RICE, C. J.
— We shall not notice the complaint originally filed, because, without any decision as to its sufficiency, an amended complaint was filed, upon which the action of the court below here complained of was had.
The demurrer to the first and third counts of the amended complaint was overruled. By section 2253 of the Code, no objection can be taken or allowed, which is not distinctly stated in the demurrer. The only objections specified in the demurrer are, 1st, that the cause of action set out in these counts is obnoxious to the statute of frauds; and, 2d, that “ said promise is not averred to have been in writing, or upon any consideration.”
It is settled, that, although it may be necessary to prove an agreement which is declared on to have been in writing, it is not necessary to allege in the complaint that it was in writing. If the agreement be one which the statute of frauds requires to be in writing, the court will not assume it to be verbal, merely because the complaint does not expressly state it to be in writing. — Blick v. Briggs, 6 Ala. R. 687.
2. From the counts demurred to it appears, that certain land of the original plaintiff in this action (Samuel Tip-ton) was sold in 1839 at sheriff’s sale; that the defendants’ intestate (William Robinson) was the purchaser at that sale; and that the amount of his bid was greater than the execution claims. The surplus which remained after the payment of the execution claims was clearly the property of the said Samuel Tipton, whether it was in the hands of the sheriff, or in the hands of the purchaser. Baylor v. Scott, 2 Porter’s Rep. 315. The said Samuel had the right to relieve the purchaser from the payment of this surplus to the sheriff. Unless he did relieve him, the purchaser was legally liable for the payment of the whole amount of his bid, including this surplus, without any delay. If he did relieve him from the immediate payment of this surplus, and agreed to take his chance for compensation in another way, and upon the occurrence of a subsequent event, (to-wit, the re-sale of the land,) as alleged and set forth in the counts demurred to; and, in consideration thereof, the defendants’ intestate (the [608]*608purchaser) made the promise as alleged in those counts, it is beyond all doubt, that the consideration for the promise is sufficient. — The suspension or forbearance of a man’s legal or equitable rights forms a foundation for an undertaking. — Addison on' Con. (edition of 1857,) 20, 21, and notes.
These views bring us to the conclusion, that the objections specified in the demurrer to the first and third counts are not fatal to those counts; and that, therefore, there was no error in overruling the demurrer.
3. The original plaintiff having died, intestate, after the commencement of this suit, and the suit having been revived in favor of his administrator, the question was raised on the trial, whether Shadrach Tipton, a son of said Samuel, and a distributee of his estate, was a competent witness for the administrator. It is contended, that he is incompetent, not only because he is a distributee, but also because he is otherwise interested in the event of this suit, and because he belongs to the class of witnesses excluded by section 2290 of the Code, which provides, that when a suit is brought by the transferree of any contract, express or implied, “the transferror, or party with whom the contract was originally made, is not a competent witness for the plaintiff, to prove the cause of action,” &c.
To a correct decision of this question of competency, a correct understanding of the complaint is essential. The second count is framed to recover the surplus of the amount at which the defendants’ intestate became the purchaser of the land of the said Samuel Tipton at the sheriff’s sale; the first and third counts are framed to recover the-surplus' of the proceeds of the re-sale of the land by the defendants’ intestate, which remained after reimbursing him what he had paid for it; and the only other count (the fourth) is for money had and received by the defendants’ intestate, to and for the use of the said Samuel. It does not appear from the complaint, nor from the evidence in the record, that the present suit was brought by the said Samuel Tipton as “ the transferree of any contract, express or implied,” “originally made” with the said Shadrach Tipton; nor that any such contract, or [609]*609the transfer of any such contract, by tbe said Shadraeh. to the said Samuel, was alleged, proved, or urged as a ground of recovery, or “ cause of action,” in favor of the plaintiff. "We hold, therefore, that section 2290 of the Code has no application to the question of the competency of said Shadraeh, and cannot authorize his exclusion.
4. He is not presented by this record in the attitude of the transferror of a chose in action, offered by the transferree to establish by his own testimony the title, cause of action, or demand which he had transferred. If he had been presented in such attitude, his incompetency would be manifest, and could not be removed by a release, under the rule recognized in Houston v. Pruitt, 8 Ala. R. 846 ; Powell v. Powell, 10 ib. 900; Locke v. Noland, 11 ib. 249. But the reason upon which that rule rests is, that to permit the transferror of a chose in action to establish the debt by his own testimony, in a suit for its recovery by the transforree, “would be to introduce the evils of cham-perty and maintenance.” — Houston v. Pruitt, supra; Bell v. Smith, 5 Bar. & Cress. 188. That reason does not exist in the case now under consideration; and the rule, therefore, does not apply. Here, the suit was brought by the intestate in his lifetime; the title, or cause of action, is not created by, nor derived from, the distributee who is offered as a witness; but exists independently of any transfer which he, as a mere distributee, may make, and accrued to the intestate in his lifetime, by virtue of a contract made -with the defendants’ intestate, and passed by operation of law to the present plaintiff, who is prosecuting the suit in his capacity of administrator. The dis-tributee has executed two releases since the death of the original plaintiff, and by them has effectually parted with and removed all interest which he ever had or ever can have as a distributee. After the execution of these releases, he is offered as a witness for the administrator of his father; but is not offered to prove any title, cause of action, or demand, derived from him by transfer or otherwise. To admit him to testify under such circumstances, and in such a case, will not be to introduce any of the [610]*610evils of champerty or maintenance; and although the degree of credit to which he is entitled may be a debatable question, we are satisfied that the releases executed by him removed all objection to his competency, founded on the fact that he was a distributee. — Scales v. Desha, 16 Ala. R. 308; Herndon v. Givens, 19 Ala. R. 313.
5. We now direct our attention to the objection founded on the declaration of said Samuel Tipton to Jordan, made after this suit was commenced, “ that whatever was coming ■ out of the suit belonged to his son Shadrach S. Tipton, who was in Mississippi, and that he could make no arrangement without seeing him.” It is a settled rule, that the competency of a witness is always presumed, until the contrary is proved. — Densler v. Edwards, 5 Ala. R. 31.
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RICE, C. J.
— We shall not notice the complaint originally filed, because, without any decision as to its sufficiency, an amended complaint was filed, upon which the action of the court below here complained of was had.
The demurrer to the first and third counts of the amended complaint was overruled. By section 2253 of the Code, no objection can be taken or allowed, which is not distinctly stated in the demurrer. The only objections specified in the demurrer are, 1st, that the cause of action set out in these counts is obnoxious to the statute of frauds; and, 2d, that “ said promise is not averred to have been in writing, or upon any consideration.”
It is settled, that, although it may be necessary to prove an agreement which is declared on to have been in writing, it is not necessary to allege in the complaint that it was in writing. If the agreement be one which the statute of frauds requires to be in writing, the court will not assume it to be verbal, merely because the complaint does not expressly state it to be in writing. — Blick v. Briggs, 6 Ala. R. 687.
2. From the counts demurred to it appears, that certain land of the original plaintiff in this action (Samuel Tip-ton) was sold in 1839 at sheriff’s sale; that the defendants’ intestate (William Robinson) was the purchaser at that sale; and that the amount of his bid was greater than the execution claims. The surplus which remained after the payment of the execution claims was clearly the property of the said Samuel Tipton, whether it was in the hands of the sheriff, or in the hands of the purchaser. Baylor v. Scott, 2 Porter’s Rep. 315. The said Samuel had the right to relieve the purchaser from the payment of this surplus to the sheriff. Unless he did relieve him, the purchaser was legally liable for the payment of the whole amount of his bid, including this surplus, without any delay. If he did relieve him from the immediate payment of this surplus, and agreed to take his chance for compensation in another way, and upon the occurrence of a subsequent event, (to-wit, the re-sale of the land,) as alleged and set forth in the counts demurred to; and, in consideration thereof, the defendants’ intestate (the [608]*608purchaser) made the promise as alleged in those counts, it is beyond all doubt, that the consideration for the promise is sufficient. — The suspension or forbearance of a man’s legal or equitable rights forms a foundation for an undertaking. — Addison on' Con. (edition of 1857,) 20, 21, and notes.
These views bring us to the conclusion, that the objections specified in the demurrer to the first and third counts are not fatal to those counts; and that, therefore, there was no error in overruling the demurrer.
3. The original plaintiff having died, intestate, after the commencement of this suit, and the suit having been revived in favor of his administrator, the question was raised on the trial, whether Shadrach Tipton, a son of said Samuel, and a distributee of his estate, was a competent witness for the administrator. It is contended, that he is incompetent, not only because he is a distributee, but also because he is otherwise interested in the event of this suit, and because he belongs to the class of witnesses excluded by section 2290 of the Code, which provides, that when a suit is brought by the transferree of any contract, express or implied, “the transferror, or party with whom the contract was originally made, is not a competent witness for the plaintiff, to prove the cause of action,” &c.
To a correct decision of this question of competency, a correct understanding of the complaint is essential. The second count is framed to recover the surplus of the amount at which the defendants’ intestate became the purchaser of the land of the said Samuel Tipton at the sheriff’s sale; the first and third counts are framed to recover the-surplus' of the proceeds of the re-sale of the land by the defendants’ intestate, which remained after reimbursing him what he had paid for it; and the only other count (the fourth) is for money had and received by the defendants’ intestate, to and for the use of the said Samuel. It does not appear from the complaint, nor from the evidence in the record, that the present suit was brought by the said Samuel Tipton as “ the transferree of any contract, express or implied,” “originally made” with the said Shadrach Tipton; nor that any such contract, or [609]*609the transfer of any such contract, by tbe said Shadraeh. to the said Samuel, was alleged, proved, or urged as a ground of recovery, or “ cause of action,” in favor of the plaintiff. "We hold, therefore, that section 2290 of the Code has no application to the question of the competency of said Shadraeh, and cannot authorize his exclusion.
4. He is not presented by this record in the attitude of the transferror of a chose in action, offered by the transferree to establish by his own testimony the title, cause of action, or demand which he had transferred. If he had been presented in such attitude, his incompetency would be manifest, and could not be removed by a release, under the rule recognized in Houston v. Pruitt, 8 Ala. R. 846 ; Powell v. Powell, 10 ib. 900; Locke v. Noland, 11 ib. 249. But the reason upon which that rule rests is, that to permit the transferror of a chose in action to establish the debt by his own testimony, in a suit for its recovery by the transforree, “would be to introduce the evils of cham-perty and maintenance.” — Houston v. Pruitt, supra; Bell v. Smith, 5 Bar. & Cress. 188. That reason does not exist in the case now under consideration; and the rule, therefore, does not apply. Here, the suit was brought by the intestate in his lifetime; the title, or cause of action, is not created by, nor derived from, the distributee who is offered as a witness; but exists independently of any transfer which he, as a mere distributee, may make, and accrued to the intestate in his lifetime, by virtue of a contract made -with the defendants’ intestate, and passed by operation of law to the present plaintiff, who is prosecuting the suit in his capacity of administrator. The dis-tributee has executed two releases since the death of the original plaintiff, and by them has effectually parted with and removed all interest which he ever had or ever can have as a distributee. After the execution of these releases, he is offered as a witness for the administrator of his father; but is not offered to prove any title, cause of action, or demand, derived from him by transfer or otherwise. To admit him to testify under such circumstances, and in such a case, will not be to introduce any of the [610]*610evils of champerty or maintenance; and although the degree of credit to which he is entitled may be a debatable question, we are satisfied that the releases executed by him removed all objection to his competency, founded on the fact that he was a distributee. — Scales v. Desha, 16 Ala. R. 308; Herndon v. Givens, 19 Ala. R. 313.
5. We now direct our attention to the objection founded on the declaration of said Samuel Tipton to Jordan, made after this suit was commenced, “ that whatever was coming ■ out of the suit belonged to his son Shadrach S. Tipton, who was in Mississippi, and that he could make no arrangement without seeing him.” It is a settled rule, that the competency of a witness is always presumed, until the contrary is proved. — Densler v. Edwards, 5 Ala. R. 31. 'When such a declaration as the one above stated is relied on to prove incompetency, it is not to be taken most strongly against the party making it; but, if with equal reason it admits of two constructions, one of which renders the witness incompetent, and the other does not, the latter ought to be adopted. Looking to the circumstances under which the declaration was made, we think as reasonable a construction as can be placed on it, is, that the father meant by it that he had promised to pay to his son whatever he might recover and receive in the suit; and therefore regarded “whatever was coming out” of it as belonging to his son. Suppose the father had made such promise, it would have conferred on the son the right to claim the proceeds of the suit from the father, or his personal representative, when received by one of them. But from such a demand or cause of action, as well as from all other “ debts, demands, actions, or causes of action,” which the son had on the 27th January, 1855, or which might “result from” the state of things then existing, the then administrator of. the father, and every after appointed administrator, was released and discharged by the release executed by the son on the 27th January, 1855. That release removes the objection to the competency of the son, founded on the declaration made by the father to Jordan.
6. The next matter for consideration is, the order by [611]*611which the father directs the sheriff to pay to his son, Shadrach, the balance of the proceeds of the sale of the land of the father by the sheriff, which might remain after paying all the executions against him. That order contains no words of transfer or assignment, and does not purport to be given, and is not shown to be given, for any valuable consideration. “ The word pay, in the order, though generally a word of transfer, was not used in that sense.” The circumstances, that it ivas drawn on the sheriff, as sheriff, and for no certain sum, but for an unknown and unascertained balance of the proceeds of a sale by the sheriff; and that it was drawn by a father, and contains words which naturally import a mere direction to the officer to pay to the son, and a mere authority to the son to receive from- the officer, — concur to show that the order is rather an authority to pay, than a transfer, or an assignment. — Carrique v. Sidebottom, 3 Metc. R. 297; Clayton v. Fawcett, 2 Leigh’s R. 19. The order, therefore, does not show any interest in the said Shadrach; and if unpaid, was “no defense.” There was no error in overruling the objection to the competency of said Shadrach, nor in the charge of the court excepted to by defendant.
7. That part of the answer of said Shadrach, which was objected to by the defendant, embraces some legal evidence — to-wit, the declarations of the defendants’ intestate in relation to the material matter in controversy in this suit. It is impossible to say that those declarations shed no light on the matters in issue, and that they are irrelevant. — Rutherford v. McIver, 21 Ala. R. 750. As the objection embraced some legal evidence, there was no error in overruling it. — McCargo v. Crutcher, 27 Ala. 171.
8. There was no error in refusing to exclude the statement by the witness Freeman, of the fact that “ the said "William Robinson sold him the said land for two thousand dollars.” Whether that statement was sufficient evidence of the sale, is not the question raised. Whether it was sufficient or not, it was admissible; and that is all that the court decided in relation to it. — 4 Phil. Ev. (C. & H.’s Notes,) 399.
9. No question was raised in the court below as to the [612]*612right of the administrator in chief of Samuel Tipton to prosecute the suit to final judgment, notwithstanding an administrator cle bonis non had been appointed after the administrator in chief had become a party plaintiff to the suit. If the question had been raised in the court below, and had been decided against the right of the administrator in chief to have the judgment rendered in his favor, the matter might have been arranged without prejudice to any one, by making the administrator de bonis non the party plaintiff'. — Code, § 1925. By not raising the question below, the defendant has lost his right to make it here.
10. The overruling of the motion in arrest of judgment, is assigned for error, but is not insisted on in the argument for the appellant. We therefore do not feel bound, under our practice, to express any opinion on it. But if it were insisted on, the only ground upon which the motion was placed, seems to be covered by the ease of Spradling v. The State, 17 Ala. R. 440.
The judgment of the court below is affirmed.