Gilpin v. Marley

Superior Court of Delaware

Gilpin v. Marley

9 Del. 284

DecidedJuly 5, 1871

StatusPublished

This text of 9 Del. 284 (Gilpin v. Marley) is published on Counsel Stack Legal Research, covering Superior Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gilpin v. Marley, 9 Del. 284 (Del. Ct. App. 1871).

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Opinion

By the Court.

We concur in the principle announced in the authorities just cited, and must, therefore, overrule the motion for a nonsuit.

*286 Richard M. W. Marley was then called as a witness for the defendant.

Spruance,

objected to his competency as a witness for the defendant, because he was a joint maker with him of the note. Slegg v. Phillips, 31 E. C. L. R. 374. Simmons v. Smith, 21 E. C. L. R. 697. Hall v. Cecil, 19 E. C. L. R. 89. 2 Pars, on Bills and Notes, 465.

Bodney.

The policy of the law favors the admission, not the exclusion of witnesses. But in the case of a negotiable instrument to render a joint maker incompetent as a witness for another maker of it in an action against him on the note, it must appear that the note was not only negotiable, but that it had been negotiated, which was not the case in this instance. Smith’s Ld. Gases, 44, Law Lib. 44. ’

In the case of Massey v. Turner in the' court below Deakyne, the joint maker, was called and examined as a witness for the defendant without objection, but now the objection is made on that ground in this case, we must exclude the witness called as incompetent to testify for the defendant, because of his liability as á joint maker of the note to the defendant for contribution in the event of the plaintiff's recovering a judgment against him in this action, and which judgment would be evidence against him in an action by the defendant for contribution.

William J. Jones Esquire, was then called as a witness for the defendant and was sworn, but in reply to inquiries by the counsel for the plaintiff, stated that he was a member of the bar in Maryland, and had been the general counsel of the plaintiff in all his professional business since the death of his father; and that he had no knowledge or information in regard to the note in question, except such as had been communicated to him as his professional counsel, and which related solely to the consideration and negotiation of it.

*287 Spruance,

objected to bis competency as a witness in the case for either party on that ground.

TJie Court excluded him, and the plaintiff had a verdict.

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By the Court.

We concur in the principle announced in the authorities just cited, and must, therefore, overrule the motion for a nonsuit.

*286 Richard M. W. Marley was then called as a witness for the defendant.

Spruance,

objected to his competency as a witness for the defendant, because he was a joint maker with him of the note. Slegg v. Phillips, 31 E. C. L. R. 374. Simmons v. Smith, 21 E. C. L. R. 697. Hall v. Cecil, 19 E. C. L. R. 89. 2 Pars, on Bills and Notes, 465.

Bodney.

The policy of the law favors the admission, not the exclusion of witnesses. But in the case of a negotiable instrument to render a joint maker incompetent as a witness for another maker of it in an action against him on the note, it must appear that the note was not only negotiable, but that it had been negotiated, which was not the case in this instance. Smith’s Ld. Gases, 44, Law Lib. 44. ’

In the case of Massey v. Turner in the' court below Deakyne, the joint maker, was called and examined as a witness for the defendant without objection, but now the objection is made on that ground in this case, we must exclude the witness called as incompetent to testify for the defendant, because of his liability as á joint maker of the note to the defendant for contribution in the event of the plaintiff's recovering a judgment against him in this action, and which judgment would be evidence against him in an action by the defendant for contribution.

William J. Jones Esquire, was then called as a witness for the defendant and was sworn, but in reply to inquiries by the counsel for the plaintiff, stated that he was a member of the bar in Maryland, and had been the general counsel of the plaintiff in all his professional business since the death of his father; and that he had no knowledge or information in regard to the note in question, except such as had been communicated to him as his professional counsel, and which related solely to the consideration and negotiation of it.

*287 Spruance,

objected to bis competency as a witness in the case for either party on that ground.

TJie Court excluded him, and the plaintiff had a verdict.

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9 Del. 284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilpin-v-marley-delsuperct-1871.