23 Pa. 167 | Pa. | 1854
The opinion of the Court was delivered by
The errors complained of relate to the admission of John Benjamin as a witness for the plaintiff below, and to the ruling of the court against the matters of defence relied on by the plaintiff in error.
It does not appear that John Benjamin was ever a party to the contract with the defendant on which the action was brought. That contract was one in which Samuel and John Beaver were the only parties. The witness had acquired from John Beaver an interest in it which he had re-sold to the man from whom he acquired it, as early as December, 1847, under an agreement by which he was to be cleared from the same. He stated on his examination that he had no interest. As the witness was not an original party to the contract, as the plaintiff did not derive title through him, and as he had no interest in the result, we do not perceive any error in admitting him as a witness. As his testimony related exclusively to the “apple speculation,” if the paper-book informed us that that cause of action, and the issue found in regard to it, was separated from the other, we would not disturb it for errors existing in reference to the other parts of the case. But we are left in the dark on this point, and it must therefore fall, in the general result.
In Bosler’s Administrators v. Exchange Bank, 4 Barr 32, it was held that a debt not due at the death of the plaintiff’s intestate, could not be set off; and in Light v. Leininger, 8 Barr 403, it was decided that if the debt was due at the death of the deep-dent, it might be set off, although the estate was insolvent. It was there affirmed as a principle that “ mutual demands mutually pay and satisfy each other, if the defendant chooses to malee defence.” But these cases do not touch the question presented on this record. The case before us depends upon the equity of a surety. As between principal and surety, Courts of Equity always
Judgment reversed and venire de novo awarded.