Townshend v. Townshend

9 Gill 506 | Md. | 1851

Martin, J.

dissented, and delivered the following opinion:

In this case I dissent from that part of the opinion of a majority of the court, in which it is held that the declarations of Walter B. C. Worthington, were admissible in evidence. The true doctrine on the question of the admissibility of these declarations, is to be found, I think, in the opinion of the court of exchequer, in the case of Stobart vs. Dryden, 1 Mees. and Welsby, 614.

Frick, J.,

delivered the opinion of this court.

In this case we think the court properly overruled the motion to remand it to Prince George's county court; and the majority of the court are of opinion that the declarations of Walter B. C. Worthington, were properly admissible in evidence, and that consequently the court erred in excluding them from the jury. The question is not clearly settled by the books, but the weight of authority, they think, is decidedly in favor of this decision. The only case referred to by counsel, or that we can find which would seem to impeach it, is the case of Stobart vs. Dryden, 1 Mees. and Welsby, 614, where it was held (hat the defendant could not give evidence of the declararation of a deceased witness, tending to show that he had forged or fraudulently altered the deed. The general rule in exclusion of hearsay testimony, is not to be questioned; but in this very case here referred to, the inquiry was, whether it was or not, one of the exceptions to the rule, always recognized upon the ground of necessity or convenience? Now in the’ case before us, where the attestation of the witness, (now dead,) imparts all that is requisite to make the will good and valid, so far as his signature can go, not only convenience and necessity, but justice would seem to require that his declarations, (in this case almost simultaneous with the act,) should be admitted to impeach these presumptions of law. And in looking upon this as an exception to the general rule, we think we are supported by the cases of Wright and Littler, 3 Burr., 1255. Doe vs. Ridgeway, 4 Burn. and Ald., 55. Walker vs. Stephenson, 3 Esp., 284, recognized by Lord Ellenborough, in 6 East., 195. 5 Bing., 435. 2 Bailey S. C. Rep., 128. 3 Yeates, 506. 2. Hill. Rep., 609. 2 Paige, 147. 1 Harrington, 109, and 9 Barr. Penn. Rep., 151, Harden vs. Hays.

For the purposes of this opinion, the court think that Carroll is to be considered a competent witness to prove such declarations, the court below having so ruled, and there being no appeal by the appellees from their decision. The judgment is therefore reversed, and procedendo awarded.

JUDGMENT REVERSED, AND PROCEDENDO AWARDED.