This is an action of covenant, on a writing obligatory, executed by the intestate, Snow. It was assigned by the payee to John West, and by the latter to English, the plaintiff. Pleas — 1st, non-assignment by the payee to John West, and 2dly, payment by the maker to the payee. Issues on both pleas to the country, and verdict and judgment in favour of the plaintiff.
By a bill of exceptions, the correctness of the opinion of the Court below, rejecting as a witness, in support of the pleas, the defendant in the action, is presented.
Perhaps no branch of the law has been more benefited, by enlightened adjudications, than that of evidence. The distinction between competency and credibility, direct and contingent *139interest, is so clearly defined, that the present question settled by general principle, and particular decision, would not require special attention, were it not that the counsel for the plaintiff in error has placed it upon the construction of the statute organizing Probate Courts. It would seem proper, however, to advert to some of the rules of evidence, before we seek for the defendant’s exemption from their operation, in a construction of the statute.
In 1 Phill. on Ev. p. 56, it is laid down, that a party to the suit on record, cannot be a witness for himself or for a joint suitor against the adverse party, on account of the immediate and direct interest which he has in the Court, either from having a certain benefit or loss, or from being liable to costs. The cases of Haswell v. Bussing, 10 Johns. R. 128, and Sharpe v. Thatcher, 2 Dall. 77, are illustrations of the rule. In Stark. on Ev. 3d vol., 1061, it is said “ the rule which excludes a party from giving evidence in his own cause, is not founded merely on the consideration of his interest, but partly at least, on a principle of policy, for the prevention of perjury. The Circuit-Court of the United States, in Willings v. Consequa, 1 Peters’ C. R. 307, speaking of the exclusion of a party to a suit as a witness, says, the foundation of the rule is, the interest which the party has in the event of the suit, both as to costs and the subject-matter.
As a general rule, then, founded not only on the interest which the party has in the event of the suit, both as to costs and the subject-matter, but on a principle of policy for the prevention of perjury, — a party to a suit is not a competent witness. The counsel for the plaintiff in error, supposes his client to be, as an administrator, without this rule, not liable to costs, and therefore competent. If this were admitted, in relation to costs, the administrator is unquestionably interested in the subject-matter. The defeat of the action leaves in his hands, as assets, the amount that otherwise would be recovered from him. In the proper application of those assets, not only he himself, but his sureties are deeply interested. The successful support of the pleas in this case, prevents a diminution of the estate of which he is the representative. By the principle settled in the case of Hillhouse v. Smith, 5 Day’s R. 432, (exclusive of his being a party to the suit,) — that whenever a judgment will certainly affect the fund in which the witness is interested he is incompetent, — the *140administrator was properly rejected; and by Fox v. Whitney, 16 Mass. R. 118, although the estate is insolvent, yet an administrator defendant is not a competent witness. In the case of Heckert et al. adm'rs. v. Haine, 6 Binn. R. 16, one of the defendants was offered as a witness in support of the defence; exclusive of the question of costs, he was rejected. See also, Vansant v. Boileau et al. 1 Binn. R. 444.
H. Brown, for the plaintiff.
J. H. Scott, for the defendant.
Without dwelling upon other cases, that support the opinion of the Probate Court, it may only be necessary to remark that the case of Carter v. Pearce, adm'x. 1 T. R. 163, and others cited by the counsel for the plaintiff in error, do not appear to sustain his positions, or to conflict with this opinion. We are also satisfied, that it is supported by a proper construction of the statute referred to (1).
The judgment is affirmed with costs.