6 Whart. 430 | Pa. | 1841
The opinion of the court was delivered by
As the parties to a suit are excluded from being witnesses, on account of their interest, declarations made by them are evidence, and in some instances, of the strongest kind. Of the latter description, :the case before us furnishes a striking example. The suit is brought by the payee on two promissory notes, against the maker. The defendant pleads non-assumpsit, and on the trial requires proof of the execution of the notes; and the plaintiff not having a witness at hand competent to prove the execution, offers in evidence for that purpose the affidavit of defence filed under the act of the 28th of March, 1835, in which the defendant expressly states that he gave the notes sued upon, of which copies had been filed in the cause. If the same admission had been made, either verbally or in writing, it would have gone to the jury as competent proof, without objection; for the admissions of a party to the suit against his interest, are always received in favour of the other side. Nor is it material when or where the admission is made, nor in what form or suit, or whether before or after the commencement -of the action, before arrest or after, or whether written or by parol. The only inquiry on the question of competency is, whether it is .the confession or admission of the party really interested in the suit 1 On this principle, an answer in chancery being an admission of a party, the objection of res inter alios acta does not apply to it, as it does to other legal proceedings; and therefore it may be given in evidence
The second section of the act of 1835, referred to, authorises the court to enter judgment by default at a certain time therein prescribed, notwithstanding an appearance by attorney, unless the defendant shall previously have filed an affidavit of .defence, stating therein the nature and character of the same. Whether the affidavit be filed depends upon the defendant himself; but admitting it to be in one sense compulsory, it is certainly not more so than an -answer in chancery, which may, -as we have seen, be used as evidence against the defendant, in an action brought by a plaintiff who was not a party -to the proceedings in equity.
And as to the second objection. It is true, that where there are several counts in the same declaration, or several distinct pleas, an allegation in one count or plea, cannot be insisted on by an adversary as an admission of a fact for a purpose distinct from the proof of that count, or of the issue upon the plea; for every issue is to be distinctly tried: as for example, in trespass a plea of justification does not supersede the necessity of proving the trespass, where the general issue was pleaded. So the plaintiff cannot use one plea of the defendant for the purpose of proving a fact, which the defendant denies in another plea; nor can he use a notice of set-off as evidence, of the debt, on the issue of non-assumpsit; and this is all that is decided in Harrington v. Morris, (5 Taunt. 228,) and in Miller v. Johnson, (2 Esp. 602,) so much relied on in the argument. The reason of the latter decision is, that the particular of set-off is consi
Judgment affirmed.