Houston v. Prewitt , 8 Ala. 846 ( 1846 )

ORMOND, J.

If the plaintiff, and his intestate, are to be considered as scheduled creditors of the witness, then it appears to us, the principle of the case of Cromwell & Johnson v. Comegys, 7 Ala. Rep. 498 would apply to this case, because the payment of that debt, which would be the consequence of a successful prosecution of this suit, would relieve his estate from paying it, and thus increase the surplus by that amount, for which purpose he would not, on the authority of the case cited, be competent.

Further, on grounds of public policy, we think he is incompetent to testify. The consideration upon which these bills were made, passed from him to the drawers, and it also appears the bills were delivered to him; he cannot therefore be permitted, by his own testimony, to maintain an action brought upon them, in the name of another. To tolerate this, would be to introduce the evils of champerty and maintenance. In the case of Bell v. Smith, 5 Barn. & Cress. 188, which is very similar to this, in its facts, and entirely analagous in principle, the Court held, that the witness, though not the nominal, was the real plaintiff in the action ; and Bayley, Justice, added, “But I think, that Armet (the witness) was incompetent upon higher grounds. The action was brought at the instance of Armet, and three others ; it was then found they had not sufficient evidence to support it, and machinery was resorted to, calculated to introduce all the evils of cham-perty, and maintenance. First, Armet, without consideration released all his interest to the nominal plaintiffs in the suit; that was not considered sufficient, and then, in consideration of ten shillings, all the parties joined in a conveyance to Lackland and Robertson. It is difficult to put a stronger case of maintenance or champerty.”

In the case at bar, the bills of exchange must be considered as transferred toihe plaintiffs, by the witness, the consideration upon which the bills were drawn having passed from him, to the drawers, and the bills having been delivered to him. It is then, the naked case of the transferror of a chose in action, introduced as a witness to establish the debt. It is perfectly clear, this cannot be tolerated, nor, as shown by the case cited, would a release from the transferee restore his competency. In any view we have been able to take of this case, the decision of the Court below was correct, and its judgment is therefore affirmed.