
    Corse vs. Patterson.
    Appeal from Kent county court.
    The cause was argued before Buoiianan, Earle, and Martin, J. by
    J t a * “Neither a husband nor wife is a competent witness in a civil suit to which either is a party, nor iu an action between, tlmd persons, directly aliev tint; the interest of either.
    jj J ij J Í In an action of repiev in brought by l*, against C,fc> recover two s.< ves held oy C under a i»iil of saie. in the nature of a mortgage, from 3N, ihe wife of N is not a competent witness to pi-ove title in N, at the time of the execution oi such bill of
    : Where P contracted with N for tin; saie of ecttain slaves, and N was t.o take them into his possession, and pay for them at an ensuing day, but the property of P was to continue mn.il they were paid for, and^ a part of the price agreed upon was paid to Heidi that P did not, ac the time of the contract, part wiih his interest in the •slaves; that the paymí nt of the who e oí the ‘stipulated price was a condition preeed' lit, on the performance of which alone, and not before, the title could ve-t in li. That the part payment was not such a pirformanee as eoiDdof itsetf have the effect to divest i* of his property, but that the title re» mmned in him, notwithstanding any indulgences wtncli he may have extended to N. And although, lie might permit the possession to remain in N, he was under no obligation to stand by -aid ¡mrfer N to transfer tli m to another person, and thereby incur the risk of losing them altogether, but had a right to assert hi*! ihiiia whenever he saw them passing; into other bands, oil Che ground tú-! the title b} theteim of the original tonU’aet was never out of kinn
    
      Carmichael and Chambers, for the Appellant, and by
    
      Gale and Tilghman, for the Appellee.
   Buchanan, J.

delivered the opinion of the court, in which a the facts are sufficiently staled. This is an appeal from the' judgment of the court of Kent county, in an action of re- * jdevin brought by Henry Patterson, (the appellee,) against jj Jumas Corse, (the appellant,] for two negro boys. At the J trial of which, upon issues joined on the two pleas of non ij cepit, and property in the defendant, two bills of exceptions' were taken .on the part of the defendant. J

It appears from the facts stated in the first bill of excep- Í lions, that the two negro boys were born the properly of s the plaintiff, and continued in his possession until the year» 1818. That the defendant, from whose possession they > were replevied, claimed and held them in virtue of a bill1 of sale to him, in nature of a mortgage, from James Now - j land, dated the sixth of December in the year 1820; and : that for the purpose of showing a subsisting title in James' Nowland, at the time the bill of sale was given, Henrietta Nowland, the wife of James Nowland, was offered as a, witness to prove that the plaintiff sold them to her in the year 1818, before she intermarried, as it appears, with .fames Nowland, which was objected to on the pai-t of the plaintiff, and rejected by the court; and the question is, whether that testimony of Henrietta Nowland ought to have been admitted? , , ' - 5 l J , }

It is a settled rule, that neither a husband nor wife can be received as a witness in a civil suit to which the other is a party. They are not competent witnesses against each other, because that would be contrary to the policy of marriage; nor iu favour of each other, because their interests are the same. It is also a general rule, that neither a husband nor wife is a competent witness in an action between third persons, directly affecting the interest of the other, > 0to which the cases of Williams vs. Johnson, 1 Strange, 504, and Baring vs. Reeder, 1 Hen. & Munf. 154, cited in argument, are by no means opposed. The first was an action agaiiist the daughter’s husband, for her wedding clothes; in which her mother was admitted to prove that they were delivered, not on the 'credit of the daughter, but of her father, the husband of the witness, on the ground, that though the testimony went to exempt the defendant in the action from the payment of a debt which was due by her husband, yet it did not fix the debt upon the husband; as neither her testimony, nor the credit founded upon it, could 'ever have been given iii evidence against him in an action brought for the same debt, which could only have been sustained upon other evidence. The only operative effect, therefore, of her testimony; was to exempt the immediate; defendant from being charged with a debt which was due from another. And the latter, Baring vs. Reeder, was decided on the same principle, with the additional ground, that the interest of the husband in that case was equally balanced between the parties, and consequently could not be affected by the testimony of his wife; and neither of these cases has any bearing upon this; it is indeed an Action between third persons, but directly affecting the interest of James Nowtand, on which the fact attempted to be proved by his wife would have an immediate operation in his favour; If the plaintiff, Henry Pattkrson, never parted with his interest in the négroes in question, he has a right to recover them, and James Howland can have no benefit of the right to redeem under the terms of the bill of sale to Corse, the defendant; but if, on the contrary, the plaintiff did sell them to Howland’s wife, before he intennarríéd with her, Howland, by his iriárríage, acquired a right to dispose of them, and has a subsisting interest iñ the right to' redeem, which is increasing in proportion as' the negroes, (who are still very young,-) increase in value. He of consequence is directly interested to the full arn'ounf of the Value of the right to redeem,- be that what it may, in defeating the plaintiff’s action, since upon the'plaiiitiff’s téeovery or not depends- his deriving any benefit of tire- right' to redeem. On the' ground of' interest, therefore, liis wife was not a competent witness to prove' a sale of the negfoea by the plaintiff to her when sole, and thus to defeat the' action, by which event her husband would be immediately ber.efitted, and her testimony was properly rejected.

It appears, however, by the second bill, of exceptions*, c-u the testimony of other witnesses, that sometime in the spring of the year 1818, a contract for the sale of the wegroes in question was entered into between the plaintiff and Henrietta Briscoe, bpforc Her iniennamage with James Nowland, by which it was stipulated, that she should take them into her possession, to be,paid for, at a price agreed, upon, ia the course of the fall of the same year, but that, they should remain his property until they, were paid for. Evidence was also offered to prove the admission of the plaintiff, that he had received a part of the .price agreed upon, but, without showing how much. Ou that evidence, in connexion with 1he testimony contained in the first bill of exceptions, a motion was made to., She court below to d' ~ reel the jury to find for the defendant, if they should believe that the plaintiff had received a part of the money stipulated to be paid, which direction the court .refused to give; and the question here is, whether.upon the whole case, (admitting no other agreement,to have been, entered into, but that the sum paid was received under the contract, as. statedi,) the plaintiff is entitled to recover? Which seems to lie in a narrow compass.

The plaintiff'did not, at the time of the contract, part with his interest in the negroes, but by the express terina of it they were to remain his property until they were paid for, which was to have been in the course of the next ensuing fall. The payment of the whole of the stipulated price was a condition, precedent, ou, the performance of which alone, and not before, could the title have vested in Henrietta Brl.coe. That condition no where appears to have been yes formed. It is not shown that the stipulated price was paid within the time agreed upon, or at any other time, aud the payment of a part was,not, such a performance as could of iiself have the effect to divest the plaintiff of his property in the negroes, but the title remained in him notwithstanding any indulgencies which he may have extended to the oilier contracting party; and being in him, neither Henrietta Bñscoe, before her manjage, nor James Nowland, he;.: lmsliand, since, could sell them to any body else; and though he might permit the possession to re-, main in Nowland, he was under no obligation to stand by and suffer him to transfer them to the defendant, or to any other person, and thereby incur the risk of losing thernab; together, but had a right to assert his claim whenever he saw them passing into other hands,- not on the ground oí' rescinding the contract, which it has been contended he could not do after the receipt of a part of the purchase money, and the length of time that had elapsed before the issuing of the writ of replevin, but on the ground, that the title, by the terms of the original contract, was never out of him> — the condition precedent never having been performed, and the. receipt of. a part of the sum agreed upon not having the effect to operate a divésture of it, in the absence of, any other contract or, agreement between the parties.

We concur, therefore, in opinion with the court below» on each exception, and affirm the, judgment with costs.

J.UDGMEIST A1-FUÍ3I.ED.  