Townshend v. Townshend , 6 Md. 295 ( 1854 )

Mason, J.,

delivered the opinion of this court.

We have nothing to do with the general merits of this con* troversy. We are confined, by the record, to the consideration of hut two isolated questions, presented by the only two exceptions in the Case.

The competency of Robinson as a legal witness in this cause, is the question raised on the first exception. This witness is objected to upon the ground of interest. The appellees insist upon his competency, upon three several grounds, any one of which, if tenable, would constitute the party a legal witness. It is insisted, in the first place, that the alleged interest of the witness is not of such a character as to disqualify him; secondly, that having sworn the witness upon his voir dire, the appellants are concluded by his disclaimer of all interest in the suit; and thirdly', that whatever interest the witness may have had in the result of the suit, has been fully discharged by the release executed to him by the administrator.

Without exptessing any opinion upon tire last two positions, we think the first was well taken. We cannot, discover that this witness had any interest in the result of this suit sufficient to incapacitate him to give evidence. Whatever may be the ultimate result of the proceedings upon the several issues involved in this case, the liability of the witness could not thereby be materially diminished or enlarged. The interest is supposed to arise in this way: if the will should be vacated, George Townshend, the principal in the note, asoné of the heirs and distributees of John Townshend, the testator, would thereby have his estate enhanced, and thus increase his ability to pay the debt for which the witness was surety, and lessening, in the same proportion, the chances of loss to the latter. Such an interest, upon general principles, is too remote and contingent to disqualify a witness. To have such an effect, the interest should be direct and positive.

The competency of the witness being recognised, we are next to consider whether his testimony, when given, was legal and competent, which is the question raised by the second exception.

The appellants objected to the admissibility of this testimony; first, because it could have no legitimate bearing upon (he issues in the case; and secondly, because it was on its face, false, and calculated to mislead the jury.

If this case rested alone upon the testimony of this witness, its admissibility might well be questioned on the ground of irrelevancy or of its legal insufficiency to establish the issues. But such is not the fact. The testimony was rebutting evidence, and besides, constituted but one of many items of the caveators’ proof. We are not prepared to say, that there is no relevancy or applicability of this testimony to the issues in the cause, when taken in connection with the other proof offered, and we therefore would not feel authorised to withhold it from the jury.

The second objection to the admissibility of this testimony, is equally untenable. This objection goes to the credibility of the witness, and not to the legality of the evidence, and is therefore a question for the jury and not the court.

Judgment affirmed.