21 Mo. 294 | Mo. | 1855
delivered the opinion of the court.
The errors relied on for reversing the judgment of the court below, by the appellant’s counsel, principally embrace the rulings of that court, in admitting and rejecting the testimony of witnesses, and in giving instructions, and in refusing instructions. Many and various rulings have been pointed out here, and alleged to be erroneous, which it is not thought necessary to notice particularly.
1. The court erred in rejecting the testimony of Mrs. Sarah E. Flint. She was a proper and competent witness, and the defendant had the undoubted right to have had her testimony before the jury. Her husband was no party to this suit, and whether she and her husband had been separated by a divorce or not, made no difference. In no way does it appear by this record how either Sarah E. Flint, or her husband, William P. Flint, were to be held as incompetent witnesses. The great burden of the testimony, on the part of the plaintiff, was what had been said in regard to the ownership of the negro woman in controversy by William P. Flint.
How the testimony of Mrs. Flint became excluded, or rather why she was declared incompetent, and refused admission to be sworn, this court is at a loss to ascertain. In the case of Scroggin & Smith v. Holland, (16 Mo. Rep. 419,) this court held that the widow was a competent witness for the interest of her deceased .husband’s estate. A witness, under our late code, is not incompetent by reason of interest in the event of the suit. Here we cannot see the interest involved in behalf of Mrs. Flint. There may be, however, such interest; but interest does not now render a witness incompetent. The defendant claims the negro as a special bailee. The testimony shows he claims her as having hired her from William P. Flint. (See the case of Stein v. Weidmarts Adm’r, in the 20th vol. Mo. Rep. p. 17.) In this last case, a widow' marries the administrator of the estate of her first husband, and is admitted as a competent witness in favor of her present husband, the admin-
2. The eighth instruction given for the plaintiff is not correct; it should not have been given. (See the case of Walker v. Borland, decided at this term of the court, and the opinion therein.)
The other instructions we say nothing about. The facts may assume a different face in the next trial, when the rejected witness is permitted to testify. I cannot close this opinion without remarking how exceedingly dark the whole case appears to us. In the next trial more light may appear; it is to be expected that it will, in order that justice may be done the parties. The judgment below must be reversed, and the cause remanded for further proceedings ;