Heaslet v. Spratlin

Cockrill, C. J. As the suit was by an administrator to recover a debt claimed to be due to his intestate, the defendant was not a competent witness to testify to transactions with and statements made by the intestate in reference to the matter in controversy. Sec. 2, schedule to const, of' 1874. See Nunnally v. Becker, 52 Ark., 550. But the record does not disclose that objection was made to the introduction of the testimony, and it cannot be raised here for the first time. Accord e c u t e elpayment. unex The judgment for the defendant cannot be sustained,, however. The receipt for money paid to the intestate, which was the foundation of the defense, does not purport to be in full payment or a release of the debt which the defendant owed. The due bill which represented his debt was-not surrendered to him, and the partial payment was made in money after the debt was due. The case stands, then, only upon the defendant’s testimony of the parol release. But that, by all previous decisions of the court, was not an executed release, but only an agreement for a release based upon no consideration and therefore void. Gordon v. Moore, 44 Ark., 349. Reverse and remand.