Opinion
11-22-1811
Temple's Executor v. Ellett's Executrix
In an action of assumpsit in King William county court, on behalf of Robert Temple, executor of Benjamin Temple, against Sarah Ellett, executrix of William Ellett, issue was joined on the plea of " non assumpsit by her testator; " and, at the trial of the cause, the defendant introduced as a witness, John P. Ellett, " one of the said testator's sons, to whom he by his last will had devised a legacy of a negro named Granville, and no other part of his estate; whereupon the counsel for the plaintiff moved the court to reject his testimony, upon the ground of his being interested in the cause; which the court refused to do, and delivered an opinion that the said witness was competent; and, before the jury retired, three of the magistrates, who gave the said opinion, said, they gave that opinion because they supposed that the said William Ellett's residuary estate was fully sufficient to pay the debts owing from his estate; " to which opinion a bill of exceptions was tendered, & c.
The jury found a verdict for the plaintiff, for only 51. 7s. 6d. damages; whereupon it was considered by the court that he be nonsuited; which judgment being affirmed by the district court, he appealed to this court.
See 1 Rev. Code. p. 90. c. 67, s. 37, 38.
OPINION
Friday, November 22, the appellee appeared by counsel, and the appellant, being solemnly called, came not. The court took the record without argument; and the following opinion was pronounced: " There is error in this, that the court admitted the witness, mentioned in the bill of exceptions, to give evidence to the jury; he being, in the opinion of this court, an incompetent witness." Both judgments, therefore, were reversed; and the cause was remanded, for a new trial to be had in the county court; " in which the witness aforesaid is not to be admitted to give evidence to the jury."