7 Watts 195 | Pa. | 1838
The opinion of the Court was delivered by
The two first errors and the last, that is, the thirteenth, will be considered in immediate connexion with each other, as two of them present nearly the same question, and each contains
The propositions relied on by the counsel for the plaintiff in error in regard to these errors are: First, That no action can be sustained upon the recognizance for the recovery of the arrearages of interest which became payable to the widow, under the decree of the orphan’s court, upon one-third of the valuation money of the real estate, decreed to the plaintiff in error, John Good ; because a recognizance to secure the payment thereof was not only unauthorised by the act of the 23d of March 1764 (3 Smithes Laws 159, in notes), in virtue and pursuance whereof the orphan’s court decreed the estate to Good, the conusor, but because the maintenance of an action thereon would be contrary to the spirit and prohibition of the subsequent acts of assembly, and especially of the act of the 21st of March 1806, which enacts that “ in all cases, where a remedy is provided, or duty enjoined, or any thing directed to be done by any act or acts of assembly of this commonwealth, the directions of said acts shall be strictly pursued, and no penalty shall be inflicted, or any thing done agreeably to the provisions of the common law in such cases, further than shall be necessary for carrying such act or acts into effect.” Purd. Dig. (1837) 51.
Second, That a former recovery and judgment having been obtained upon the same recognizance, in an action of debt commenced and prosecuted by Barbara Butts, one of the children of the intestate, though for her own use exclusively, no subsequent action of debt can be maintained thereon for the use of any one.
Third, Admitting that this action might have been sustained by Barbara Good for her use in her lifetime, yet she being now dead, it cannot be maintained by Joseph Good for his use as her assignee.
We, however, are of opinion, that these propositions are all untenable ; and that the errors based upon them, therefore, cannot be supported.
As to the first, the words of the act of 1764, fourth section, relative thereto, are:, “that where any estate in lands, &c. cannot be divided amongst the children, or widow and children of the intestate, without prejudice to or spoiling the whole, the same being so represented and made appear to the orphan’s court of the county where the lands, &c. shall be, then the said court may, but not otherwise, order the whole to the eldest son, if he shall accept it, or any of the other sons successively, upon the eldest son’s refusal; or if there be no son, or all the sons refuse, then to the eldest daughter of the said intestate, and on her refusal, to any of the other daughters successively ; he or they, or some friend for him, her or them, paying to the other children of the intestate their equal and proportionable parts of the true value of such lands, &c., as upon a just appraisement thereof, pursuant to the act for settling intestate’s estates aforesaid, is directed, or giving good security for the payment thereof, in some reasonable time, as the said orphan’s court shall limit and appoint;
Now, although it is true that the taking of a recognizance, in order to secure the payment of any portion of the valuation money of the real estate of the intestate, is not prescribed by the act, yet it is equally true that it is not expressly prohibited ; nor is there any thing Contained therein which militates in the least against the court’s requiring such security to be given. As to two-thirds of the valuation money, it is expressly directed by the act that it shall be either paid in hand or secured to be paid within some reasonable time before the court shall adjudge the land, &c. to the party wishing and otherwise entitled to take it. But because nothing is said in the act of any security being given for the payment of the principal of the remaining third at the" widow’s death, or the interest thereon, annually to her during her life, it is urged that the legislature intended that no security creating a personal liability for the payment of either should be given by the party or required by the court. It is certainly difficult, if not impossible, to discover any good reason why the legislature should have designed to exclude all personal liability in such case that would not have made it equally just and expedient to have done so in regard to the prior two-thirds. As to these two-thirds, nothing is said about their remaining a charge or lien upon the land, where the court shall have granted a reasonable time for the payment thereof; and yet I cannot believe that, for this reason, it would
The recognizance being good, it must then be made available; which can only be effected by giving the party injured by a breach thereof, a right to sue and maintain his action upon it. And the act of 1806, referred to above, cannot be made to interfere with such righ t.
The second proposition, that the former recovery is a bar to the action, will now be noticed. In doing so it will be proper first to ascertain the nature of a recognizance and the degree of verity which the law attaches to it as evidence; and why it is that a former recovery, by judgment, upon any cause of action, forms a bar to a second action’s being maintained precisely upon the same cause.
A recognizance is defined to be an obligation of record, which a man enters into before some court of record, or magistrate duty authorised, with condition to do some particular act; as to appear at the assizes, to keep the peace, to pay a debt, or the like. 2 Bl. Comm. 341. The orphan’s court, before which the recognizance was taken, here being made a court of record by the act of 1713, the
Then as to the third proposition, we consider it quite untenable also. The action, it must be observed, is not in the name of Joseph Good ; nor could it be sustained in either that of Barbara Good, were she living, or that of Joseph Good, as her assignee, because she is not named as the conusee in the recognizance ; and it is only in the name of the conusee that an action, such as the present, can be supported. Barbara Good was merely one of the persons for whose benefit the recognizance was taken by the orphan’s court in the official name of the president judge thereof. Hence the action has been very properly brought in that name for the use of Joseph Good. The action being entered upon the record for his use merely indicates that it is brought by him; that he claims to recover the money therein demanded, for his own use; and that, if he fails in the action, he is willing to pay and agrees t.o be be held responsible for the costs. The breaches, set forth in the declaration, are the non payment of the interest to the widow as it became due and payable annually, according to the condition of the recognizance; and that he the said Joseph had become entitled, in equity, to recover it, by virtue of an assignment thereof, made to him by the widow in her lifetime, for a valuable consideration. That the assignment, if fairly obtained, gave him a right, in equity at least, to claim and to receive this interest, cannot be questioned; which was sufficient to warrant him in bringing this action and having it entered for his use.
The third error, being the next that we come to, is the bill of exception to the opinion of the court below in admitting the deposition of Barbara Good. The objection to the admission of it is, that it was not taken under a rule of court in this cause; nor yet, in any other cause, wherein the same matter was in dispute between the same
The remaining errors, with the exception of the seventh, ninth, tenth and eleventh bills of exception to evidence, were very properly given up, as not tenable, by the counsel for the plaintiff in error. But since we have decided that the deposition of Barbara Good ought not to have been received in evidence, the questions involved in the seventh, ninth and eleventh bills of exception cannot arise again on a subsequent triabof the cause, and therefore need not be passed on here.
Then as to the tenth bill of exception, which was taken to the opinion of the court, in permitting the testimony of Barbara Butts, as given by her on the trial of 1835, to be read in evidence, in order to corroborate and confirm her evidence as given theij| on the trial going on, we are inclined to think that under the special circumstances of the case the court below was right in admitting it. The counsel for the plaintiff in error had previously, for the avowed purpose of discrediting the evidence of Barbara Butts, been permitted to prove, by Frederick Pfeifer, the declarations of Joseph Good, the plaintiff in error, made by him in February 1837, that he intended to give to the rest (meaning his brothers and sisters, of whom Barbara Butts was one) all that he should recover beyond what was justly coming to himself. And though the better opinion seems to be, that confirmatory evidence, such as was given here, is not admissible generally, merely because the credit of the witness is impeached, by showing his general character for truth to be bad, or that he has given a different account of the matter at another time, yet it seems to be admitted by all, that special circumstances may render it admissible; as for instance, to contradict evidence tending to show that the account of the witness was a fabrication of late date induced by some occurrence at the time, when consequently it becomes material to show that the same account had been given before its ultimate effect and operation, arising from the change of circumstances, could be foreseen ; 1 Stark. Ev. 148, 149; Craig v. Craig, 5 Rawle 97, 98; so here we think that it was not improper to show that Barbara Butts had given the same account of the matter in 1835, two years before Joseph Good declared his intention of dividing what he might recover with the witness, that she gave on the trial then, after he had declared such intention. We think it was material, because it tended in some degree perhaps to show, that the declaration made by Joseph Good, to share, in a particular event, some part of his recovery with the witness, had not influenced her to give the account of the matter she did.
Judgment reversed, and a venire facias de novo awarded.