
    Janey v. Blake’s Adm’r.
    February, 1837,
    Richmond.
    Judgment of Circuit Court — Finality—When Superse-deas Will Lie Thereto. — On a supersedeas to a judgment oí a county court, the circuit court reverses the judgment with costs, but omits to give such judgment as the county court ought to have given, and retains the 'cause: Held, this judgment of the circuit court is to be regarded as its Anal judgment in its appellate character, and a supersedeas will lie thereto from the court of appeals.,
    
    Case Disapproved. — The case of Norris v. Tomlin &c., 2 Munf. 336, considered to be badly reported, and no authority for the doctrine there laid down.
    Bills oí Exception- — Competency of Witness. — Question as to the competency of a witness, arising under a bill of exceptions, and depending on what should be considered the real state of the case, upon a fair intendment.
    Administrators — Action against — Witness — Distribu-tee. — In an action against the administrator of an intestate’s estate, a distributee is not a competent witness for the defendant, unless he hafe made a valid release of all his interest in the estate.
    Action of assumpsit, in the county court of Essex, by Joseph Janey against Benjamin Blake administrator of William Blake. At the trial the defendant offered as a ^witness John Richards junior, the husband of a sister of William Blake, who it was admitted had died intestate. It appeared that Elliott Blake by his will, after certain specific legacies, gave the residue of his property to his brothers and sisters; that the wife of John Richards was the sister of EUiott Blake, of whom William Blake was executor; and that she was still living. The plaintiff thereupon moved the court to exclude the witness from giving testimony, as incompetent from interest, upon which the defendant’s attorney, in the absence of the defendant, offered to enter upon record a release to the witness of all liability to the administrator for costs for which the intestate’s estate was liable, and of all other liability of the said administrator ; and the witness also offered to release all his interest in the estates of the said William and Elliott Blake, if any he had; which the plaintiff’s counsel refused to accept, and thereupon the court refused to permit the witness to give testimony; to which opinion the defendant excepted. A verdict being found for the plaintiff, judgment was given on it; and then a super-sedeas was obtained from the circuit court. The circuit court, being of opinion that the county court should not have refused to admit the evidence of Richards, ' reversed the judgment with costs, but failed to give such judgment as the county court ought to have given. Instead of proceeding to give such judgment, it ordered that the cause be retained in the circuit court; and it did not appear on the record that it was so retained by consent of parties.
    To the judgment of the circuit court a supersedeas was awarded by a judge of this court.
    Johnson, for the plaintiff in error,
    cited, on the subject of the interest of the witness, 2 Starkie on Ev. part 4, p. 770, and note 2; Temple v. Elliott, 2 Munf. 452; Rowt v. Kyle, Gilm. 201. A doubt being suggested whether the judgment of the circuit court was such a *final judgment as would admit of a supersedeas thereto, the following authorities were referred to on that question: Norris v. Tomlin &c., 2 Múnf. 336; Jones v. Raine, 4 Rand. 386; Cowling v. Nansemond Justices, 6 Rand. 349; Manlove v. Thrift, 5 Munf. 493; Gyons v. Gregory, 3 Hen. & Munf. 237.
    
      
      Judgment of Circuit Court — Finality—When Super-sedeas Will Lie Thereto. — As holding that where, on a supersedeas to a judgment of a county court, the circuit court reverses the judgment, but omits to give such judgment as the county court ought to have given, and retains the cause, the judgment of reversal by the circuit court must be regarded as final in its appellate character, and, a supersedeas will lie from the court of appeals, the principal case was cited, in Morgan v. Ohio River R. Co., 39 W. Va. 24, 19 S. E. Rep. 590.
      See further, on this subject, monographic note on “Appeal and Error” appended to Hill v. Salem, etc., Co., 1 Rob. 263; monographic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 426.
    
    
      
      Bills of Exception. — See generally, monographic note on “Bills of Exception” appended to Stoneman v. Com., 25 Gratt. 887.
    
    
      
      Administrators — Action against — Witness — Dis-tributee.-To point that, in an action against an administrator, a distributee is incompetent as a witness for the defendant, unless rendered competent by releases, the principal case is cited with approval in Reynolds v. Stephenson, 11 Leigh 371.
    
   BROCKENBROUGH, J.

In an action against Benjamin Blake as administrator of William Blake, for goods sold to him by the plaintiff, the defendant offered as a witness to defeat the claim, one Richards, who had married the sister of W. Blake deceased, and the county court decided that he was an incompetent witness. Suppose the wife had been offered as a witness; would she have been incompetent? The first objection is that she was the sister of W. Blake. If the objection had -been that she was a distributee of the estate of W. Blake, the objection would have been good, because by her evidence she would have prevented the diminution of the fund to be distributed, and as she was to share in that fund, she was interested in preventing the diminution of it: but she is not stated by the bill of exceptions to be a distributee; she was only a- sister, and W. Blake might have left children'.

The next objection to the competency of the wife of Richards as a witness is difficult to comprehend. She was the sister, as W. Blake was the brother, of one Elliott Blake deceased; he by his will made W. Blake his executor, and the said W. Blake and mrs. Richards were two of the residuary legatees of Elliott Blake. What has this to do with the question of mrs. Richards’s interest in the case before the court? Is it supposed that she is interested to prevent a diminution of the individual funds of W. Blake, lest he should be therebj' disabled from applying the funds of Elliott Blake’s estate to the discharge of her residuary legacy? This seems to me to be a. farfetched notion, and that the interest is *as uncertain and contingent as can well be imagined. The court ■ought not to have presumed that the individual funds of W. Blake would have been mixed up with the funds of Elliott Blake’s estate, so that the diminution of the former would have affected the amount of the latter, or, at any rate, of mrs. Richards’s share of the residuum. I see no ground on which mrs. Richards could have been excluded as a witness, and therefore her husband ought not to have been. The county court, I think, erred in this particular. The judgment of the circuit court, therefore, reversing that of the county court, is right and ought to be affirmed. That court, however, omitted to set aside the verdict and direct a new trial of the issues, which ought to have been done. This error is not complained of by the appellant, and is in no wise prejudicial to him. In affirming the judgment, I think it will be right to remand the cause to the circuit court, with directions to that court to set aside the verdict and award a new trial, to be had at its own bar, according to the former order of that court.

TOCKER, P.

I am satisfied, upon examining the statute and the authorities, that the supersedeas was not improvidently awarded in this case. See Cowling v. Nansemond Justices, 6 Rand. 349. The case of Norris v. Tomlin &c., 2 Munf. 336, is badly reported, and is no authority for the doctrine there laid down. In the present case the reversal of the judgment of the county court by the superiour court was of necessity a final judgment. It settled the only question which that court was called upon to settle. It adjudged costs to the party prevailing, and it could never have been altered or set aside by the same court at a future term. Moreover the court had only power to pronounce a final judgment, and if that judgment was a judgment of reversal, it was bound to send the cause back to the county court, there being no power in the supe-riour court of law to retain *a cause for further proceedings after reversing the judgment of the county court except by consent of parties. The judgment, it is true, is erroneous, not only in retaining the cause, and in omitting to enter such judgment as the county court should have entered, which it ought to have done upon reversing the judgment; Darby v. Henderson &c., 3 Munf. 115; Mantz v. Hendley, 2 Hen. & Munf. 308; Blane v. Sansum, 2 Call 496; 1 Rev. Code, ch. 69, § 60, p. 240, but it is also erroneous in reversing the judgment of the county court. The testimony of Richards having been objected to expressly on the ground of interest in the estate of the decedent, who died intestate, the wife of the witness being the decedent’s sister, and the objection being met by the defendant not by proof that the intestate left children, but by an offer to execute mutual releases, the superiour court ought to have inferred that he died without children ; it ought to have inferred an admission of that fact from the defendant’s conduct; it ought to have inferred that the witness was interested as a distributee, since the defendant conceded it by the offer of a release. And as to the releases, they were clearly insufficient ; for the release ought to have been from the distributee to the defendant, and his acceptance of it, and not the plaintiff’s, was necessary to make it valid. But it appears by the bill of exceptions that because the plaintiff refused to receive it, nothing further was done, and the release never was completed by delivery and acceptance.

I am therefore of opinion that the judgment of the superiour court should be reversed with costs, and that of the county court affirmed.

Judgment of circuit court reversed, and that of the county court affirmed.  