51 Pa. 387 | Pa. | 1866
The opinion of the court was delivered, by
There was no error in admitting John Best an attaching creditor to testify. He was not interested in the verdict. Though interested in establishing a fund in the hands of King and McCullough for himself, he is not interested that Faber & Co. should establish it, for this lessens his own share in it. When other attaching creditors are entitled to share pro rata in the fund, the reason why the garnishee gives their attachments in evidence is to protect himself; otherwise the whole fund would be made liable to the plaintiff. The success of each creditor diminishes the fund proportionately. It has been decided in Breading v. Siegworth, 5 Casey 396, that an execution attachment is not a proceeding exclusively in rein, but also in personam, and a verdict and judgment in favour of the garnishee in one attachment is no bar to another by a different creditor. There is no substance in the first and ninth errors. Nor do we see any in the second bill of exceptions. The defendant did not require the offer to state a specific purpose. If good for any purpose, it was therefore competent. The plaintiff averred a contract between King and McCullough, and Adams, Macklin & Co., to buy in their property under their executions, for the benefit of the latter after satisfying their judgment; and also a fraud in preventing bidders from buying, and thus getting the property at an under value. The offer on its face tends to prove both points. But it is said the offer uses the word “parties,” which does not specifically refer to King and McCullough. This is too nice a criticism. The offer proposed to show that King and McCullough and Adams, Macklin & Co. were together, and the word parties following, refers to all of them. If the proof actually restricted the statement to Adams, Macklin & Co., and the court had declined to confine it by instruction to the jury, the plaintiff in error ought to have exhibited the testimony to us to show that he was injured: Lothrop v. Wightman, 5 Wright 305.
There was no error in the third bill. Jenkins Jones was called to prove the value of the property. He did so in gross at $20,000. On an examination he stated he had a bill of the items as estimated by him. In permitting him to read them to the jury, the court only suffered him to state in detail what before he had stated in the aggregate, thus making his valuation more open to attack if unsound, and more satisfactory if reliable. A witness is always permitted to use a memorandum of particulars to assist his memory, where the subject consists of numerous items of account or of many articles. The memory cannot be expected to carry correctly a long list of articles and figures.
There is nothing whatever in the fourth bill. Why should not the testimony of Thomas Atterbury be admitted to prove that the judgments were paid in 1859 ? When offered to prove a fact
The sixth bill is in the same predicament. We are asked to say that the testimony of Jacob L. Schwartz was incompetent to show that the defendants had any goods of Adams, Macklin & Co. in their hands, while there is not a line of his testimony before us. The seventh bill must share the fate of its fellows. How do we know, without the evidence, whether the fact that McCullough offered to pay an attaching-ereditor in Baltimore fifty per cent, of his claim, was not germain to the cause. When left to guess at it, we can easily conceive that such a fact might be a link in the evidence, tending to prove that King and McCullough were acting under an arrangement with Adams, Macklin k Co. to pay their debts out of means in their hands. The special objection, that it was an offer of compromise, is unavailing in this case, and would only avail the defendants upon a question of liability to the Baltimore party.
Eighth error. The record of the feigned issue under the Sheriff’s Interpleader Act was properly rej ected, for the purpose was to show a former recovery, which if pleaded in form would be a plea in bar. But neither the parties nor subject of interest was the same. That was an issue ordered to protect the sheriff in his levy on specific goods, and the question for trial was the ownership in the particular goods and the sheriff’s right to levy in that case. King and McCullough claimed as against the plaintiffs in the execution, but the present plaintiffs are not their privies. For the same reasons that the decision of one attachment would not bar the attachment of another creditor, as decided in 5 Casey, supra, the decision against the plaintiff in the .execution would not bar the plaintiff in this attachment. The question was then the right of the plaintiffs in the execution to levy on the specific goods, but it is now whether King and McCullough have money or effects in their hands liable to be applied in payment of the debts of Adams, Macklin k Co. The plaintiffs claim through an alleged contract, which, while it left the property in the hands of King and McCul
The answers of the court affirming the plaintiffs’ two points require no vindication. There is nothing in the tenth and eleventh errors.
The twelfth, thirteenth, fourteenth and fifteenth errors all rest upon the evidence, none of which has been furnished except some detached portions, which are denied in the counter-statement. Errors committed in the trial of a cause must be shown by a bill of exceptions settled before the judge and sealed by him. Certainly nothing less than his notes of testimony, duly certified, will be taken here as evidence of the state of the facts. The paper-book in this case is made up against all rule, assigning for error in nearly every instance matters depending upon the evidence, and yet furnishing neither a bill of exceptions containing all the pertinent testimony, nor a duly certified copy of the judge’s notes. It is not fair or courteous to the learned judge who tried the cause, to make his treatment of the facts the grounds of complaint, referring to his notes as proof and yet not to furnish them. The consequence of the omission is that the paper-books are at war with each other upon the facts, and are filled with harsh contradictions. We cannot approve of this practice.
There was no error in the mode of receiving the verdict. It was the best the judge could do under the circumstances, and exhibits his strong desire to prevent a mistrial and further costs. The sickness of the juror was beyond his control.
Finding no error in the record as returned, the judgment is affirmed.