Fernsler v. Carlin

Tilghman C. J. (After stating the case.) Whether a person who in truth is not interested, but thinks himself to be so-, be a competent witness, is a point on which there has been a diversity of opinion. It is unnecessary to decide that question now, because the case before us, is not that of a man who thinks himself interested. Supposing, (and it is only a supposition,) that the competency of a witness should depend upon his own thoughts, respecting his interest, we must look to his thoughts at the time when he is offered as a witness. He might have thought himself interested some time before, but changed his mind before he was offered; and it is only his opinion, at the time of taking the oath, which can have any influence on his inclination. So, where actual interest is objected, it must be an interestat the time of swearing. If the interest is removed by a release, the competency of the witness is instantaneously restored. Now, there was no evidence hex-e, of the thoughts of the witness, but at the distance of two years from the time he was offered. Besides, the interest, either actual, or supposed, which renders a witness incompetent, must be an absolute, positive interests but there was no evidence in this case, of the witness’s having ever supposed he had an absolute interest; he supposed, that whatever might be recovered in this action, would be deducted from his wife’s estate. But what estate ? not an estate vested in her; but one that was .expected to be given to her by her father. It is just the case of a child, who expects part of his father’s fortune, and knows that his share will probably be lessened, in consequence of a recovery against his father. Yet, such child is a good witness, be cause the rule is, that he is competent, unless positively interested in the event of the suit; he may be under a strong ■bias, though not positively interested; in such case he is competent, but his credibility is left to the jury. I am, therefore of opinion, that WilliamNaglee, was a com [133] petent witness. The judgment must be reversed, and a venire facias de novo awarded. Gibson J. concurred. Duncan J. gave no opinion, not having heard the argument. Judgment reversed, and a venire facias de novo awarded.