6 Binn. 16 | Pa. | 1813
This action was brought by George -^a^ne the plaintiff below against John Heckert the original defendant below, who had been his guardian, for money received by the defendant for the use of the plaintiff during j^jg minority. The action was commenced in 1787, Heckert J t ... 7 died in 1799, and on his death his admixxistrators became parties to the suit. Three bills of exceptions were taken in thte course of the trial, .
. The plaintiff offered to prove by the oath of John Haine, that the said. Haine had paid to J. Heckert as guardian of Plaintiff the suxnof 150/. specie in the year 1773, ixi discharge of a bond in which the said John Haine and others were bound to the said J. Heckert as guardian of the plain^le evidence was objected to by the defendant, because there was a receipt indorsed on the bond to which there was a subscribing witness, who alone, as the defendant contenc^c(^ was competent to prove the payment. The bond had been delivered to the obligor axxd cancelled, and the court the evidence of tho said John Haine to prove the °f ^ mone75 and the cancelling of the bond» If
2. The counsel for the defendants offered Peter Heckert, one of the defendants, as a witness, he having released all his interest in the estate of his father John Heckert, deceased, and having offered to pay into Court all the costs of the suit in case he should be admitted as a witness. But the Court rejected him. I am not quite satisfied about this offer to pay the costs. To make him disinterested so far as respects costs, there should be a payment not only of all costs accrued at the time of payment, but also of all that might after-wards accrue in the cause; and it is not clearly expressed whether the offer extended so far. It is urged that the offer - to pay was sufficient, because there could be no occasion to pay until it was known whether he would be received as a witness. The usual practice is to make a release of interest in cases whpre a release is necessary, before the Court decide on the competency of the witness. But I do not think it necessary to determine, whether the offer to pay costs was sufficient, because on another ground I think the witness was inadmissible. He was one of the administrators of his father, and a defendant in the action; and as such the plaintiff had a right to judgment against him, in case he obtain.ed a verdict. One. of the issues joined was on the plea of plena administrcivit, and at the time the witness was offered, it was uncertain how the jury might find. If the verdict had been against the defendants, on that issue he might eventually have been rendered personally responsible, not only for the costs but the whole damages; for it might be that the assets of the intestate had not been administered according to law. In this state of uncertainty it could not clearly appear that the witness was disinterested, even if he had made an
3. The defendants then offered in evidence, a book which had been kept by John Heckert in his life time, containing an account of his receipts and disbursements as guardian of the plaintiff. This being rejected by the Court, the defendants offered in evidence an account rendered by themselves on oath, of the receipts and disbursements,&c. of their intestate as guardian of the plaintiff. This account was drawn up about the time of the trial or shortly before, and the oath was that “ to the. best of their knowledge and belief, it was a true account, &c.” They offered also to answer on oath any question touching the accountjjwhich the plaintiff might think fit to ask them} but this evidence was also rejected by the Court. Last of all, the defendants offered again the book of the intestate (which had been offered before,) together with their own account which had been offered before, supposing that by being connected they might mutually support each other; They were again rejected by the Court.
The three last pieces of evidence rest upon the same foundation, and will be best considered together. At common law there could be no pretence for offering the account kept by the intestate without oath, or the account of the defendants .themselves on their own oath, not exhibited to the Orphan’s Court and settled there, as it ought to have been. But the admissibility of this evidence depends on an act of assembly passed 21st of June 1781. The paper money which had been made a legal tender for debts, had at this time sunk so low in value that it was found necessary to repeal the acts by which it had been made a tender. They were accordingly repealed by the second section of this act. But the • unqualified repeal of the tender laws might have thrown great hardships on pex-sons who had contracted debts payable ixx the common currency of the country, and on all who as agents, attornies, executors, administrators, or guardians, had been obliged to receive the circulating paper in trust for their principals, &c. To protect such persons it was enacted by the twelfth section of the same act, that where any sheriff, agent, factor, guardian, trustee, &c. have in right of their offices, trusts or appointments received any sum or sums of money for the use of his or their principals, &c. and have
The defendants do not come within the provisions of this act, which requires an account on oath of the guardian, himself. There was good reason for this, because none but the guardian can be supposed to have a personal, knowledge' of the transactions touching his ward’s estate. But it is said that by this construction many guardians may be injured, who had received paper money and died before the making of the act. It is not to be presumed that many accounts of such ancient date remain at this day unsettled, so that very little injury could arise from the construction which has been mentioned. There is no occasion however to decide upon cases not before us. What equitable extension of the liberal words of the act, the Court might think itself justified in giving in case of extreme hardship, I will not say. The original defendant in this action had twelve years after the commencement of it, to render his account on oath; having omitted it for so long a time, it may be fairly said that according to the words and spirit of the act, he has declined to make his oath. Such gross negligence, if negligence it be, deserves no countenance. But it may be suspected that the guardian did not choose to make an oath on the occasion, and intended to rest his defence on other evi
The plaintiff, alleging that the intestate whom the defendant represented, had in his capacity of -guardian, received money for the use of him the plaintiff and those whom he represented, offered the evidence of a ■third person who had paid the money, together with a paper purpoi'ting to be a bond cancelled, on which it had been paid, and a receipt thereoxi indorsed with a subscribing witness to' the receipt. Had the receipt beeix offered singly, with an offer to prove the hand writing of the intestate giving the 'receipt, would it come within the rule that the subscribing witness must be first called? The third party producing the receipt against the intestate might be held to this strictness, for he had called hixn to subscribe; but to the plaintiff he could not be supposed tobe known. To the plaintiff producing this receipt, it xnight be said there is better evidence, that of the party to whom the receipt purpox’ts to be given; produce hixn and let us hear him speak; that would be at least of equal if not superior grade with the receipt in his possession, and more satisfactory, for he could tell us how and on what account he paid it. But the person paying the money is produced, and the how and on what account he paid it, is shown by the cancelled paper which he holds in his hand, and as a circximstance of further evidence in corroboration of his account, a receipt indorsed upon it is shown. The plaintiff would seexn to have begun right and to have given the best evidence in establishing the fact. He is not bound to call the subscribing witness to the receipt, nor to shew the receipt itself. The receipt was a voucher for the party paying the money; but the plaintiff has nothing to do with it, provided he can prove the paying, independent of it. The ■
With regard to the question under the second exception, the competency of a party to the action, having no other interest but as to the costs in the event of the suit, an offer to pky the costs is not sufficient. A sum sufficient to cover the costs must be paid, that he may cease to have an interest in the event of the suit, let the verdict be which way it may. The party therefore nominal in the first instance, or lnade nominal by a release of interest, must deposit sufficient to cover the whole costs, so that at all events they may be paid in order to render him indifferent. It is the party producing him in order to have the. benefit of his testimony that must be supposed to pay; and this is no hardship, as he submits to a certain loss for a certain advantage, in his estimation at the time greater. It can therefore only be under the act of assembly in the special case, that the witness in this case was admissible, if admissible. This act of assembly was provided in consequence of a peculiar circumstance in the depreciation of money, and this being made a legal tender in the payment of debts, so that trustees in any capacity might be obliged to receive depreciated currency offered in payment of what was due to those whom they represented, or for whose use they were rendered compellable to receive It, the oath of these as to the kind of money paid and the time of payment, and all matters of this nature, was made evidence. For the time, where the currency depreciated from time to time, was material; and the emission of paper money might be material; for if I recollect right, it was not every species of bills, state or continental, as it was called, that was made a legal tender. It might also be material to shew the necessity of receiving this money, it being tendered; and also the not being able to exchange it, or to put it out again for the benefit of those for whose use it was paid, might be material. It was in consideration of these things, reconciling
As to the exceptions under the third head, I must say the same, as to the original book of receipts kept by the guardian. It was admitted by me and I still incline to think that it ought to have been admitted on this trial before the president of the District Court. With respect to the account of the administrators of the guardianship of the intestate, accompanied with the offer of the administrators to be cross examined respecting the said account, and all things touching the same on oath, the only objection I can see is the not being offered to the Orphan’s Court in the first instance; for if I am correct in allowing those interested in the estate to be admitted to an oath on the settlement of the account of the discharge of his trust, this would remain the only objection. This was admitted by me on the trial in the Circuit Court, though I thought it a doubtful point, if I remember
Judgment affirmed.