Heskett v. Borden Mining Co.

Tuck, J., delivered the opinion of this court: The appellee sued the appellant, to recover the value of a quantity of coal, which the latter had taken on board his canal boat, to carry from Cumberland to Alexandria. The boat reached a point on the canal beyond which it could not proceed, and the coal never did reach its port of destination, or, at least, was not delivered there to the plaintiff. The case admits that it “passed into the possession of the defendant, and was by him used or disposed of for his own benefit.” The plaintiff having proved and rested its case, the defendant offered to show the circumstances under which he had ¹⁸⁵ converted the shipment to his own use, by a witness, who, “on taking the stand,” was asked by the plaintiff the following question, “to test his competency,” to wit: “whether there was an account between the witness and defendant, settled or unsettled'?” to which he replied, “that there was; and that, in that account, between witness and defendant; the witness has taken to himself credit against the defendant for the value of the very coal for which the plaintiff is seeking to recover in this action.” At this point of the trial the plaintiff objected to the competency of the witness, which objection the court sustained, and no examination of the witness was had, to show a particular relation to the parties or the coal, authorizing him to make any disposition of it. It is conceded by the counsel on both sides, that, what the defendant offered to prove, as stated in the exception, is not to be considered a concession in conformity with what was ruled in the case of Farmers Bank vs. Duvall, 7 G. & J., 90; that defects in evidence cannot be aided by an averment of the purpose for which it is offered; being the mere statement of the party and proving nothing.

If, however, the objection had been taken to the admissibility of the evidence, and not to the competency of the witness; it must have been assumed that the witness would have proved the facts proposed to be given in evidence. The witness’s competency here, on the ground of interest in defeating the plaintiff’s claim, is to be determined by the question and answer set out in the exception. If the record showed that the defendant claimed the coal under the witness, as vendor, in virtue of the sale which the appellee’s counsel seeks to