— We shall nof, at present, enter on the question, how far the witness, Durden, may be liable to the administrators of Alexander, if they should be compelled to pay the amount of the note executed under the supposed authority from the intestate, because that would require a construction of the late bankrupt law ; and for the reason that we consider him a competent witness for the plaintiff, even if the effect of his evidence is to revive a debt against himself, which we shall concede, for the purpose of this opinion, to be now barred.
It is a matter of singularity, that the question, whether a witness objecting to answer, could excuse himself on the ground, that, by answering, he would subject himself to a civil actiqjj or pecuniary loss, was never solemnly decided in Englj til the precise question was put to the judges, upoi; peachment of Lord Melville, in 1806. Four of the judges ther gave opinions, that a witness, under such circumstances, plight' excuse himself, and ought not to be compelled to answer; other eight judges held the contrary opinion. Lord EldoníaacP Lord Ellenborough among the latter, seem to consider theí tion even as somewhat offensive; for the former observes, in no measured strain, “that,'although his experience was equal, not only to any individual judge on the bench, but to all the judges, with their collective practice, yet he never knew a single objection to have been taken to an interrogatory proposed, because the reply to it would render the witness responsible to a civil suit.” Lord Ellenborough, too, insisted, that during the entire course of a life devoted to the practice of the law, and to the duties of the bench, he did not remember a single in*506stance where the objection had been taken. Mr. Justice Cham-bre, puts the.matter thus : The public must not call on a witness to give evidence, or do justice, between A and B, because such evidence might prevent the witness from acting unjustly by C or D, to whom the witness might wish to act unjustly, or from whom he should wish to withhold a just debt. [See opinions of the Judges, 1 Hall’s Am. Law Jour. 225.] Owing to the difference of opinion between the judges, a declaratory act of parliament was passed. In this country the rule has been settled in most of the States, in conformity with the opinions of the majority of the English judges. [See cases collected in Cowen & Hill’s Notes, 739.]
As a rule of the common law, it has never, we think, admitted of serious question, that a witness is bound to answer any pertinent and material interrogatory, although his answer may have the effect to render him liable to a civil suit. That there may be exceptions to this, as a general rule, is quite possible, but the case on the record, certainly is not entitled to be so considered.
It is not the testimony of the witness which gives the right of action, if such a right is conceded under the bankrupt law, but the payment made, as his surety, and this right of action would be precisely the same, if the witness was entirely silent, for the same matter might be shown by other evidence.
We are very clear there is no error in this particular, whatever there may have been in the finding upon the evidence. Judgment affirmed.