3 Rawle 469 | Pa. | 1832
the opinion of the court, in which the case is fully stated, was delivered by
This was an action of assumpsit brought by Jonathan Kimball and Peter Tyson, (who died after the commencement, and before trial of the suit,) to recover the amount of two judgments which had been entered in the court of Common Pleas of Montgomery county, in favour of Jonathan Kimball and Peter Tyson, the plaintiffs in this action, against Josiah Kimball the defendant, upon judgment bonds given by him to the plaintiffs, each for the sum of eight thousand five hundred and fifty-four dollars and twenty eight cents, conditioned for the payment of one half that sum.
The declaration set forth, that the defendant after having sold ten acres of land, part of his real estate, which was bound by the judgments, to a certain Jonathan Shaw, and having agreed to make Shaw a title for the ten acres, clear of incumbrances, applied to the plaintiffs in the judgments and reqested them to enter satisfaction upon the judgments, that he might be enabled to comply with his contract, in making a title to Shaw, and at the same time promised the plaintiffs, that if they would enter satisfaction .upon the judgments, he would give a new judgment to the plaintiffs in the court of Common Pleas of Montgomery county, for the aggregate
Upon the trial of the cause, it appeared that the plaintiffs, Jonathan Kimball, and Peter Tyson who was married to thesister oí Jonathan Kimball, had been the ad’rs of William Kimball deceased, the father of Jonathan Kimball the plaintiff, and of Josiah Kimball the defendant and that the bonds upon which the two judgment were entered up in their favour, against the defendant Josiah Kimball had been given to them, partly for their own use, and partly in trust for the use and benefit of the other children of the said William Kimball; and that the satisfaction entered upon the judgments had been done without the consent, and without consulting these other children. It did not appear that these other children had been paid or satisfied, in any way, for the amount of their interest in these judgments by Jonathan Kimball and Peter Tyson, or either of them. On the part of the plaintiff William Tyson, one of the children of Peter Tyson, who was one of the plaintiffs in the judgments, and one of the plaintiffs in this action, at its commencement, and for sometime afterwards, until he died intestate, leaving an estate which passed and descended to his children, was offered as a witness after having executed an assignment under his hand and seal, to a certain John Keck, in consideration of ten dollars paid to him by Keck, of all his right, claim, interest and demand in the monies for the recovery of which this suit was brought, as also all his right and interest in the same; and the plaintiffs offering at the same time to pay into court all the costs which had accrued in the suit, and a sum sufficient to pay and cover all that might thereafter accrue. The defendant objected to the competency of William Tyson, so offered as a witness, on the score of his being interested in sustaining and promoting a recovery in this suit. The Chief Justice thought so, and refused to admit him. From this decision an appeal has been taken to this court.
The decision of the Circuit Court upon this point, -we think was right. William Tyson, who was offered as a witness on behalf of the plaintiffs, had merely transferred and assigned such proportion of the money, which might be recovered in this action, as would be coming to him as one of the children and heirs of his father; but it is manifest that he was interested in a recovery being had beyond this; for he could have no claim to the money or to any portion of it, recovered in this suit, until all the other children of William Kim-ball deceased, beside Jonathan Kimball, were satisfied and paid their respective proportions of it; and in case of a failure to recover in this action, he would not only lose his claim to that portion of the surplus
Neither has the case of Patton v. Ash, 7 Serg. & Rawle, 116, which has been referred to, and mentioned also by the counsel for the appellant ; or if it has, it is rather against him, for the court seem to insinuate that if it had been suggested there that the administrator, who was a party on the record to the suit, had committed a devastavit he would not have been a competent witness, although he had released all claims to any possible benefit which he might derive from a recovery in it. Now it appears in the case before us, that a devastavit was committed which must diminish the amount of the estate out of which the person offered as a witness claims to have his equal distributive share, unless there shall be a recovery in this action.
Judgment of the Circuit Court affirmed.