Bank of Woodstock v. Clark

The opinion of the court was delivered by Isham, J. The declarations of Gilman Henry were admitted on the trial of this case, and were properly received as original testimony. They were made at the time the money was paid— were a part of the transaction, and were calculated to illustrate the character and object of that payment. Such testimony has always been received, for the purpose of showing the application or appropriation of the money paid, and when made at the time of payment, they become part of the res gesta, and are admissible in evidence as such. 1 Greenleaf’s Evidence, § 108, and cases cited. From this evidence we learn that a part of the money paid at that time to the plaintiffs, was paid from the personal resources of the sheriff, and that, to the amount of that payment, the execution has not been paid by the debtors. This suit is prosecuted, with the [311] plaintiff’s consent, for the benefit of those by whom that advance payment was made; and they are entitled to a judgment, for the amount so advanced. There can be no doubt, either, as to the competency of Mr. Henry as a witness. Whatever interest he may have had in the event of the suit, was discharged by the assignment of the claim, and the receipt of a consideration therefor. That assignment operated as a legal transfer of the claim to Jennings, so as to cut off any further claim Henry can have thereon. If the claim is recovered, it is for the benefit of Jennings. If lost, it is the loss of Jennings. The case of Moore v. Rich, 12 Vt. 563, is decisive upon this question. An assignment was there made under similar circumstances, and for a similar purpose, and the witness was held competent; and that no principle of public policy was involved in its consideration, that required the court to regard him as disqualified. These being the only questions urged upon our consideration in the case, ijie judgment of the County Court must be affirmed.