508 HODGES v. MULLIKIN.

benefit of the defendant Harwood; because he does not ask it;
and because his liability, as set forth and admitted by himself in his
answer, may well be separated from any charge against the other
defendant Mullikin; therefore the judgment of the court, so far
as it has bound his interests in favour of those creditors whose
claims he has not paid, must be allowed to stand and have its full
force; and will only be so modified as to let in other existing
incumbrances upon the property conveyed in addition to that of the
mortgage. Hence it is perfectly manifest, that Harwood is a wit-
ness whose interest cannot be at all affected if the decree remains
altogether as it now stands; and if it should be opened for the
benefit of the trustee, and cestui que trusts under the deed of the
7th April 1810, and no further than to let in their incumbrance in
addition to that of the mortgage; then, as Harwood, has been
introduced to have it opened for that purpose, he is a witness tes-
tifying against his own interest; so that, in either view of the sub-
ject, he is a competent witness upon the present occasion.

The competency of the witness Nicholas Brewer has also been
objected to on the ground of his having an interest which must be
affected by the decision now called for. The principles which
have been just applied to the case of the witness Harwood have in
some respects a bearing upon the situation of this witness. He is
the solicitor of the plaintiff, and the trustee appointed by the decree
to make the sale. The judgment of the court, so far as regards
his client and the defendant Harwood, must be allowed to stand;
and therefore he has earned some compensation as the solicitor of
the plaintiff. He has not even yet, however, qualified himself, by
giving bond, to act as trustee under the decree; but, in con-
sideration of his forbearing to execute his trust, and of an exten-
sion of credit agreed to between the plaintiff and the defend-
ant Harwood, he, Harwood, paid to Brewer $200, as it is said, in
part of his commissions; and it is Brewer's liability to refund this
sum, in case the decree should not be executed as it stands, that
makes him, as is alleged, a witness interested to maintain the
decree in favour of the plaintiff by whom he is produced. For-
bearance to sue is a consideration sufficient in law to give validity
to a promise.(e) And according to the rules and practice of the
court, a trustee is only allowed full commission upon the amount
of an actual sale; and if the parties prevent him from making

(e) Selw. N. P. 56.