Delee v. Sandel

Buchanan, J. This is a claim against the succession of Wade E. Qaulden, brought by an assignee and attempted to be proved up by the testimony of the [209] assignor, John Jeter. The defendant excepts to this witness, on the ground that he is bound in law to warrant the existence of the debt assigned. This objection ought to have been sustained, Jeter was clearly incompetent without a release, and there is no release in the record. He was examined under a commission, and in answer to the fourth interrogatory propounded to him by plaintiff he says, “ I am in no manner whatever bound as warrantor or otherwise on said account. I have a written lease signed by John S. Delee, somewhere among my papers, releasing me from all responsibility on account of this claim. But I cannot now lay my hand on it.” This will not suffice. The plaintiff ought to have put on record a release of the liability of this witness over to him, in such a shape that it would have appeared beyond the possibility of being afterwards contradicted by him, plaintiff, that this witness when he gave his testimony, was free from the risk of loss by the result of the suit. As it is, we have nothing emanating from the plaintiff. Wo have merely the say so of the witness, that he has been released; And the obliviousness of this witness, upon the natural facts upon which he was examined, as for instance: the particulars of the settlement between himself and Gaulclen, and of the consideration of the transfer by himself to plaintiff of the claim now in suit, is not calculated to inspire us with confidence in the accuracy of the witness’s recollection of the release which, he tells us, is someiohere among his papers, but which he does not take the trouble to hunt up and produce. The usual and regular course is, for the release to be tendered to the witness before he is sworn in the cause ; and that the release be inserted in the return to- the-commission with the certificate of the Commissioner that it was so tendered. AnotheS'witness has been examined, also1 under a commission, to prove the pretended settlement between Ganlden and Jeter, on which this suit is founded. But the evidence of this witness {Dyer) is inconsistent with the allegations of the petition, for the petition alleges that,, some time in the year 1849, Gaulden became indebted to Jeter “in a settlement had between the parties,, itr the sum of eight hundred dollars besides the sum- of two hundred and eighteen dollars and forty cents, omitted in said settlement by the said Jeter and Gaulden.1' The witness Dyer states, “I was present when the settlement was made, and assisted the parties in making it, and the balance due to John Jeter by Wade 3. Gcmlden was one thousand and eighteen dollars and forty cents, and •was agreed to by loth the parties." This is obviously not the settlement declared upon in the petition; At all events, the rejection of Jeter's testimony leaves the plaintiff’s case supported by one witness alone, which would be insufficient to entitle him to a judgment, the amount demanded being over five hundred dollars. Turning, to the evidence of defendants, we find that, while the testimony of plaintiff relates entirely to a verbal acknowledgment of indebtedness by the deceased, Gaulden, (the date of which acknowledgment is fixed by the amended petition at the 5th March, 1849,) defendants have produced the following-document signed by Jeter, of that same date: “ Keulaktown, March 5th, 1849. This is to certify, that I have this day made a full and final settlement with' Wade 3. Gaulden, which,is in full of all and every demand up to this date. John Jetee.” [210] There is a hill of exceptions taken by plaintiff to the admission of this document in evidence; but it was clearly admissible under the plea of payment, in the answer. It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed, and that there bo judgment for defendant, with costs in both courts. Merkicic, C. J., was recused in this cause.