June, 1830.

#### The President & Directors of the State Bank v. John W. Littlejohn,

From Chowan.

The surety of a delinquent cashier is not a competent witness in an action brought to recover money improperly paid by his principal, and for which the latter is chargeable.

Assumpsit, for the balance of an account due the Plaintiffs for an alleged ovcroherking, by the Defendant, of his account at the Eden ton office of the Plaintiffs.

To prove their case, the Plaintiffs called their cashier, who, upon his voir dire, stated that he was the surety of Pullen, the former cashier of the Edenton office— that the balance sought to be recovered in this action had accrued while Pullen was cashier — that Pullen's bond was then in suit, and if a recovery was effected of the Defendant, the amount thus recovered would diminish the sum demanded by the Plaintiffs of the sureties of Pullen.

His Honor Judge Mangum overruled an objection to the competency of the witness, and permitted him to be examined in chief. He. testified that lie had drawn off the account and handed it to the Defendant, who promised to pay it.— A verdict was returned for tiie Plaintiffs, and the Defendant appealed.

Hogg. for the Defendants.

Badger, contra.

Hall, Judge.

This case may be simplified by considering Pullen himself the witness objected to.. It appears to me, that when the cause of action in this case is considered, Pullen's interest is obvious. The case states, that the suit is brought upon a promise by Littlejohn, to pay the amount of overcherkings by him, made upon the bank, whilst Pullen was cashier thereof; that h, that Littlejohn received money of the bank, from the hands of *382 pollen, for which Littlejohn had no right to chock, anil punen |ia(j no anfhoriiy to pay. Therefore as he ought not to have made such payments without authority, he is ¡¡a[)¡P (0 p[ie hank for them. But if this recovery can be made of Littlejohn, the bank will have no demand against Pullen. It follows that Pullen is interested in the event of this action.

This is not like the case, where an agent is permitted to be a witness from the necessity of the case, where from the nature of the transaction, it is not likely that witnesses, altogether disinterested, can have a knowledge of it. In such cases the agent may be á witness, as to things transacted within the scope of his authority. But ■when he acts beyond the limits of his authority, and thereby becomes liable himself, lie cannot be a witness ■without a release. (2 Stark. 753, 767, 768.) And in that situation Pullen appears to be, because be paid over the money to Littlejohn, without authority from the bank. It is further to be considered, that when agents arc permitted to become witnesses from necessity, as to transactions of which it is presumed they only have, a knowledge, the rule is not extended further. They cannot be examined as to facts of which one person as well as another may have a knowledge, and which, from the nature of their employment, are not presumed to be confined to their knowledge. Thus in the present case, Littlejohn is charged with a debt due to the bank. Knowledge of the fact that he at a future day promised to pay it, is not necessarily confined to the cashier of the bank. The assumpsit should be proied by disinterested testimony, as in ordinary cases.

Every objection which could be made to Pullen, may be made to the witness ; because lie wras Pullen’s surety as cashier, when, it is alleged, Littlejohn received the money sued for in this action.

Per Curiam. — Let the judgment of the Court below be reversed.