3 Rawle 407 | Pa. | 1832
The opinion of the court was delivered by
The only question to be decided in this case is, whether one of two in an action of assumpsit brought by as indorsees of a promissory note, after having assigned upon the trial of the cause all his interest and right therein to the other, who had paid into court all the costs of the suit, can be examined as a witness for the plaintiff to whom he has assigned..
In Pennsylvania, however, where we have no courts of equity, where for this reason our courts of law in making their decisions have been governed not merely by the stern and inflexible rules of law, but by those of equity and law combined, it has been decided that a trustee having.no interest in the cause, although a party to it on the record, may be a witness. Drum v. Less. of Simpson, 6 Binn. 481.
The circumstance of the person offered as a witness being a party to the suit on the. record is prima facie evidence of his having an interest in it; and it is for that reason, and that alone, that in this state he cannot be.received as a witness, and not upon a mere principle of policy, because he is a party on record to the suit. If then it be shown, as no doubt it may in many cases when the fact is so, the evidence of interest not being conclusive but presumptive only, that he has no interest in the cause or the result of it, it would seem to follow as a natural consequence that he' may be a competent witness. That he once had apt interest is not material, although it may have continued down to the time of the trial, for his competency depends upon the fact of his being.interested or not interested in the suit or the event of it, at the time that he is offered as a witness. If free from all interest whatsoever he is competent. This is proved by every day’s experience and practice in courts. .A person for example not a party on the record of the suit, but interested in it, is offered as •a witness to support that side of the issue which goes to sustain his own interest and is therefore objected to by the opposite party; and he is made an admissible witness in the presence of the court after the objection taken, by the execution and delivery or tender of a release; for the tender of such an instrument is sufficient when the party for whose benefit it is made refuses to accept of it. Fowler v. Welford, 1 Doug. 139. Since then the competency is made to depend upon the witness’s being entirely free from interest at the time of his giving evidence, it can make no possible difference that he is a party upon the record.
Upon this principle it was that in Patton’s admrs. v. Ash, 7 Serg. & Rawle 116, James Ash, one of the plaintiffs on record,.and one of the administrators of Patton, was admitted as a witness on behalf of the plaintiffs after executing at the time of trial before his examination a release to the heirs, of all claim to compensation for his services, and having paid into the hands of the prothonotary a sum of money sufficient to pay all the costs, and to be so applied let the suit terminate as it might. . See also the cases of Kerns v. Soxman, 16 Serg. & Rawle, 315, and M‘Ilroy v. M‘Ilroy, 1 Rawle, 433-4, and the cases there cited, where in the first case a devisee in a will was held to be
In the case of Lowry v. Davis and Hanson, decided by this court at its last session in Pittsburgh, which was almost in every respect like the present, it was held that Davis, one of the plaintiffs on the record in the court below, after making an assignment of all his interest in the suit to the other plaintiff, who paid all the costs into court, all of which was done after the jury were sworn, in open court, was a competent witness for the plaintiffs in the court below, to prove that Lowry, the defendant in that court, before the commencement of the action, had accepted and promised payment of the draught to the plaintiffs, to recover the amount of which draught the suit was brought.
The learned judge in the court below before whom this cause was tried, seems to have been opposed to the admission of the witness upon the ground of policy, as operating a surprise upon the adverse party, and opening a door to perjury. As to the principle of policy, apart from interest, I consider it as excluded from our consideration by a force of authority in this state that cannot now be resisted or overturned. But he seems in rejecting the witness to have relied mainly upon the authority of an expression used by the late Chief Justice in delivering his opinion in this court in the case of Steele v. The Phœnix Ins. Co. 3 Binn. 314, who says, “ where he (the plaintiff) assigns a particular thing to an individual (especially pending the action) and then comes forward to make out the case by his own testimony, he should be watched narrowly. In all such cases the court admit or reject the testimony according to their conviction of the assignment being a bona fide transaction or not.” After reciting this expression of the late Chief Justice, he concludes by saying, “I am not convinced that this transaction is bona fide, but believe it to be colorable, and that the recovery, if it takes place, will enure to the benefit of both the plaintiffs. Exercising therefore the right I possess according to the opinion of the Supreme Court, I reject Thomas Hart as a witness in this case.”
This expression of the late Chief Justice must receive a reasonable construction, and such as will comport with the principles which in practice have been applied to settle the question in other cases, where witnesses have been objected to on account of interest. For instance, if a person, not a party on the record, be called as a witness and objected to by the adverse party on the score of interest,
This principle, to which the Chief Justice had reference in the expression already noticed, is set forth more fully, as well as with more precision, by Justice Yeates in the latter part of his opinion delivered in the same case, pages 316-17, where he says “ there can be no doubt that where a voluntary assignment was made to appear clearly, to the court to be collusive, they would interpose and reject the witness; and where there occurred any difficulty as to the fact, they would instruct the jury to pay no regard to the testimony of the witness, if they were satisfied that the assignment was merely colourable with an intention to defraud creditors.” Here Justice Yeates lays it down in so many words, that unless the assignment appears clearly to be collusive, the court is not to decide, but to refer it to the jury. It must appear clearly ; from what must it clearly appear to be collusive to the court ? Most certainly from the testimony, but if there be no testimony showing it to be so, as in the present case, and the court below is to be at liberty to say that they are not satisfied but what there is still some collusion and unfairness in the transaction, and therefore they will reject the witness, it would be deciding the facts and the law both combined, and putting their decision beyond the revision and control of this court. It would, in short, be a direct violation of that rule which is the great distinguishing feature of the common law, Ad quesiionem juris respondent judices, ad questionem facti respondent juratores. Hence I take it that all questions of fact which grow out of the trial of a cause by a jury, and appertain to its merits, in respect to which there is any testimony given, but not showing clearly how the facts are, or if the testimony be in the slightest degree contradictory, they must be referred to the jury to be decided by them. Under this view of the law, I think the court below erred in rejecting the party offered as a witness. The fact of his being