
    Eunice Boynton, Administratrix, versus Melzar Turner.
    Where a minor son hired a chaise to carry home his sick brother, and the father directed him to pay the hire out of his wages, which belonged to the father; it was holden, that the father had sufficient property in the chaise to enable him to maintain an action against one who upset and broke it, while the son, who had hired it, was returning with it; and in such action the hirer was holden to be a competent witness.
    Trespass for driving a stage-coach against the chaise of William Boynton, the plaintiff’s intestate, .and upselling and breaking it, &c.
    Trial was bad upon the general issue at the last April term in this county, before Putnam, J.
    To maintain the issue on the part of the plaintiff, she offered Stephen Boynton as a witness. The defendant objected to his admission, on the ground that he was a son and one of the heirs of the intestate, and so interested to increase the fund to be distributed. The plaintiff then produced a release from the said Stephen, granting to her all his proportion and benefit of the money which might be recovered in this suit. And the plaintiff also produced a deed, which she had made to said Stephen, indemnifying him from all costs and charges to which he might be liable in consequence of this suit.
    * The said Stephen was admitted and sworn; and he testified, that, on the 1st of November, 1814, being then under 21 years of age, and working for his father, the intestate, in 
      Boston, he applied to' one Nathan Cole, a livery-stable keeper, to hire a horse and chaise, to carry home his sick brother (who was then also a minor, and working for his father in Boston) ; — that he told Cole he could not then pay him, and that his father received all his wages ; — that Cole accordingly let the witness have the horse and chaise, and he carried his brother from Boston to Lunenburg in this county. The witness informed his father of the manner in which he had procured the horse and chaise ; and his father directed lnm to pay for the hire of the same out of the wages which the witness was earning for his father in Boston. The witness had no authority to hire the chaise and horse, other than what is implied in the above statement. He further testified, that, on his return to Boston, he was upset and the chaise broken to pieces by a stagecoach ; and he also related a conversation with the defendant, tending to prove that he was the driver of the same stage-coach.
    The defendant contended, that the intestate had not such a property in the chaise as would entitle him to maintain this action.
    The jury found a verdict for the plaintiff, which was to be set aside and a new trial had, if the said witness ought to have been rejected : otherwise, judgment was to be rendered on the verdict.
    
      Burnside, for the defendant,
    contended, that the witness was still incompetent, notwithstanding the release and deed which had been filed in the case with a view to qualify him. His testimony went directly to increase the funds of the estate.  After his release he was still interested in the increase of those funds, as it would go to increase his own share, and as it might go to relieve the real estate of the intestate from the claims of creditors. His being an heir to his deceased father is a sufficient objection to * his competency. In the case of Smith vs. Blackham, 
      
       the witness was received, because he was but heir apparent; and he. might not survive his father, or the estate might be devised away from him. But the witness in the case at bar had a legal and indefeasible title to a share of the estate.
    The deed of the plaintiff to the witness is merely a release of her claim upon him, for any part of the costs of this suit, which she may be held to pay. But this has no operation ; since he could in no case be personally answerable to her for them. She may still charge them to the intestate’s estate. 
    
    But, if the testimony be received, it does not disclose a right of action in the plaintiff. There was no authority, either express or implied, in the son to bind the father. Nor did the father’s approbation of his son’s conduct in hiring the chaise, or his direction to pay for the use of it out of his own funds, go at all to gain to the lather a special property in the chaise. That property was in the son, and was not transferable by him. He alone has a claim on the defendant for damages.
    Lincoln, for the plaintiff.
    
      
      !) White, Executrix, vs. Derby, 1 Mass. Rep. 239.
    
    
      
       1 Salk. 283.
    
    
      
      
        N. Y. Slate Company vs. Osgood & al., 11 Mass. Rep. 60.
    
   Curia.

On the question of the competency of the witness, wc were at first in some doubt. The case of White vs. Derby would have governed us, but for the release made by the witness in this case. But it has be enargued, that, notwithstanding this release, the witness’s share of his father’s real estate may be lessened. There is much ingenuity in this reasoning, but it cannot prevail. Having discharged himself from all direct and immediate interest in the cause, he must be considered as a competent witness, unless it were in evidence that the intestate left real estate, and that it would be liable to be affected in the way suggested. This evidence must come from the party making the objection ; and, as it does not appear, we are not at liberty to presume it.

* As to the other objection, which goes to the maintenance of the action by the present plaintiff, it is not supported. The case is to be considered as if the intestate had given his son a previous authority to hire the horse and chaise. His ratification of his son’s conduct had relation back to the hiring ; and so the special property must be considered to have been in the father from the beginning. He was then liable to the general owner ; and therefore entitled to this action, in order to indemnify himself for such liability.

Judgment on the verdict  