Russell v. McKenzie

13 Md. 560, 1859 Md. LEXIS 44

• Court: Court of Appeals of Maryland
• Decided: June 10, 1859
• Status: Published

Opinion

Bartol, J.,

delivered the opinion of this court.

This is an action of replevin, brought by the appellee, to recover from the appellant one hundred tons of pig-iron; the defendant pleaded, 1st, non cepit, and 2ndly, property in Charles Mantz and Michael Byrne. The plaintiff joined issue on the first plea, and to the second replied property in himself, on which issue was joined. In the course of the trial a single exception was taken by the defendant, which is brought up for review on this appeal.

The plaintiff offered evidence tending to show his title to, and property in, the iron, under a contract between him and William Brown, the manufacturer, dated the 22nd of March 1856. The defendant gave evideuce to prove, that on the 19th of September 1856, William Brown, the manufacturer, sold a part of said iron to Charles Mant.z and Michael Byrne, and on the 26th of September, sold to said Mantz and Byrne the residue of said iron; and that said Brown, after said sales to Mantz and Byrne, caused the said iron to be unloaded from the canal boat, and delivered to the defendant, Russell, to be by him forwarded to said Mantz and Byrne, or their order. And in the two receipts given by Brown to Mantz and Byrne, for the purchase money of said iron, which were also in evidence, the said Russell is designated as the agent of Mantz and Byrne, and the iron is stated to have been delivered to him in that character.

(Decided June 10th, 1859.)

The defendant then offered to prove by Charles Mantz, several facts tending to show, that at the time of the institution of the suit, the property in the iron in controversy was not in the plaintiff, but in said Mantz and Byrne. Objection was made, by the plaintiff, to the competency of said Mantz as a witness, which objection the circuit court sustained, holding that he was incompetent.

We think there was no error in this ruling of the circuit court. The witness was manifestly interested in the result of the suit, and, therefore, inadmissible to testify for the defendant.

The evidence in the cause, adduced on the part of Russell, the defendant, showed, that he claimed no title to the property in dispute, but was the mere agent or custodian for Mantz and Byrne, whose title was set up to defeat the action. The immediate effect of a judgment for the defendant would have been, to restore the possession of the property to Russell, who Would have held it, not in his own right, but as agent for Mantz and Byrne; his possession was their possession; a recovery by him would have been, in effect, a recovery for the use and benefit of the witness, who had thus a direct interest in defeating the action, and for that reason was incompetent to testify.

Judgment affirmed„