; and I thought the verdict a righteous and proper one. — The evidence I enclose, to be inspected, if necessary: the important facts made to appear by the evidence, and to which I attached importance, were that the negroes mentioned in the receipt of Rodgers to James Dugan, belonged to the estate of Thomas Dugan; that *Park Dugan*was one of his representatives, and that James Dugan was *executor*of Thomas Dugan.

The counsel for the defendant contended, that the receipt signed by Rodgers evidenced nothing more than that he had received the negroes mentioned therein, as belonging to the children of Park Dugan. For the plaintiffs, it was insisted that the valuation of the negroes, at the bottom of the receipt, was per *se. proof*of the sale of the negroes, confirmed by James Rodgers, having given his note for the amount.

Whether the 1st and *2d*grounds taken for a new trial can avail the plaintiffs, will depend upon the circumstances under which the first witness was allowed to be sworn, and the last not: I refer to my notes for particulars.

On the 3d ground, I have to observe, that the very fruitful imagination of the learned counsel, actuated by too ardent a zeal in a *82cause which would seem to forbid it, has induced him to say what, I feel assured, his liberality will induce him to retract. The phraseology in the receipt was not changed by the court, in the charge to the jury, to suit the construction put upon the instrument, by the presiding judge.' In the argument, “ the ave ” was read “ they own,” with the writing before me. I stated, that the correct reading would be “ they have right,” &c.; contractions of that kind being very common in speaking.

On the 4th ground, I stated to the jury, that one of two views, it appeared to me, must necessarily be taken, in giving construction to the receipt, with its accompaniment of value placed on the negroes: either, that it was intended as a donation of the negroes to his brother’s children, or, that so much had been paid to the children, of their distributive share of Thomas Dugan, their grandfather’s estate.

On the 5th ground, I have to remark, that from the evidence, I was induced to think, that the negroes constituted a part of the estate of Thomas Dugan, and of whose estate James Dugan was executor: that, having a right in law to dispose of the property, James Dugan had either given the negroes to the children of his deceased brother, as property belonging to him, o^ designed it (as before noticed,) as a payment of what they were entitled to, of their grandfather’s estate ; and, I stated to the jury, “ expressly and distinctly,” that no privity existed, in law, between the plaintiffs and the estate of Thomas Dugan, and that they could not, in their individual characters, recover in this action for property belonging to the estate of Thomas Dugan, under the deed of gift by James Dugan to them.

I have no distinct recollection of what was said to the jury, as furnishing matter for the 6th ground; but, I entertain no doubt that I did say, substantially, what is set forth: that if the pleadings had presented the facts as, I had no doubt, they existed, that I would have ordered a nonsuit, on the ground that the plaintiffs had no more right to the property than the foreman of the jury, or the presiding judge.

I have little to remark on the 7th ground. Mr. Hill, the assistant counsel of the plaintiffs, did, as I thought,-oiler some observations, by way of apology for bringing of the suit, and that the *83plaintiffs would not be entitled to hold the money, when recovered. I did not well understand the motive assigned for bringing the action, by the remarks he made.

On the 8th ground, I am satisfied as to the correctness of the observation stated to have been made by me, although I have no' recollection of it. Upon the whole, after making many remarks to the jury, impressed as I was, with a consciousness of the groundless nature of the suit, I concluded by saying to them, that the counsel had put the case on the question of gift or no gift, by James Dugan, of the negroes, to the children of Park Dugan, recommending them to confine their attention to that view, exclusively.”

The verdict of the Jury, his honor states, was in favor of the defendant, as respected the note of $950.

The plaintiffs appealed, and now move this court for a new trial, on the following grounds: 1. Because his honor erred in permitting Mrs. Clark to be sworn as a witness, to prove that the negroes in question had been given to her and her sisters; when it appeared that her husband had indemnified Rogers from any liability on account of the note and interest and costs about this suit; and her husband was in other respects interested in the event of the suit. 2. Because his honor erred in deciding that Mrs. Dugan was an incompetent witness. 3. Because his honor charged the jury, that the receipt for the negroes signed by the defendant, formed the pivot upon which the case must turn, and altered and added to the phraseology of the receipt, so as to suit his own. construction of its meaning; saying to the jury, that it should be read in order to be grammatical “ that they (meaning the children of Park Dugan) have the right to said property,” when no such sentence is to be found in the receipt. 4. Because his honor said to the jury that he would defy the philosophy of man to put any other than one of two constructions on the receipt, “ either that Dugan intended the negroes as a donation to Park Dugan’s children, or that they have the right (adopting his own phraseology,) to the negroes, because they had descended from their grandfather as a part of their legacy.” 5. Because his honor assumed the fact, that the negroes at the date of the receipt, belonged to the estate of Col. Thomas Dugan, and charged the jury expressly and distinctly, as it did not appear *84that the plaintiffs were the executors or administrators of that estate, and James Dugan held the negroes in the character of executor, that the plaintiffs had no right to recover; and stated that Col. Gist, who was a sensible man, must be satisfied of it, it being so plain and obvious. When the defendant rested his defence bn the ground that the negroes had been given by James Dugan, thereby acknowledging title in him; and the defendant had given his note for the price of the negroes to the representatives of James Dugan,'and the counsel for the defendant, neither by the pleadings or argument in 'the case, ever once questioned that the right of property was in James Dugan when he delivered the negroes to the defendant. 6. Because his honor charged the jury that if a demurrer had been filed to plaintiffs’ declaration, he would have turned the case out of court — when the action was on a sealed note and defendant’s signature admitted. 7. Because his honor misunderstood the counsel for the plaintiffs, and said to the jury in so many words, that he could not see what the plaintiffs were sueing for, as the counsel admitted that they could not recover ; when all that the counsel ever intended to say, or did say, was, that if Rodgers had been guardian of the children of Park Dugan, at the date of the receipt, and had received the negroes in part payment of the legacy due from their grandfather’s estate, that this suit would have been unnecessary, as the price would have been accounted for in the court of equity. And when the concluding counsel for the plaintiffs called the attention of the court to the plaintiffs’ right to sue, and asked the court to charge expressly on that point, the defendant’s attorney on record stated, that he did not insist on that ground, but rested the case on the question of gift or no gift, which was acquiesced in by plaintiffs’ counsel, and nothing further said on the subject. 8. Because when his honor was charging the jury that it did not appear to him that these plaintiffs had any right to sue, and his attention was called to the facts proven by Mr. Thomson, that the business of the estate of Thomas Dugan was now the subject of settlement in the court of equity, where the plaintiffs here and the children of Park Dugan were parties, he unhesitatingly said *“*that those facts had nothing to do with the case.” 9. Because the verdict was against law and evidence.

*85Curia, per Evans, J.

There are nine grounds- set out in the notice of appeal: but, as there must be a new trial on the second, it is thought unnecessary and improper to express an opinion on any of the others; and more especially, as they relate mostly to the facts of the case. The second ground is, that the court below erred in rejecting the testimony of Mrs. Dugan. — To understand this ground, it will be necessary to state some of the facts. James Dugan, by deed,'dated the 3d April, 1832, gave to Robert M’Daniel, Nathaniel Gist, Argulous Jeter and William Moore, a large estate, consisting of lands, negroes, stock and debts, to be equally divided *amongst*them — “ to them and their heirs forever,” — provided, nevertheless, that the above-named Robert, Nathaniel, Argulous and William pay all my just debts, and furnish myself and my beloved wife Frances, each, with two hundred dollars annually, to commence from this day.” — The property went into the possession of the donees, and James Dugan had been dead some years. The plaintiffs found, among James Dugan’s papers, an instrument of writing in these words. “ Received of James Dugan three negroes, say Judy, Harriet and Mary, for the special benefit of Park Dugan’s children; that is to say, Mary J. Dugan, Jane J. Dugan and Eliza M. Dugan, for *the ave*right to said property. Witness my hand and seal, this 9th January, 1830. (Signed) James Rodgers. Test, J. M. Smith. Price, Judy, #450; Harriet, #300 ; Mary, #200,= #950.”

After the death of James Dugan, the plaintiffs required of Rodgers a note for the price of the negroes, which he gave. This action was on the note, which Rodgers (who was the step-father of Park Dugan’s children, and their guardian) contended he ought not to pay, because the negroes were given by James Dugan to Park Dugan’s children. The main question, as I understand, was whether the negroes had been so given. To explain the transaction, and to prove there was no gift', Mrs. Dugan, the widow, of James Dugan, was offered as a witness. She. was objected to, and the objection sustained by the court, on the ground of interest. The estate of James Dugan, which was conveyed to the plaintiffs, was a large one, and it is admitted they are all men of wealth.— If James Dugan’s estate had been insolvent, and the annuity of *86Mrs. Dugan was charged upon.,it, and she was likely to lose it, unless the note was recovered, then I could see some force in the objection. Can the decision of this case increase or diminish her annuity, or secure or jeopard the payment of it, according to the deed ? Are not the plaintiffs bound to pay, at all events, whether they recover or not ? The plaintiffs, by accepting the property, have become her debtors ; and has it ever been decided that a creditor is not a competent‘witness for Lis solvent debtor? I know of no such case. The only cases which favor any such idea, are cases brought by administrators of insolvent estates. In such cases, a creditor has been held incompetent, because the recovery would create a certain fund out of which his debt would be paid. The case of Craig v. Cundell, 1 Camp. 381, was an action of assumpsit by an administrator. The witness said he had. a demand against the estate, but no prospect of payment, as the estate was insolvent. Lord Ellenborough said, “ at present, the witness has no means of obtaining satisfaction. If the plaintiff succeeds, there will be a fund out of which he may be satisfied. He gives evidence to get money for himself, through the administrator, who may be considered his trustee.” Starkie says, (Part 4. 746,) “ where the interest is of a doubtful nature, it goes to the credit,rand not to the competency. A party has such a direct and immediate interest as will disqualify him, when the necessary legal consequence of the verdict will be to better his situation, by either securing an advantage or repelling a loss. He must be a gainer or loser by the event.” The same position is laid down by Buller, J., in Carter v. Pearce, 1 T. R. 164. I cannot see that Mrs. Dugan will be a gainer or loser by the event of this suit. It is barely possible that the loss of this fund will endanger the payment of her apnuity. The motion is therefore granted.

*Dawkins,*for the motion.

*Herndon,*contra.

O’Neall, Earle, Butler and Richardson, Justices, concurred.

Gantt, J., dissented.