Mitchell v. Clagett

9 Md. 42

• Court: Court of Appeals of Maryland
• Decided: June 15, 1856
• Status: Published

Opinion

Le Grand, C. J.,

delivered the opinion of this court.

At the trial of this cause the appellant objected to the competency of a witness offered on behalf of the appellee. The court sustained the objection; whereupon the witness executed a release of all his own and that of his wife’s interest in the estate of her mother. The court held this release to be sufficient to remove the disability, and the witness was examined. The appellant excepted to the ruling of the court in so far as it adjudged the sufficiency of the release. The question for our determination arises under this exception.

It appears from the record the suit was brought on a sealed note, alleged to have been that of one Notley Sweeney, the testator of the appellee, for $1000, dated the 22nd day of March 1852, payable to the appellant six months after date. The appellant gave evidence of the execution of the note, and also that Notley Sweeney died sometime in the year 1852, after having made his last will and testament; and further, that his wife Elizabeth renounced said will. It was also proven that she died before the institution of this suit. It was also shown that he died possessed of certain negroes, who were sold, but no order of the orphans court directing their sale was given in evidence. The witness objected to is the husband of a daughter of Mrs. Elizabeth Sweeney, the wife of Notley Sweeney. The ground of the objection is, that as his wife would be entitled to an interest in the estate of her mother, who was entitled to a portion of the negroes belonging to the estate of her husband, Notley Sweeney, it was incompetent to him to release the interest of his wife. We are of opinion this objection is not well taken. Although the only question presented by the exception is the sufficiency of the release, yet, if it appear the party was a competent witness, it matters not what is the form of the release, for none in such a case was required, and the party has no right to complain, for he has not sustained any injury.

We are of opinion the interest, if he had any, of the witness, was not shown to be of that certain and fixed character which, under the decisions of this court, is required to disqualify him. There is no evidence whatever to show the estate of Elizabeth Sweeney to be solvent. To disqualify the witness on the score of interest, that interest should not be speculative or conjectural, but should be shown to be direct and certain, otherwise it goes only to his credit before the jury. This question was fully considered in the case of Melvin vs. Melvin, 6 Md. Rep., 548, and the authorities were therein very thoroughly examined. See also Townshend vs. Townshend, 6 . An examination of the principles therein laid down would, under the facts presented by this record, allow of the competency of the witness Arnold, however much they might impair his credit before the jury. The whole tendency of the decisions, since the days of Lord Mansfield, has been, to remove objections to the competency of witnesses. In the case before us there is no sufficient basis for the objection to rest upon. It nowhere appears that Elizabeth Sweeney had an estate from which her daughter could derive anything, and, a fortiori, it is but pure conjecture to suppose the husband of that daughter could inherit anything from her. We think the witness competent, and whether or not the release was in proper form, in a case in which a wife had an interest in negroes, is a matter of no importance, for in this one the appellant suffered no injury from the ruling of the court, and we accordingly affirm the judgment.

Judgment affirmed.