delivered the opinion of this court:
The appellee sued the appellant, to recover the value of a quantity of coal, which the latter had taken on board his canal boat, to carry from Cumberland to Alexandria. The boat reached a point on the canal beyond which it could not proceed, and the coal never did reach its port of destination, or, at least, was not delivered there to the plaintiff. The case admits that it “passed into the possession of the defendant, and was by him used or disposed of for his own benefit.”
The plaintiff having proved and rested its case, the defendant offered to show the circumstances under which he had *185converted the shipment to his own use, by a witness, who, “on taking the stand,” was asked by the plaintiff the following question, “to test his competency,” to wit: “whether there was an account between the witness and defendant, settled or unsettled'?” to which he replied, “that there was; and that, in that account, between witness and defendant; the witness has taken to himself credit against the defendant for the value of the very coal for which the plaintiff is seeking to recover in this action.” At this point of the trial the plaintiff objected to the competency of the witness, which objection the court sustained, and no examination of the witness was had, to show a particular relation to the parties or the coal, authorizing him to make any disposition of it. It is conceded by the counsel on both sides, that, what the defendant offered to prove, as stated in the exception, is not to be considered a concession in conformity with what was ruled in the case of Farmers Bank vs. Duvall, 7 G. & J., 90; that defects in evidence cannot be aided by an averment of the purpose for which it is offered; being the mere statement of the party and proving nothing. If, however, the objection had been taken to the admissibility of the evidence, and not to the competency of the witness; it must have been assumed that the witness would have proved the facts proposed to be given in evidence. The witness’s competency here, on the ground of interest in defeating the plaintiff’s claim, is to be determined by the question and answer set out in the exception.
If the record showed that the defendant claimed the coal under the witness, as vendor, in virtue of the sale which the appellee’s counsel seeks to imply from his answer, there would be reason for excluding him, as interested, upon the principle of the cases of Giese vs. Thomas, 7 H. & J., 458. Mockbee vs. Gardner, 2 H. & J., 176. Osgood vs. Lewis, Ibid., 520. But this does not appear. All that we know is, that while this coal of the plaintiff was in charge of the defendant, as their carrier to market, this witness, without authority from any person, as far as now appears, undertook to credit himself, as against the defendant, for its value on an unsettled account between them. It is not shown that these parties had any set*186tlement of their accounts, or that there was any understanding" or agreement between them, that the witness should receive this credit, and the defendant be charged with the same amount, foi‘ so much coal received by him from the witness. One person cannot make another his debtor without his consent; and such assent cannot be implied from the answer of the witness, without the further inference, that the defendant having received the coal under a contract to deliver it at Alexandria, afterwards, in violation of his duty, and in denial of the plaintiff’s rights, recognised the title to be in the witness, and dealt with him in reference to it, on the hypothesis that he was the owner. Corner vs. Pendleton, 8 Md. Rep., 337. If Heskett were to sue the witness on the account between them, we do hot think that the claim could be defeated, to the extent of the value of the coal, upon the evidence contained in this record, if proved in the case supposed. It certainly could not be done except upon the ground, that the relation of vendor and vendee might be implied from the use of the coal by the defendant, and the credit taken to himself by the witness. But if, in such a case, the inference were proper, it must be remembered that courts in deciding questions like the one before us, are required to proceed upon something certain and positive, not resting in mere conjecture or speculation; and that circumstances from which the interest imputed to the witness is a probable inference, will not be sufficient to exclude him.. See the cases cited in Melvin vs. Melvin, 6 Md., 541. For these reasons we are of opinion that there was error in the ruling of the court below, and that the judgment must be reversed.-
Judgment reversed and procedendo awarded.