#### Bennet Smith v. James Roan ex’r. of John Burch,

From Caswell.

Where two persons sign a receipt for money, and jointly promise to refund it if not legally paid, in an action by one of them against the person to whom the receipt was given for money liad and received, the other is a competent witness for the Plaintiff, there being no proof of the identity of the money sued for, and that mentioned in the receipt.

Assumpsit for money had and received by Hie Defendant’s testator, to the use of the- Plaintiff.

On the trial, before his honor Judge Norwood, upon the general issue, the Plaintiff offered one Jesse Jl. Uol~ lerhide as a witness to make out bis case. The Defendant objected to the competency of the witness, alleging* that the witness was a partner of the Plaintiff — and also that he was interested in proving the debt the Plaintiff sought to recover, equal or greater than the sum mentioned in the following receipt, which was proved and read to establish the interest of the witness. After stating the receipt of sundry notes, it proceeded, “Received *253also eleven hundred and twenty-three dollars eighty-six cents, which is the balance due agreeable to a statement this day made, and which the undersigned receive, and agree to account for to the said executor, in any settle- ■ meat that may hereafter be made of the said estate, and refund the same, provided the estate is not legally responsible to us, or either of ns for the same, or any part thereof.”

Dec. 1829.

This receipt was signed by the Plaintiff and the witness Bollerhide. The objection was overruled by his Honor, and upon his testimony, a verdict was returned for the Plain- ' tiff, and the Defendant appealed.

Winston, for the Plaintiff.

The Attorney-General, contra.

Hall, Judge.

The objection, which the Defendant makes to the competency of the witness Bollerhide, is not founded on his examination in chief, nor on his voir dire, but rests for its support altogether on the receipt which liad been given by the witness and the Plaintiff to the .Defendant, in which receipt they promise to return certain money then paid to them, in case it should appear that the testator’s estate did not legally owe it.— Afterwards this suit was brought for money had and received by Defendant’s testator to the Plaintiff’s use $ and on the threshold of the trialj objection is made, on the ground of interest, to the competency of Bollerhide.

So far as appeared to the Court at that stage of the trial, (and we are placed in the same situation,) the money sued for had no connexion with the money for which the receipt was given. Whether the Plaintiff recovers in this action or not, that fact neither increases nor diminishes the responsibility of those who gave the receipt.

If the present Defendant had sued Smith, the present Plaintiff, to recover the money recited in the receipt, as ‘‘not being legally due by his testator,” and Bollerhide *254jia(] been offered by Smith as a witness, his incomp&r tency would have been apparent. But it cannot be ta,- " 1 ken for granted without proof, that Dollerhide is a partner Smith in this transaction, because it appears from a receipt, that he was in a former. When that shall be made to appear, his incompetency will be established.

Per Curiam. — Let the judgment below be affirmed.