assigned by delivery, and that possession was prima facie evidence of a delivery ; and the motion for a nonsuit was, therefore, refused.

On the part of the defendant, it was proved, that William Heath, Sen’r, the original payee, had, by his last will, bequeathed “ all bis bonds, notes, and accounts,” to Adam Heath, subject to the payment of his debts; that the defendant was appointed one of the executors of the will, and had duly qualified ; and that the notes now in suit had been returned in the inventory, by the executors, as part of the estate of their testator. It appeared, however, that at the testator’s death the notes were in possession of the plaintiff, who claimed them as his ownj and that they had been temporarily obtained from him, for the purpose of being included in the inventory.

Lucy Heath, the wife of Adam Heath, the legatee, was offered as a witness by the plaintiff, to prove that his possession of the notes was bona fide, and that he was intitled to sue for them. Her competency was objected to on the ground, that the interests of her husband were involved in the testimony proposed to be given by her. The presiding Judge overruled the objection. Adam Heath was not a party to this suit, and if he had any interest, it was to defeat the plaintiff’s claim. He was certainly a competent witness to testify against his interest; and his wife must be equally so, unless he himself interposed an objection.

The witness was then sworn, and testified, that William Heath, Sen’r, in his life time, delivered the notes now in question, to the plaintiff, for the use of his grand-daughter, who was a daughter of the witness ; that after the testator’s death, the plaiutiff, at the request of the executors, put the notes in their hands for the purpose of being returned in the inventory ; and that after the execuiors had taken an account of the notes, they delivered them to Adam Heath, who returned them to the plaintiff.

It was contended for the defendant, that the plaintiff could not maintain these actions, as it appeared not only that he had not given any consideration for them, but that, in fact, he had no interest in them whatever, and was not the real owner. That were it otherwise, however, there was no sufficient evidence of any assignment by William Heath, Sen’r, in his life time ; but that the notes remained a part of his estate at his death, and were extinguished by the defendant’s becoming executor of his will, and the representative of his estate : that the delivery of the notes to Adam Heath was not, therefore, any evidence of the executor’s assent to the legacy ; or at least would not revive the notes, or enable him, or any subsequent holder, to maintain an action upon them.

The presiding Judge instructed the jury, that it was not necessary to intitle the plaintiff to recover, that he should have proved his having given a valuable consideration for them ; unless it had appeared, that they had been lost by the real owner, or stolen, or otherwise forcibly, or fraudulently obtained from him; or, in short, that the plaintiff’s possession was not bona fide. That there was no strength in the objection, that the plaintiff had no interest in the notes, because they had been delivered to him for the use.of his grand-daughter. The delivery constituted him a trustee, and, therefore, legal owner ; and until be had executed his trust by delivering the notes to her, he had the right to bring an action upon them in his own name. If the jury, therefore, were satisfied, that William Heath, Sen’r, gave these notes to the plaintiff, in his life time, although for the use of his grand-daughter, the plaintiff was intitied to verdicts. And, although the jury should not be satisfied, that the gift was made by the testator in his life time, yet the executors had assented to the legacy to Adam Heath, by delivering the notes to him, and if he had voluntarily delivered them to the plaintiff, the latter was equally intitied to recover. His Honor was, however, of opinion, that a gift by William Heath, Sen’r, in his life time, was sufficiently proved, to authorize verdicts for the plaintiff on that ground.

The jury found general verdicts for the plaintiff in both cases. The defendant renewed in the Court of Appeals, his motion for a nonsuit : and failing that motion, moved for a new trial, on the grounds, that Lucy Heath was an incompetent witness, and ought to have been excluded ; and that the presiding Judge had mistaken the law in his charge to the jury.