That an indorser who has no interest in the note, nor liable in any manner upon it, is a competent witness in favor of the indorsee, against the maker, is too well established to be controverted. Todd v. Hardy, 9 Por. 346; Abbott v. Mitchell, 6 Sheppard, 355; 1 Demo. 180; Lock v. Nays, 9 N. Hamp. 430; Farmers’ Bank v. Griffiith, 5 Hill, 476; 5 Wend. 181.
The indorsement of Goldthwaite being without recourse, does not show him to be interested in the note, nor liable in any manner upon it. Nor does his testimony change his condition in reference to the note. But it is contended, that he must be considered as the transferror of a chose in action, and as such disqualified to testify, on the ground of public policy, independent of the question of interest, and we are referred to the case of Houston v. Pruitt, 8 Ala. 846, in support of this position.
The facts of that case, when examined, will be found very different from the case under consideration. In that case, the consideration of the bills moved from O’Neil, the witness.. They were not payable to any one, and were handed over by the witness to Houston, to indemnify him for money he had been compelled to pay, as the security of the witness. The witness had been afterwards declared a bankrupt, and received his certificate of discharge. This court held, that he was incompetent, first, because his testimony tended to *596increase the fund in the hands of his assignee in bankruptcy; and further, that he was incompetent as the transferror of a chose in action, on the ground of public policy. But if the witness in the case at bar is to be excluded on this ground, we must carry the doctrine still further, and hold, that an in-dorser of a promissory note, who never had any beneficial interest in the note, and who is in no wise interested in it, is incompetent, although by the indorsement, the legal title was united with thq equitable, in the defendant in error; for the note was given for the rent of land belonging to the defendant. Although Goldthwaite, as his agent, took the note payable to himself, yet it is shown by his testimony, that the money actually belonged to Mclvor, and not to the witness. What good will result to the public by excluding the testimony of witnesses thus situated; or what injury to public morals, by permitting them to testify, we are unable to perceive. The witness in this case, never had any beneficial interest in the note, nor is he in any manner liable upon it. He is therefore a competent witness, and the court did not err in permitting his testimony to go to the jury.
As it is the province of the court to determine on the competency of proof, and not that of the jury, the court did not err in refusing the charge requested, which was, that if the jury should find certain facts to be true, then the witness was incompetent, and his testimony should be disregarded. When testimony is permitted to go the jury, it is their duty to consider, and to weigh it; but its competency as proof is already established by the court, and a charge which would subject the legality of the evidence to the judgment, or consideration of the jury, should not be given. It is the duty and province of a jury, to weigh the evidence in coming to their conclusions of fact; but the consideration of the legality of the evidence, as proof, belongs exclusively to the court.
There is no error in the record, and the judgment is affirmed.
Chilton, not sitting,