delivered the opinion of this court.

We think the county court were correct in refusing the plaintiff’s first prayer, for the reasons assigned by them. The court erred, in the second exception, by excluding the evidence of Colonel Coombs from the jury. Notwithstanding his evidence might not have been competent when isolated and unexplained, yet, when followed up by Dunkinson’s evidence,' which was done before objection was made,' it was admissible. This court, in the case of Smith’s Exc’r' vs. Garner, (7 Gill, 1,) at December term, 184S, decided that Mrs. Miles’ declarations. *139made under similar circumstances, were competent testimony to go to the jury. The court correctly excluded Mrs. Miles as a witness in the third exception. She was a distributee of her father’s estate, who was plaintiff’s testator, and as such distributee, in the absence of a will, would be interested, the will not having been offered in evidence. For the same reason the court properly excluded Mrs. Miles as a witness under the 4th exception. She was a distributee, and by the release of her interest in the negro Matthias, did not release her entire interest in the estate of her father, and she remained, therefore, interested in the augmentation of his estate. There is no error in the ruling of the court in the 5th exception. The plaintiff, in this exception, with a view fiyifeteng jffijjtqpipetency of Mrs. Miles as a witness, offere^lnjglvmrace nmS will of Elwiley Smith, in connection wiéfi -^re release, offififtoinas H. Miles and Caroline E. Miles, loV wilftpffered in evidence in this case, the test£®a#§a.ve to hWJJwiJiter, Caroline E. Miles, the negro Malthas, in^jffitroversy in this case,) “for her sole and septn^gjjsp^mMlusive of any control of her husband, Thomas H. Miles, for and during the term of the natural life of her, the said Caroline E. Miles.” We forbear to enter upon the examination of the question of a feme covert’s jus disponendi of her estate, which she holds to her sole and separate use, where the instrument under which she holds, confers no such power in terms. Whether she is to bo considered, in courts of equity, as a feme sole, with power to dispose, or possessing only such powers os the instrument which confers her title bestows, is a question which, according to our view, in this case it is unnecessary to decide. This was a trial at law, and the question is, whether, at law, the wife alone, or the husband and wife conjointly, can divest .the wife’s interest in property to which she is entitled to her sole and separate use? We think they cannot; and the release and will did not, render Mrs. Miles a competent witness. The judgment of the court, was correct in the sixth exception, for the reasons assigned on the fifth. The court erred in the seventh exception, by excluding from the jury the evidence of Foxwell. The acts and *140declarations deposed to by him, were competent and admissible evidence as a part of the res gesta of the transaction. The court properly excluded the evidence in the eighth exception, for the reasons stated in our opinion on the fifth exception. The court erred in withholding from the jury the will offered in evidence by the plaintiff, in the ninth exception. The possession and right of property were involved in the issue, the declarations and acts of the plaintiff’s testator had been given in evidence to the jury by both parties, and the will was admissible as a declaration, and claim of possession, and property to th.e negro in dispute, made by the testator in his lifetime.

The court committed no error in overruling the plaintiff’s motion in arrest of judgment. The pleadings appear to be in conformity with the forms used and practised under in Maryland, from an early period in the history of the practice in this State. Vide 2 Har. Ent., 247. In this case the defendant pleaded three pleas. The first, non cepit. The second, property in the, defendant; and the third, property in a stranger. The plaintiff, in his replication, joined issue on the first plea, and traversed the defendant’s second and third pleas by affirming property in himself; upon which traverses issues were joined. Vide 6 H. & J., 469, Cullum vs. Bevans. The jury found their verdict for the defendant. The form in which it is set out in the record, is a clerical misprison, which, under the act of 1809, ch. 153, is amendable by this court.

The judgment of the county court is affirmed in the first, third, fourth, fifth, sixth and eighth exceptions, and reversed in the second, seventh and ninth exceptions, and procedendo awarded.

JUDGMENT REVERSED, AND

PROCEDENDO AWARDED.