16 Ala. 308 | Ala. | 1849
A release by a distributee to the administrator of all claims upon the estate, makes the distributee a competent witness for the administrator in .a suit against the latter by a creditor of the estate; and the release is equally effectual to remove the interest whether it be founded upon a consideration or not. Hall v. Alexander, 9 Ala. Rep. 219; 3 Phil. Ev. C. & H’s notes 1561; Boon v. Nelson’s heirs, 2 Dan. Rep. 391. But a release to the administrator of “ the demand •in suit” is insufficient to make the distributee competent to es-
In Maury’s adm’r v. Mason’s adm’r 8 Port. Rep. 211, it was held that a distributee cannot make himself a competent witness for the administrator by releasing all his interest in the estate to the co-distributees; that a release executed for such a purpose, whether valid or not as between the parties to it, will not, upon grounds of public policy, remove the disqualification. See also, Powell, et al. v. Powell, adm’x, 7 Ala. Rep. 582; Houston v. Prewitt, 8 Ala. Rep. 846; Powell, et al. v. Powell, 10 Ala. Rep. 900; Locke v. Noland, 11 Ala. 249; Bell v. Smith, 5 B. & C. Rep. 188; Scott v. Lloyd, 12 Pet. Rep. 145.
A release in order to remove the interest of the party releasing need not be actually delivered from the releasor to the releasee. If it be intended to operate as such, and presents an operative appearance to the court, it shall have that effect. A release g<j®d in form is available, though not actually delivered, but only entered on the minutes of the court. McCausland v. Neal, 3 Stew. & Port. Rep. 131; 2 Phil. Ev. C. & H’s notes, 272; 3 ib. 1561, and cases there cited; 1 Greenl. Ev. § 429.
Bell v. Smith and others, 5 B. & Cresw. Rep. 188, was an action of assumpsit, brought in the name of Bell on a policy of insurance. The declaration averred that Armet, Gibb, Robertson and Wimble were at the time of the loss interested in the goods insured, to the full amount of the policy, and that it was made for their use and benfit. At the trial Armet was offered as a Avitness for the plaintiff. He was objected to as incompetent, and the plaintiffs gave in evidence a deed poll executed by A.,, before the commencement of the action, whereby he released to the plaintiffs all actions which he might have by reason of the policy, or for any monies to be recovered by them from the underwriters. They also gave in evidence an indenture executed by A. after the commencement of the action, Avhereby (after reciting the plaintiffs had effected the policy, that A. G. P, and W. Avere the persons interested,
It remains but to declare that the judgment is reversed, and the cause remanded.