9 Pa. 21 | Pa. | 1848
It is a trite rule in equity that if a creditor has in his hands or power the means of payment, and voluntarily relinquishes it, or if he agree, for consideration, to give to the principal debtor further credit for a definite time, without the assent of the surety, the latter is discharged, though judgments may have been recovered against both. Of relief given upon the first of these grounds, The Commonwealth v. Miller, 8 S. & R. 452, is an example and illustration, and The Manufacturers’ and Mechanics’ Bank v. The Bank of Pennsylvania, 7 W. & S. 335, furnishes an instance of the second. They are alluded to not because the proposition at this time of day requires the aid of citations to compel assent to it, but for the reason that both these cases are, in feature, much like the present. On the trial, the defendant furnished evidence that both these contingencies had occurred, through the agency of the plaintiff’s attorney. His authoi’ity to enter into these arrangements is not questioned, and if it were, there is abundant proof the plaintiffs recognised and ratified his acts. These matters of fact were fairly referred by the court to the jury as proper for their decision. The instructions which accompanied this reference are acknowledged to be correct, provided Irons can, in legal contemplation, be regarded as the surety of Burlingame in their relations to the creditor. As between themselves, and for the purpose of charging Burlingame, Irons certainly cannot be so esteemed. As the case is disclosed by the evidence, he stood, in respect to the principal debtors, a mere volunteer, who had undertaken to pay the debt of another without his request, and under no circumstances of compulsion, moral or legal. The undertaking was without privity with, and imposed no additional obligation upon Burlingame. Had Irons, therefore, been compelled to pay the debt in discharge of his assumption, he could not have called on the real debtor to reimburse him, except perhaps in equity, through the medium of the original security, for no man is permitted to thrust -himself, unbidden, into a relation which may impose a new, or change an existing liability of another, so far, at least, as his rights are involved. But the relative position of Irons and the plaintiffs, creditors of Burlingame, is very different. He became liable to answer to them before his engagement. The absence of a request by the original debtor inducing the
This brings us to consider the only remaining points in the cause. Was Burlingame competent, as a witness, to prove the facts he testified to ? Generally, a principal debtor is not a good witness for a surety in an action against the latter; not because he is liable to make good the amount that may be recovered against the surety— for in this his interest is in equilibrio, since he is equally liable to the creditor — but that he is also answerable in the event of a recovery, for the costs of the action: Bank v. Walker, 9 S. & R. 236, 237; Smith v. Thorne, 9 W. 144; Davenport v. Freeman, 3 W. & S. 557. It is clear, however, he may be examined to anything tending to exonerate a surety, if he be not liable for costs or is released from the payment of them: Miller v. Stem, 2 Barr, 286. But the original debtor is not liable for these costs unless he stands in the relation of principal to the person sued as surety. Before, therefore, any objection to his competency can be entertained on this ground, it must be shown that this relation exists. In this, however, the plaintiff’s objection fails, for we have seen that, as against Burlingame, Irons cannot claim the vantage-ground of a surety. The exception to him on the score of interest is, therefore, out of the way.
It is further insisted that he is a party to the record, and therefore incompetent as a witness on grounds of public policy. The rule seems to be that a co-defendant cannot testify for his fellow, though not brought in on process, or being so, though his interest in the event has been destroyed pending the action: Parke v. Bird, 3 Barr, 360; Wolf v. Fink, 1 Barr, 440. In the latter case, the defendant offered as a witness had become a certified bankrupt, after an award against him and a co-defendant, from which he did not appeal. It was admitted his interest was gone, but he still remained a party to the record, notwithstanding the judgment against him on the award, for this was liable to be modified or altogether annulled upon the trial of the appeal entered by the other defendant: Ramsey’s Appeal, 4 W. 71. He was thus in the position of one of several defendants sued in an action ex contractu, who suffers judgment to go by default. Yet he cannot be examined as a witness for the others, because the efficiency of the judgment against the party defaulting, depends on the event of the verdict to be rendered on the trial of the issue tendered by the others: Mant v. Mainwaring, 8 Taunt. 139; Brown v. Brown, 4 Taunt. 752; Schermerhorn v. Schermerhorn, 1 Wend. 119; and he, therefore, is still a party
If we apply these principles to the question in hand, I think
The first bill of exceptions was abandoned.
Judgment affirmed.