Wade v. Lynch ex rel. Grove

21 Md. 534, 1864 Md. LEXIS 133

• Court: Court of Appeals of Maryland
• Decided: June 1, 1864
• Status: Published

Opinion

Goldsborough, J.,

delivered the opinion of this Court:

The appellee, Lynch, instituted this s-uit on the 14th day of February 1859, in the Circuit Court for Washington County, against the appellant, upon a contract for the sale of a canal boat.

On the 26th clay of September following, Lynch made application for the benefit of the insolvent laws. George W. Grove, the appellee, was appointed Lynch’s trustee, and qualified as such. On the 4th day of December 1860, Lynch obtained Ms final discharge. At March term 1860, this suit was entered for the use of Grove, the trustee. On the 14th of December I860, the case was tried, when Grove the cestui'que use, offered Lynch as a witness to prove the cause of action. Besides offering Lynch’s insolvent papers, Grove offered in evidence a release executed by Lynclr to him, and accepted by him. By this release Lynch divested himself of all interest in the cause.

Objection was made by the appellant to the competency of Lynch to testify, he being a party plaintiff on the record. The Court overruled the objection, and this decision constitutes the only question for us to determine. We think the objection was well taken. Whatever might have been the effect of the release to Gnoveas between him and Lynch, it could not affect the rights of the appellant; he was no party to it, and should not be concluded by it.

The case of Selby & others, vs. Clayton, 7 Gill, 240, presents in all its material aspects so close an analogy to the case before us, that we see nothing to justify us in modifying the force of that decision. This is in fact a stronger case than that, there Selby was a joint plaintiff withErrickson, who was equally interested in the object of the suit, and equally bound for costs in the event of a judgment for the defendant.

(Decided June 1st, 1864.)

We shall therefore, in disposing of this case, adhere to the rule which declares the plaintiff on the record incompetent to testify for ■ his cestui que use, especially as we are sustained by the above decision.

See, also, the other authorities cited by the appellant.

Judgment reversed, and procedendo awarded.