The only question submitted for our decision, is, whether the judge on the circuit did right in admitting the witness. That he had adirect and certain interest in the event of the suit, and that his testimony went to sustain that interest, is too clear to admit of controversy. The effect of his evidence was, to provide a fund for the payment of his own debt. Indeed, this point was not much contested in the argument. But it was insisted, that if the defence was made out, the witness would be liable to the plaintiffs, and so his interest was exactly balanced.
There is not enough, as it seems to us, appearing on this record, to show such an equipoise ofinterest. In the first place, it may, perhaps, be doubted, whether Dorrance & Graves are shown to be under any liability to the plaintiffs. It is stated, and the evidence of Graves went to prove, that the leather was bought and paid for. But it also appears, that it was paid for in a note, which turned out to be unproductive, *57and the makers of which are insolvent. Whether any measures were taken, by the plaintiffs, in regard to the note; whether they so conducted with it, as either to hold or to discharge the indorser, does not appear. Perhaps upon the state of the case, as it is presented, we are not authorized to', say, that the note was received in satisfaction ; and perhaps it may, with propriety, be claimed, that although the note was received in payment, yet as it has proved to be of no value, it is no payment, and the parties may resort to their original cause of action. Admitting this to be so, and that there might exist a liability on the part of Dorrance & Graves to the plaintiffs, still the question recurs, whether that exact balancing of interest is shown, which would render the witness indifferent between the parties.
Suppose an action were brought, by the plaintiffs, against Dorrance & Graves, would the sum which the avowant may here recover, furnish any rule of damages in that action ? Most manifestly it would not. The plaintiffs might recover more, or they might recover less.
Here, then, there was, on the one hand, a fixed and certain interest in the witness. The virtual effect of a verdict, which his testimony went to procure, would be, to pay his own debt On the other hand, his interest was contingent, and uncertain in amount. The cases cited, therefore, do not apply. In Bell v. Harwood, 3 Term Rep. 308. the question was, whether the witness, (whose title was admitted) demised to A, or to another person ; and his testimony was received, on the ground that it was indifferent to the witness, which was his tenant. In Ilderton v. Atkinson, 7 Term Rep. 480. the witness had 200i. in his hands, which he was confessedly bound to pay over to one of the parties ; and it was perfectly indifferent to him to which he paid it. In Birt & al. v. Kershaw, 2 East, 458. the witness was either liable to the plaintiffs, as indorser of the bill, or to the defendant for the money received by him, in order to discharge it. He, therefore, stood indifferent between the parties. ¡
The rule upon this subject is thus laid down, by this court, in the case of Owen v. Mann, 2 Day, 403. “ It cannot be denied, that if the interest of a person, in favour of one party, is counteracted by an equal interest in behalf of the other, he js a competent witness. But if there be the least inequality of *58interest, that is, if a recovery on one side is more interesting to _the person, in a pecuniary view, than on the other, he cannot be admitted to testify. The law demands that witnesses should be wholly indifferent.” It is on this principle that bail are excluded. They may be subjected to the immediate payment of the judgment recovered ; and this interest is not counterbalanced, by allowing them to resort to the principal for indemnity.
We think the precise point before us was ruled, by the court of Common Pleas, in Bland v. Ansley & al. 2 New Rep. 331. That was an action of trespass against the sheriff, for taking the plaintiff’s goods. The goods were taken in execution against Aubray; and the question was, whether they belonged to Aubray or the plaintiff. Aubray had sold to the plaintiff the house in which the goods were ; but whether the goods were sold at the same time, was matter of dispute. The defendant offered Aubray to prove, that the goods were not assigned to the plaintiff, and, of course, remained his property. Ch. J. Mansfield refused to receive the testimony; and a verdict was found for the plaintiff. On a motion for a new trial, it was contended, as it has been here, that the interest of the witness was balanced; but the motion was denied ; and Sir James Mansfield says : “ The object of calling Aubray was, to prove that the goods were his own properly, and not that of the plaintiff; and consequently, that the execution, which had been levied upon the goods to satisfy a debt owing by him, was valid. He was called, therefore, to give evidence, the effect of which would be, to pay his own debt with the plaintiff’s goods.” See also Jackson d. Caldwell v. Hallenback, 2 Johns. Rep. 394.
We are of opinion, that the testimony of Graves should not have been received ; and we, therefore, make the rale absolute.
In this opinion the other Judges concurred, except Church, J., who was absent.New trial to be granted.