Nunnally v. Becker

Per Curiam. Witnesses: Competency of parties:Transaction with intestate. The proffered testimony of the appellant to the effect that he had delivered to the defendant’s intestate a box of money to be deposited in his safe, was a “transaction” with the intestate, within the meaning of the proviso to sec. 2 of the schedule to the Constitution and inadmissible for that reason. The witness’ knowledge that the box was in the safe was not competent evidence because it was derived solely from the transaction between the parties. The distinction contended for by the appellant’s counsel seems to be sustained by the case of Tisdale v. Maxwell, 58 Ala., 40, where a witness who was incompetent to prove the delivery of a horse to a person who had since died, was held to be competent to prove the fact of the possession of the horse subsequent to the delivery; but the facts of this case prevent the application of that rule for the reason stated, viz.: the knowledge of the witness to the effect that the box was in the safe was a part of the transaction with the deceased. It may be admitted that the appellant was a competent witness to prove the contents of the box under the common law rule announced in U. S. v. Clark, 96 U. S., 37; but the testimony was incompetent until the foundation was laid by competent evidence tending to prove that the deceased had received the box and converted its contents. There, was no testimony offered outside of the incompetent testimony of the appellant, to prove these facts, and he was not, therefore, prejudiced by the exclusion of the testimony. Affirm.