By the Court.
Benning, J.delivering the opinion.
[1.] We consider the import of Mr. Blandford’s statement to be, that he he was not Attorney at Law in this case, at the time 'when he made the demand. If he was not, the Act of 1850, rendering Attorneys at Law incompetent as witnesses in certain cases, did not apply to him. (Cobb’s Dig. 280.)
*259But it seems to us, that without Blandford’s testimony, there was enough evidence to prevent a non-suit. The witness, Walker, swears positively that he, as agent of the plaintiff, demanded payment from the defendant. The counter proposition made by the defendant — a proposition to do, not what was demanded of him, but quite another thing — could not nullify the legal effect of this demand. Walker was agent to demand payment and to receive payment — not agent with plenary powers to do with the debt, whatever his principal might have done with it.
Besides, it does not appear that Walker undertook, as agent or otherwise, to accept the proposition.
What was done by Walker certainly afforded the defen-> ■ dant an opportunity to pay the debt without suit; and that -is as much as the best demand can do.
So we think there ought to be a new trial.