#### Eleanor Spann, adm'x *v.*John Ballard.

The general rule established by all the cases is, that to render a witness incompetent on *the ground of*interest, his interest in the event of the suit should be a present, certain and vested interest, and not uncertain and contingent.

Where in an action by an administratrix for the recovery of a debt due to the intestate, one of the heirs at law, and a distributee of the estate who had received his share and settled with the administratrix, was offered as a witness and objected to on the ground of interest, the witness executed and tendered an assignment or release of all interest in *the*recovery ; it was still contended he was incompetent by reason of his liability to refund, in case of further claims against the estate not yet exhibited. Held, in the absence of any proof of outstanding demands or deficiency of assets in the hands of the administratrix, that the supposed interest of the witness in increasing a fund out of which he could receive no dividend, was too remote and contingent to sustain the objection.

Where a bill drawn by the defendant on the plaintiff’s intestate, payable to a third person or order, and indorsed *by the*payee with a receipt of payment on the back of the bill by another person, was in the possession of the drawee, Held that the presumption of payment arising from the possession of the bill was insufficient, without proof that the receipt was in the hand writing of a person entitled to demand payment, or other sufficient evidence of payment aliunde.

*441
      *Before EARLE, J., at Sumter, Spring Term,*1839. •

The report of his honor, the presiding judge is as follows:

“ The defendant, together with one William R. Lenoir, drew a joint order or bill upon the plaintiff’s intestate, Charles Spann, jr., who was a factor in Charleston, for a debt of Lenoir, payable to one Baskett or order, and endorsed in blank. The plaintiff produced the bill which by a receipt on the back, appeared to have been paid to a person whose name did not appear upon it. James T. Spann, a son of the intestate and of the plaintiff, his widow, was produced as a witness, and was objected to on the ground of interest in the subject of the suit. He tendered an assignment and release. It was replied that the ground of objection was, that the witness, as one of the heirs at law, was liable to refund, in case of future debts being exhibited against the estate, and was therefore interested in increasing the fund in the hands- of the administratrix. The other ground of objection being waived, I thought this latter interest too remote and contingent to render the witness incompetent. ' He deposed that the bill was paid on presentment to the drawee in Charleston. That he called on the defendant after the death of the intestate, for payment, who admitted that he had given or drawn the bill, that it had been paid and that he was liable ; but objected to pay it, because he had given directions to retain the amount out.of the proceeds of Lenoir’s cotton, which had been sent to the intestate, and been sold by him. The proceeds had been applied to other orders drawn by Lenoir. It was proved that Lenoir had sent seventeen bales of cotton to the intestate.

It was objected on a motion for nonsuit, that the proof of payment by the drawee was insufficient. That it was not proved to have been made to a person authorized to receive it. I held that proof of the transfer was not indispensable, as there was other evidence of payment than the mere possession of the paper, and left it to the jury whether in fact the sum had been paid or reimburs*442ed out of the proceeds- of Lenoir’s cotton. They foun^l for the plaintiff.’ ■■ -

The defendant appealed, and now moved for a new trial on the following grounds:

1. That the testimony of Mr James T. Spann was improperly admitted ; he was a distributee of the intestate, and having received his share of the estate, would be liable for any debts which the estate may now or hereafter be made liable for.

2. That there was no satisfactory and legal proof of payment to a party entitled to receive.

3. That the intestate received funds of Wm. R. Lenoir, one of the drawers, sufficient to pay the draft, and ought so to have applied them.

Curia, per Earle, ,L

The general rule, established by all the cases, is, that in order to render a-witness incompetent, his interest in the event of the suit, should be a present, certain, and vested interest, and not uncertain and contingent; it is defined by Ld. Ch. Baron Gilbert to be “a certain benefit or disadvantage to the witness, attending the consequence of the cause, one way.” Law of Ev., 225. The witness therefore, as an héír at law of the intestate, and a distributee of his estate, had a direct interest in increasing the fund, out of which he might receive a dividend, and on that ground was incompetent, 2 Bay, 542., But it was an interest, which might be assigned or released, and thus the competency of the witness would be restored. Ex’r of Christie v. Ex’r of Furman, Mss. D. Nov., 1827. This having been tendered, and the objection waived, it is supposed the witness was still incompetent, by reason of his liability to refund, in case of further claims against the estate, not yet exhibited. But as there was no evidence offered of any such outstanding demands, or of any deficiency of- assets in the hands of the administratrix, it. would seem, that the interest of the witness in increasing the fund, out of which he could receive no dividend, was not only extremely remote, but entirely contingent ; depending upon the fact of there being such outstanding *443demands, of their being established by proof, and of there being a deficiency of assets. All this could not be, except on the supposition, that.the settlement of the estate was false and fraudulent, which is not to be presumed. If authority were needed to sustain the proposition, it will be found in Smith v. Blackham, 1 Salk. 283. The heir of a bankrupt was brought to prove a debt due to him, in an action by the assignee ; and it was objected, that the surplus of the real estate (which was only to come in aid of the personal estate,) being to go to the bankrupt, and his heirs, the heir by swearing to increase the personal estate, has this benefit, as to so much. But Treby, Ch. J. allowed him to be a witness, saying, that was too remote a contingency. And in Carter v. Pearce, 1 Term R. 163, a surety in an administration bond, was admitted to prove a tender by the administrator. The court said, “ the bare possibility of an action being brought against a witness, is no objection to his competency. Ogier v. Deas, 1 Bail. 473, is also a case directly in point.

To enable the plaintiff to recover, it was necessary to prove payment of the draft, by the intestate. And as it had been endorsed by the payee, before presentment, the mere production of it from the custody of the drawee, even with a receipt endorsed, may have been insufficient to authorize a- presumption of payment, without proof that the receipt was the hand writing of a person, entitled to demand payment. ■ Such was the decision of Ld. Ellenborough in Pfiel v. Vanbatenburg, 2 Camp. N. P. Rep. 439, cited at the bar. But here there was surely other, and sufficient evidence of payment, in the admissions of the defendant himself. He not only admitted that the draft had been paid, but that he was liable for the amount; of course to the plaintiff, for the demand was made on her behalf. . It could not be otherwise, than that the payment was made to ope authorized to receive it.1

The other point that the drawee had funds of Lenoir, which he ought to have applied to the draft, was for the jury. There seems to have been no proof of the cotton of Lenoir, having been consigned by the defendant, although received by his boat; or that he *444had any authority, to direct the application of the proceeds, so as to supersede the control of the owner.

*jDesaussure*& *Garden,*for the motion.

*Watson,*contra.

The motion for a new trial is refused.

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