McNeil v. Conwell

Supreme Court of Pennsylvania

McNeil v. Conwell

7 Pa. 368, 1847 Pa. LEXIS 275

DecidedMarch 11, 1847

StatusPublished

This text of 7 Pa. 368 (McNeil v. Conwell) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McNeil v. Conwell, 7 Pa. 368, 1847 Pa. LEXIS 275 (Pa. 1847).

Pincite

Opinion

Burnside, J.

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The rule seems to be settled, that the test of the interest of a witness is, that he will either gain or lose by the direct legal operation and effect of the judgment; or the record will be legal evidence for or against him in some other action; 1 Lofft’s Gilbert, 120; 3 Term Rep. 27; 6 Bing. 394; 1 Greenl. Ev. sect. 390. The rule has been further explained by the Chief Justice of this court in Conrad v. Keyser, 5 Serg. 6 Rawle, 371, that where the verdict creates a new responsibility, which the law will recognise and make available in favour of or against the witness, or increase or decrease an existing one, the witness is generally incompetent. Hence, a tenant is incompetent to testify on the trial of an issue which may affect the estate which he occupies; Kuester v. Keck, 8 Watts & Serg. 16; or in ejectment one who has been in possession of the land after suit brought, or during the existence of the plaintiff’s title, is not a competent witness for the defendant; Strawbridge v. Cartledge, 7 Watts & Serg. 394. Applying these principles to the case before us, it is clear that the Common Pleas were right in rejecting McGuigan. He entered under a written license, and obtained possession (and there is nothing on the record from which we can infer that he is not still in possession) under the bishop. The license under which he obtained possession expired on the death of the bishop. The will which he is called to establish makes him sexton of the cemetery as he then held it, during his life. But it is contended that his release, executed for the consideration of one dollar, on this trial, to the supposed executor, of all his title and interest (if any he has) to any property or benefit arising to him, or that he is or may be entitled to under the will of the bishop, renders him competent, because they say he is equally liable to both parties. This is not so. He has received money for interments since the death of the bishop, which the heirs at law may call him to account for. He has a clear interest in making and establishing [371]*371this professed will, and defeating the heirs at law. There is no executor until he creates one by his evidence; his release is to his friend, Bernard McNeil, and does not render him competent to testify on this feigned issue.

Judgment affirmed.

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Burnside, J.

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The rule seems to be settled, that the test of the interest of a witness is, that he will either gain or lose by the direct legal operation and effect of the judgment; or the record will be legal evidence for or against him in some other action; 1 Lofft’s Gilbert, 120; 3 Term Rep. 27; 6 Bing. 394; 1 Greenl. Ev. sect. 390. The rule has been further explained by the Chief Justice of this court in Conrad v. Keyser, 5 Serg. 6 Rawle, 371, that where the verdict creates a new responsibility, which the law will recognise and make available in favour of or against the witness, or increase or decrease an existing one, the witness is generally incompetent. Hence, a tenant is incompetent to testify on the trial of an issue which may affect the estate which he occupies; Kuester v. Keck, 8 Watts & Serg. 16; or in ejectment one who has been in possession of the land after suit brought, or during the existence of the plaintiff’s title, is not a competent witness for the defendant; Strawbridge v. Cartledge, 7 Watts & Serg. 394. Applying these principles to the case before us, it is clear that the Common Pleas were right in rejecting McGuigan. He entered under a written license, and obtained possession (and there is nothing on the record from which we can infer that he is not still in possession) under the bishop. The license under which he obtained possession expired on the death of the bishop. The will which he is called to establish makes him sexton of the cemetery as he then held it, during his life. But it is contended that his release, executed for the consideration of one dollar, on this trial, to the supposed executor, of all his title and interest (if any he has) to any property or benefit arising to him, or that he is or may be entitled to under the will of the bishop, renders him competent, because they say he is equally liable to both parties. This is not so. He has received money for interments since the death of the bishop, which the heirs at law may call him to account for. He has a clear interest in making and establishing [371]*371this professed will, and defeating the heirs at law. There is no executor until he creates one by his evidence; his release is to his friend, Bernard McNeil, and does not render him competent to testify on this feigned issue.

Judgment affirmed.

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7 Pa. 368, 1847 Pa. LEXIS 275, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcneil-v-conwell-pa-1847.

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