99 Pa. 207 | Pa. | 1882
delivered the opinion of the court, January 3rd 1882.
This record presents the single question of the competency of the plaintiff below as a witness. The suit was an action of debt upon a bond given by Samuel L. Hughes, who was administrator of Samuel Riggle, deceased, and Oliver Lacock, who joined in the bond as surety of Hughes. The bond was conditioned for the proper application of the proceeds of certain real' estate sold by the administrator in pursuance of an order of the Orphans’ Court. Hughes, the administrator, was served and appeared by counsel. His deposition was subsequently taken, after which, and before the trial of the case, he died, and upon motion his name was stricken from the record, leaving the suit to stand against Lacock, the surety, alone. Upon the trial the plaintiff was admitted as a witness -to prove that he had never received his distributive share of the estate, and that a receipt for such share purporting to be signed by him, was not in fact so signed, nor was it signed for him by any one with his authority.
It is very clear that if the death of Hughes had been suggested upon the record and his administrator substituted, the plaintiff would have been incompetent. It has been repeatedly held that if there be an executor or administrator properly upon the record at the time of trial, the competency of witnesses remains as before the passage of the Act of 1869 : Brady v. Reed, 6 Norris 111. Does the fact that the name of Hughes was stricken from the record make any essential difference? The effect of this was, as before observed, to charge the surety alone. Yet the recovery here was a substantial recovery against the estate of Hughes. The judgment against the surety would be conclusive evidence in a suit by him against Hughes’s admin istrator, for the reason that Hughes had notice. He was an original party and appeared by counsel. He would be liable upon the contract of indemnity which the law implies the moment the surety’s obligation is entered into. A judgment recovered against a surety is always evidence in an action by him against his principal: Clark’s Executors v. Carrington, 7 Cranch 308: Drummond v. Prestman, 12 Wheaton 515; Wharton on Evidence, § 770 ; and it is conclusive evidence where notice has been given to defend the action: Lloyd v. Barr, 1
The fact that the deposition of Hughes was read in evidence by the defendant does not affect the competency of the plaintiff. The latter was examined before the deposition was offered. Besides, Hughes was a competent witness when his deposition was taken, and his subsequent death did not render his testimony taken before his death incompetent. This has been ruled in several recent cases. It is sufficient to refer to Evans v. Reed, 28 P. F. Smith 415, and 3 Norris 254.
We are of opinion that the plaintiff was incompetent to testify as to any matters which occurred prior to the death of Mr. Hughes. This sweeps away all of his evidence that is of any value, which, in view of the whole case, and of his laches in bringing this suit, is not much to be regretted.
Judgment reversed, and venire facias de novo awarded.