The Columbian. [volume] (Bloomsburg, Pa.) 1866-1910, 1895-05-03


otherwise disqualified may become
fully competent for either party by a
release or extlnguishment in good
faith of his interest upon which good
faith the trial judge shall decide as a
preliminary question. Act of May
25rd 1887, p. l.. SIS. 1t is suggest
ed that she is not bound by the re
lease. but we cannot agree with the
counsel in this position. We discover
no evidence to warrant it, nor is it the
case Of person selling his title and
his testimony with it. The right OF
the estate of Mary G. Vanderslice in
and under the paper in question does
not depend in any degree upon the
assignment or release, but is entirely
complete without it. The case comes
within the rule which existed prior to
the statute that where an action is
brought by an executor or administra-
tor on behalf of an estate, legatee
or distributee who has been absolute
ly paid his legacy or has released or
assigned all interest in the verdict, is
competent. Miller on Competency
Of Witnesses, So; Heft VS.. Ogle, 177
Pa, 244, and cases cited. After this
rule was argued the defendants
counsel, upon notice to the plaintiffs
counsel, submitted to me copy Of
the testimony, or portion thereof,
Of Agnes Vanderslice given before
the auditor which it is claimed is in
consistent in some particulars with
that given by her on the trial. Clearly
we cannot consider this upon the
ground that it is after discovered.
Whether it be offered to prove fact
or to impeach the witness by proof
of contradictory statements, it was
available at the trial and if offered
then it might possibly have been ex
planned. To say nothing of the rights
of the parties, 1t was due to the witness
that she should have an opportunity
to explain. CIR. Ev., Sec. 462.
THIRD and SEVENTH.
The purpose Of the offer of the will
of Mary Snyder was to show her dis
position towards Daniel Snyder and
his creditors. We think the court
went to the extreme limit in admitting
testimony as to the acts and declara.
tions of Mary Snyder for this purpose,
but the testimony admitted related
to acts and declarations so near the
time when the paper in question bears
date as to tend to show the improbable
ity of her having executed it, but the
will was signed two years afterwards
and was too remote from the transac
ton to throw any light upon the ques
ton. Still more clear is it that th'
account of the executor of Mar,
Snyder was not competent evidenc,
/ for the purpose for which it was offer
ed. The value of her estate in 1877
might possibly have been pertinen
fact, but its value in 1890 clearly wa
not and the account filed in 1So
would not even tend to show its valu
in 1877.
EIGHTH.
We do not think that there can
any doubt that Mr.. Funk was an ir
competent witness as to the fac
: referred to in the defendants offer 0
5 page 81 of the notes Of testimony I
, which we assume this reason relate
: The offer includes evidence of convers
S tions had prior to the death of MAJ
i G.. Vanderslice not in the presence
= any person adverse in interest to Ma
|. Snyder or of any one who was calle
h to testify in behalf of the estate
? Mary G.. Vanderslice, and as legatt
o under the will of Mary Snyder Il
/. witness was interested adversely
e the right represented by the plainti
n The fact that these conversations we
r. had in presence of witnesses who we
i. called in behalf of the defenda
e would not make the witness compete
4. under the act of 1891. Toths esta,
IS $50 Pa, a6I, Cake VS.. Cake, I6a P
J. 584, Krumrine VS.. Grenoble, los T
e 9S, Thomas VS.. Miller, I65 Pa, Ic
ii The remaining reasons allege m
ly conduct an the part of one of t
0 jurors, (D in forming and expressi
% an unalterable opinion on the mer
re before the close Of the case; (z)
at permitting other persons, not juro
te to converse with him concerning t
Of merits of the case in such language
ID TO prejudice him against the cause
We the defendant. and then accepting
II. invitation to drink at their expen
IN 1t is not alleged that the parties to t
n. case were in any way concerned
u the matter, but we do not think
ty can be questioned that if the sta
Vi ments of fact contained in the a
he davits upon which the rule was gra
d ed be true there was such miscond
in on the part OF the Juror as would
on quire the granting Of new trial. I
he difficulty is not in the suficiency
m the facts alleged, but in the pre-