Lumpkin, C. J.
It appears that William P. Dorn filed his petition against Porter Fleming and Robert A. Fleming, as merchants and copartners, by the name and style of P. and'R. A. Fleming, in which the plaintiff alleged that some time in the year 1862, he stored a lot of cotton with the defendants'as factors and commission merchants, and in their warehouse in the city of Augusta. On the appeal trial, he introduced the depositions of one James M. C. Freeland, who stated that he was present at an interview between his employer (the plaintiff) and the said Porter; who proved that instructions were given by plaintiff to defendant Porter Fleming, on the day the cotton was weighed, to have it insured for three months, at eighty dollars per bale, and, in the mean time, to sell the cotton if he could not have the insurance renewed. Testimony was also offered by the plaintiff, for the purpose of showing that the cotton was first stored by the defendants n their warehouse on Campbell street, in said city, and that it was subsequently burnt and destroyed, to-wit: on the 4th of November, in the year, aforesaid, in a shed or warehouse on Reynolds street, in said city, (which shed was used for storing cotton by the defendants,) to which it had been removed by defendants, and that no insurance had been effected by them on the same. Proof was also introduced by the plaintiff, as to the quality and value of the cotton, for the purpose of enabling the jury to estimate the damage which, had been done to him, as he insisted, by the failure of the defendants to insure the cotton, or by their removal of the same from the warehouse on Campbell street, to the shed or •warehouse on Reynolds street, in said city, and its destruction by fire. The witness, Freeland, testified that there were seventy-five bales of cotton, weighing about four hundred and four pounds per bag.
To meet this case, the defendants introduced some evidence as to the value of said cotton; also, the testimony of Charles F. McOay, an insurance agent and expert, as to the com» [215]*215parative safety of the cotton in the house to which it had been removed; and then Porter Pleming, one of the defendants, was called to the stand for the purpose of correcting, as was alleged, the statement made by the witness, Freeland, as to the conversation between himself and the plaintiff; and, at the same time, was tendered to the counsel for the plaintiff, to be presented to the Court, a bond executed by the said Eobert A, in favor of the said Porter, which recited that in consideration of the fact that the said Porter was not a member of the said firm of P. and E. A. Pleming, 'in truth and in fact, at the time of the loss of said cotton, though his name had been retained, and the business had continued in that name — the said firm having really, as between the partners themselves, been previously dissolved — as well as for and in consideration of the sum of one thousand dollars then paid, the said Eobert A. Pleming bound himself, his heirs, executors, and administrators, unto the said Porter, in the just and full sum of whatsoever judgment might be recovered in the aforesaid suit at the instance of the said Dorn, against the said firm of P. and E. A. Fleming, or against the said Porter, together with all interest. or damages, and all costs of suit, to be immediately paid upon the rendition of final judgment therein; and, at the same moment, was tendered to the counsel, to be presented to the Court, a release executed by the said Eobert A, in favor of the said Porter, which, in consideration of similar premises to those stated in said bond, acquitted and discharged the said Porter from all liability to him, the said Eobert A, for and on account of the transaction for which the suit was brought, or of airy judgment that might be rendered therein; and with said bond and release was, at the same time, tendered a certificate of deposit, signed by the Clerk of said Court wherein the suit was pending, acknowledging to have received from the said Eobert A, fifteen thousand dollars in interest-bearing Confederate Treasury notes, which had been deposited with the said Clerk for the payment of any sum which might be recovered by the said plaintiff, in' the said case. [216]*216It was, also, at the same time, proposed by the counsel offering the said Porter Fleming as a witness, that he should be sworn upon his voire dire, if it was desired, before he was sworn in chief. To the testimony of the said Porter, and his admissibility as a witness, objection was made, on the ground of interest, because he was a party to the record — a partner, by the record, of the said Robert A; and because there had been no ¡Fea filed by the defendants setting forth the fact, if it were true, that the said Porter had disposed of his interest in said co-partnership and was only a nominal party to the record — the counsel for the plaintiff admitting, for the purposes of that argument and issue, that the deposit was sufficient to satisfy any recovery that might be had by the plaintiff, and waiving all objection that the deposit was not in gold and silver coin. The counsel for the defendant offered, if the Court thought that a plea setting forth the fact that the said Porter was only a nominal party to the record, was needed, and that its absence constituted any difficulty in the way of admitting his testimony, to amend and introduce such plea, as it was their clear right to do at any stage of the cause. But the Court, for other reasons, rej ected the testimony of the said Porter Fleming, and refused to permit him to be examined and sworn in said case; to which ruling and decision of the Court, the defendants counsel excepted.
Was Porter Fleming a competent witness in this case?
It is admitted that originally he was not, for he had been a partner of his co-defendant, and had never so withdrawn from the firm of P. & R. A. Fleming as to relieve him from responsibility to third persons.
Was the witness, then, relieved from his interest by the acts done by Robert A. Fleming ?
In the first place a bond was executed by Robert A. to Porter Fleming, reciting that the said Porter in truth and in fact was not a member of the firm of P. & R. A. Fleming at the time of the loss of said cotton — the said firm having been previously dissolved; and on that account, and for other considerations, obligating himself, his heirs, etc., to [217]*217indemnify the said Porter against any judgment that might be recovered in favor of Dorn, the plaintiff, against the said Porter, or the firm of P. & R. A. Fleming; and also, binding himself to pay immediately the judgment of tliu plaintiff in the suit, principal, interest and cost, should any be rendered in his favor.
In the second place, a release from Robert A. to Porter Fleming was tendered, acquitting and discharging the said Porter from all liability to the said Robert A. on account of the transactions for which the suit of the said Dorn was instituted.
And, thirdly, the certificate of the Clerk of the Court was offered, in which he acknowledged to have received from Robert A. Fleming a certain amount of money on deposit, for the payment of any recovery which the plaintiff might obtain in the case, as well as the costs of suit — which sum, the plaintiff, for the sake of the argument, admitted to be sufficient for that purpose, waiving all objection that the deposit was not in gold and silver coin.
We again ask, were not these acts sufficient to relieve the witness from the bias which interest is supposed to impart to his evidence, and to restore him to competency ?
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Lumpkin, C. J.
It appears that William P. Dorn filed his petition against Porter Fleming and Robert A. Fleming, as merchants and copartners, by the name and style of P. and'R. A. Fleming, in which the plaintiff alleged that some time in the year 1862, he stored a lot of cotton with the defendants'as factors and commission merchants, and in their warehouse in the city of Augusta. On the appeal trial, he introduced the depositions of one James M. C. Freeland, who stated that he was present at an interview between his employer (the plaintiff) and the said Porter; who proved that instructions were given by plaintiff to defendant Porter Fleming, on the day the cotton was weighed, to have it insured for three months, at eighty dollars per bale, and, in the mean time, to sell the cotton if he could not have the insurance renewed. Testimony was also offered by the plaintiff, for the purpose of showing that the cotton was first stored by the defendants n their warehouse on Campbell street, in said city, and that it was subsequently burnt and destroyed, to-wit: on the 4th of November, in the year, aforesaid, in a shed or warehouse on Reynolds street, in said city, (which shed was used for storing cotton by the defendants,) to which it had been removed by defendants, and that no insurance had been effected by them on the same. Proof was also introduced by the plaintiff, as to the quality and value of the cotton, for the purpose of enabling the jury to estimate the damage which, had been done to him, as he insisted, by the failure of the defendants to insure the cotton, or by their removal of the same from the warehouse on Campbell street, to the shed or •warehouse on Reynolds street, in said city, and its destruction by fire. The witness, Freeland, testified that there were seventy-five bales of cotton, weighing about four hundred and four pounds per bag.
To meet this case, the defendants introduced some evidence as to the value of said cotton; also, the testimony of Charles F. McOay, an insurance agent and expert, as to the com» [215]*215parative safety of the cotton in the house to which it had been removed; and then Porter Pleming, one of the defendants, was called to the stand for the purpose of correcting, as was alleged, the statement made by the witness, Freeland, as to the conversation between himself and the plaintiff; and, at the same time, was tendered to the counsel for the plaintiff, to be presented to the Court, a bond executed by the said Eobert A, in favor of the said Porter, which recited that in consideration of the fact that the said Porter was not a member of the said firm of P. and E. A. Pleming, 'in truth and in fact, at the time of the loss of said cotton, though his name had been retained, and the business had continued in that name — the said firm having really, as between the partners themselves, been previously dissolved — as well as for and in consideration of the sum of one thousand dollars then paid, the said Eobert A. Pleming bound himself, his heirs, executors, and administrators, unto the said Porter, in the just and full sum of whatsoever judgment might be recovered in the aforesaid suit at the instance of the said Dorn, against the said firm of P. and E. A. Fleming, or against the said Porter, together with all interest. or damages, and all costs of suit, to be immediately paid upon the rendition of final judgment therein; and, at the same moment, was tendered to the counsel, to be presented to the Court, a release executed by the said Eobert A, in favor of the said Porter, which, in consideration of similar premises to those stated in said bond, acquitted and discharged the said Porter from all liability to him, the said Eobert A, for and on account of the transaction for which the suit was brought, or of airy judgment that might be rendered therein; and with said bond and release was, at the same time, tendered a certificate of deposit, signed by the Clerk of said Court wherein the suit was pending, acknowledging to have received from the said Eobert A, fifteen thousand dollars in interest-bearing Confederate Treasury notes, which had been deposited with the said Clerk for the payment of any sum which might be recovered by the said plaintiff, in' the said case. [216]*216It was, also, at the same time, proposed by the counsel offering the said Porter Fleming as a witness, that he should be sworn upon his voire dire, if it was desired, before he was sworn in chief. To the testimony of the said Porter, and his admissibility as a witness, objection was made, on the ground of interest, because he was a party to the record — a partner, by the record, of the said Robert A; and because there had been no ¡Fea filed by the defendants setting forth the fact, if it were true, that the said Porter had disposed of his interest in said co-partnership and was only a nominal party to the record — the counsel for the plaintiff admitting, for the purposes of that argument and issue, that the deposit was sufficient to satisfy any recovery that might be had by the plaintiff, and waiving all objection that the deposit was not in gold and silver coin. The counsel for the defendant offered, if the Court thought that a plea setting forth the fact that the said Porter was only a nominal party to the record, was needed, and that its absence constituted any difficulty in the way of admitting his testimony, to amend and introduce such plea, as it was their clear right to do at any stage of the cause. But the Court, for other reasons, rej ected the testimony of the said Porter Fleming, and refused to permit him to be examined and sworn in said case; to which ruling and decision of the Court, the defendants counsel excepted.
Was Porter Fleming a competent witness in this case?
It is admitted that originally he was not, for he had been a partner of his co-defendant, and had never so withdrawn from the firm of P. & R. A. Fleming as to relieve him from responsibility to third persons.
Was the witness, then, relieved from his interest by the acts done by Robert A. Fleming ?
In the first place a bond was executed by Robert A. to Porter Fleming, reciting that the said Porter in truth and in fact was not a member of the firm of P. & R. A. Fleming at the time of the loss of said cotton — the said firm having been previously dissolved; and on that account, and for other considerations, obligating himself, his heirs, etc., to [217]*217indemnify the said Porter against any judgment that might be recovered in favor of Dorn, the plaintiff, against the said Porter, or the firm of P. & R. A. Fleming; and also, binding himself to pay immediately the judgment of tliu plaintiff in the suit, principal, interest and cost, should any be rendered in his favor.
In the second place, a release from Robert A. to Porter Fleming was tendered, acquitting and discharging the said Porter from all liability to the said Robert A. on account of the transactions for which the suit of the said Dorn was instituted.
And, thirdly, the certificate of the Clerk of the Court was offered, in which he acknowledged to have received from Robert A. Fleming a certain amount of money on deposit, for the payment of any recovery which the plaintiff might obtain in the case, as well as the costs of suit — which sum, the plaintiff, for the sake of the argument, admitted to be sufficient for that purpose, waiving all objection that the deposit was not in gold and silver coin.
We again ask, were not these acts sufficient to relieve the witness from the bias which interest is supposed to impart to his evidence, and to restore him to competency ?
Waiving the authority of all past adjudications upon this subject, section 3785 of the Code of Georgia enacts that a deposit of money to cover all costs, or o/ivy other act which, in the judgment of the Court, relieves the witness from interest or other ground of incompetency, will restore his competency.
Seeing, thgn, the strong tendency of the Legislature, as it has been of the Courts, to widen the door for the admissibility of testimony, and to make objections go rather to the credibility than the competency of the witness, shall we, when called on for the first time to expound this section, begin by frittering away one of the broadest provisions of the Code — a book which contains, in my humble opinion, more law and better law, than will be found in any volume of its size extant ?
[218]*218The liability of Porter Fleming, though a legal liability, was not in reality his; the documents appended to the bill of exceptions show that whatever it might be, the most ample indemnity was provided against it. The plaintiff was abundantly secured in his recovery by Robert A. Fleming depositing with the Clerk ample funds for this purpose. What legal obligation was there left uncovered to disqualify Porter Fleming as a witness? As the party who Freeland testified the plaintiff transacted the business with, Porter Fleming might feel an honorary obligation to rebut, by his own, Freeland’s evidence; but this will not suffice to exclude him. Code, section 3779.
But it is argued that the deposit of the money with the Clerk was not by rule of Court; that no order was made to impound the money; that it could be withdrawn by the depositor at any moment — even after verdict — and that if not withdrawn, the plaintiff could not reclaim it after recovery, without the consent ofthe defendant, or an order of Court, and, until such consent or order, the verdict or judgment would have bound the witness offered, and that his interest, therefore, remained.
Does counsel for plaintiff suppose, that, after the deposit of the money with the Clerk, and by that act the Court was influenced to admit the testimony of the witness, that the party offering him could afterwards, and in the very face of the Court, withdraw it? Surely not. The party or his counsel proposing it, would be guilty of a contempt. Code, section 200, paragraph 4.
When money is deposited by a party with the Clerk, the law impounds it, and will hold it subject to the purposes for which it was deposited. Whether it would have to be drawn by order of Court, may or may not be so; but what of that? Money received by the Clerk, or collected by the Sheriff, has frequently to be drawn by rule, even when there are no contestants for the fund. This proves nothing..
Let the judgment be reversed, and a new trial ordered.
Jenktets, J. concurred.