50 Pa. 441 | Pa. | 1865
The opinion of the court was delivered, by
The fundamental question of fact in this case appears to have been whether the note upon which the suit had been brought was the note of R. E. Parker as well as that of Laughlin, the other defendant. It had been given to Pomeroy by Laughlin, and Pomeroy had sold it to the plaintiff. By the sale, he warranted it to be" what it purported, the note of both Parker and Laughlin. A transferrer, even by delivery, of a promissory note or a bill of exchange, though he does not generally warrant the solvency of the maker, does warrant that the bill or note is not forged or fictitious ; that it is what it appears to be: Jones v. Ryde, 5 Taunt. 489. In that case Chief Justice
It remains only to inquire whether Laughlin was a competent witness for the plaintiff. He was one of the defendants. He made the note in suit, signing it it. E. Parker & Co. The suit was brought against him and Parker as partners, and judgment for default of appearance was entered against him. Parker alone pleaded to issue, and the issue was tried against Parker singly. Under these circumstances, certainly Laughlin cannot testify to fasten the debt upon Parker jointly with himself, unless a verdict and judgment for Parker would sweep away the judgment already obtained against him for default of appearance. The plaintiff in error contends that such would be the effect of a verdiot and judgment against the plaintiff, and he relies in support ol his position upon Ramsey’s Appeal, 4 Watts 71. That case is very briefly reported. All that we are informed about it is that a joint suit had been brought against William Ramsey and Sterrett Ramsey, and referred to arbitrators, who awarded $800 against both defendants. From this award Sterrett Ramsey alone appealed. Before the appeal was determined William Ramsey died, and the matter before this court was the distribution of his estate. One, among other questions, was whether the plaintiff in the suit was entitled to immediate payment of his award against William Ramsey; and, in delivering the judgment of this court, Judge Rogers said, “ The situation of that claim is such that we cannot now decide whether the plaintiff will ultimately be entitled to the money or not. The appeal of Sterrett Ramsey is still pending, and until that is disposed of, it is impossible to say whether anything may be ultimately found due ; for if Sterrett' Ramsey succeeds on the appeal, it will be virtually a finding in favour of William Ramsey’s estate. In that event, notwithstanding his judgment, he may recover nothing from the estate of William Ramsey.” Though this may have been entirely correct, as applied to the case then under consideration, it is not very satisfactory as the assertion of a rule. No reason is given, no authority is cited, nor are we informed of the nature of the action brought against the tivo Ramseys or of the character of Sterrett’s defence. As a universal rule, the position taken by Judge Rogers cannot be sustained. It is certainly not correct in regard to actions founded on torts ; and it has been repeatedly held that in actions upon joint contracts, if one defendant be defaulted and the other go to trial on a defence personal to himself, a judgment in
None of the cases referred to by the learned judge of the Court of Common Pleas, or by the counsel of the defendant in error, are inconsistent with the doctrine of either Pipe v. Steele & Harvey or Hayes v. Gudykunst. They come within the admitted exception to the general rule. In all of them the defendant who succeeded, after a default of his co-defendant, or after an award against both from which he alone appealed, set up matter in his personal discharge, and not a defence which was equally available by both defendants. In both Talmage v. Burlingame, 9 Barr 30, and Holt v. Bodey, 6 Harris 207, the successful defendants were sureties, and the ground taken for their discharge was not, that the debt had no existence or that there had been no joint contract, but that the creditors’ conduct had relieved them as sureties. Such, however, is not this case. The defence set up by Parker is not peculiar to himself. It is that he was never a party to the note, and that no such joint contract was made as the plaintiff’s declaration avers. His defence, if true, is equally a defence for Laughlin, for neither of the defendants can be liable in this suit unless they were joint promissors. The conclusion is therefore inevitable that on the issue tried a verdict and judg
It is suggested, however, that our Acts of Assembly of May 4th 1852 and April 12th 1858, on the subject of amendments, may prevent the extinction of the judgment by default against Laughlin, as a consequence of a verdict and judgment- in favour of his co-defendant. These acts, it is said, authorize the' court to strike out the names of parties, plaintiffs or defendants, and try the case against the others. It is not perceived how those acts can have any effect upon the present case. If Laughlin had not suffered judgment by default, but the case had gone to trial against both defendants, and if, the plaintiff discovering that he had no cause of action against Parker, the court had, at his request, struck Parker’s name from the record, there could have been no recovery against Laughlin for the cause set out in the declaration.
But though the witness was not incompetent to testify for the plaintiff on account of interest, was he not because of his being a party to the record ? It was early doubted, in the English courts, whether a party to the record can be permitted to testify, though he has no interest. In Mant v. Mainwaring, Hill et al., 8 Taunt. 139, it was ruled that in an action on a joint contract against several partners, one of the defendants, having suffered judgment to go by default, is not admissible to prove the partnership of himself and the other defendants without their consent, although the proposed witness is released from all other actions than that on which he is called to give evidence. The exclusion of the witness was put upon two grounds: first, that he was interested, the judgment against him operating only in the event of a verdict against the other defendants ; and, secondly, that a party to a suit cannot be examined. See also 2 Camp. 333, n. But in Worrall v. Jones, 7 Bingh. 795, it was directly ruled that a party to a suit is a competent witness, provided he is disinterested. The earlier English doctrine seems, however, to be elsewhere recognised, though not universally. In Schermerhorn v. Schermerhorn, 1 Wend. 119, it was ruled that one of several makers of a promissory note, discharged as an insolvent debtor, his discharge unimpeached and himself released from all liability by the joint maker of the note, has no interest in a suit commenced
Controlled by this course of decision, we are led to the conclusion that Lauglilin was not a competent witness for the plaintiff.
The judgment is affirmed.