5 N.H. 540 | Superior Court of New Hampshire | 1831
It is evident,-that this suit is prosecuted for the benefit of the estate of Josiah Little, deceased. We think this must be presumed, because if it were not so, the interest of the witness might have been easily removed, by returning to the plaintiff the demands which had been lodged with the intestate as security. The
Is that interest extinguished by the release ?
It does not appear on the face of the release, in whose favor it was intended to operate. It is not, however, necessary that the parties to a contract should be expressly named. It is enough if they appear from the nature of the transaction. 4 B. & C. 235, Green v. Davies; 2 Strange, 706, Chadwick v. Allen; 13 Mass. Rep. 158, Brown v. Gilman; D. & R. N. P. C. 8, Childers v. Boulnois.
But in this case, to whom could a release of the interest of the witness be made ? He is the administrator, has the demands in his own hands, and will receive the money when recovered. If some other person had been administrator, a release might have been made to such person. 9 Johns. 123, Woods v. Williams; and as in that case the only claim which the witness could ever have to the money recovered in this case would have been against such administrator, perhaps this release might have been considered as a release to such administrator.
But in Whose favour is this release to be considered as made ? In favor of the witness himself as administrator, in favour of his coheirs, or in favor of Webster the plaintiff? We are unable to find any thing in the instrument itself,iOr in the nature of the transaction, which shows in whose favour the release was intended to operate, and are of opinion that it is void for this uncertainty. The witness was not a competent witness.
