Hyperlawhypertext legal databasebeta Nancy T. v. Kinney 6 Del. 141

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Nancy T. v. Kinney

6 Del. 141 1 Houst. 141 Court Del. Super. Ct. English

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p. 141
Nancy T. and James W. Hosea, Administrators of John Hosea, deceased, defendants below, appellants, v. Joshua Kinney, plaintiff below, respondent.

Headnote

An officer, who had received money on an execution and delivered it to another person to be paid to the plaintiff without his order, is not a competent witness to prove the delivery of the money to such person, in an action by the plaintiff against the latter for money had and received to his use.
Peonare in assumpsit by Kinney, the plaintiff below,
p. 142
for money had and received to and for his use by Hosea, the decedent. Kinney had recovered a judgment before a justice of the peace against a third party, and had sued out an execution against him and placed it in the hands of McBride, a constable, to whom the money was paid by the defendant' in the writ, and by whom the execution was returned satisfied. The constable afterwards delivered the money to Hosea to be paid to Kinney, but he neglected to do it, and this action was brought to recover it from his administrators.
On the trial, McBride, the constable, was called as a witness to prove the delivery of the money by him to Hosea to be paid to Kinney, and was objected to as an incompetent witness for that.purpose.
E. D. Cullen, for the defendants below:
The witness received the money as constable on the execution, and thereupon returned it paid and satisfied. His testimony is, therefore, to discharge him from his liability to the plaintiff below on this return, if the latter succeeds in recovering it from the administrators of Hosea. There was no order or request from Kinney to him to pay the money to Hosea. He is, consequently, to gain or lose by the event of this suit, and is clearly incompetent. 1 Phil. Ev. 101; 3 Stark. Ev. 1730; Theobald v. Taggert, 11 Mod. 261; 3 Phil. Ev. 105, note 89; 25 Wend. 426 .
C. S. Layton, for plaintiff below:
The witness is competent, and the admissibility of such a witness under similar circumstances has been ruled and settled- by our courts. Pettijohn v. Hudson, 4 Harr. 178 ; Johnson v. Farmers’ Bank, 1 Harr. 117 ; Bennington v. Parkins’s Administrator, 1 Harr. 128 ; Bailey v. Capelle, 1 Harr. 449 ; Clark v. Maloney, 3 Harr. 68 . Besides, the witness is not liable in this, case to Kinney on his return, if he should fail to recover the money from the administrators of Hosea, because as against him the action is now barred by the statute of limitations.

sustained the objection, and ruled out the testimony of the witness, on the ground that he was interested in the event of the suit, as the recovery of the plaintiff would discharge him from his liability for the money on his return to the execution.. For, conceding the fact to he as had been alleged, that the action against the constable on his return was now barred by the statute of limitations, it did not remove his interest in the event of this suit, for a recovery by the plaintiff in this action would absolutely absolve and discharge him from any liability tó be sued at all by the plaintiff on his return; and would, to say the least of it, afford him two defences, instead of one, against such action.

The case afterwards went to the jury, and the defendants below had a verdict.

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