1 Pa. 435 | Pa. | 1845
The opinion of the court was delivered by
- This was an action of assumpsit to recover the amount of a promissory note given by James W. Stewart, the drawer, and Peter Kennedy and David Wolf, sureties, to Peter and Abner Fink. The cause was • referred to arbitrators, who awarded-in favour of plaintiffs, against James W. Stewart, the drawer, and David Wolf, one of the sureties, and in favour of Peter Kennedy, the other surety. From this award, Wolf, the surety, and one of the defendants,- appealed. No appeal was entered by plaintiff nor by the other defendants. The cause therefore was tried in the name of Peter and Abner Fink, the plaintiffs, against David Wolf, the defendant. The defence before the arbitrators was, that the plaintiffs accepted the note of the drawer, Stewart, and a certain Charles Ensell, in satisfaction of the debt on which suit was brought. And secondly, if rjot in satisfaction, yet that time was given, without'the assent of the sureties, whereby they were discharged. On the trial, the plaintiffs gave in evidence the, joint note, and rested. Whereupon the defendants, after giving in evidence the deposition of Charles Ensell, offered the deposition of James W. Stewart, the drawer of the note, taken since the award of arbitrators against him, with proof that he was a certificated bankrupt. The evidence was rejected by the court, and this is the first error. The defendant requested the court to charge the jury:
1. That Peter Kennedy, one of the sureties, having been discharged in law from all liability on the note, by means of the award of arbitrators in -his favour, unappealed from, that .discharge operates to the release and discharge of the defendants in this issue.
2. That the obligation on which suit is brought being a joint one, and the plaintiff having brought his suit against all the promisors, and the arbitrators having awarded in favour of Kennedy, and against Wolf and Stqwart, it was the duty of the plaintiff to appeal from the award of arbitrators in favour of Kennedy, so that the' ultimate liabi
3. That a new note having been given by Stewart, with Charles Ensell as endorser, and accepted by the plaintiff, by which time was given, the defendant Wolf is thereby discharged. The answer of the court to these propositions is assigned for error.
- It cannot be doubted, and so the court instructed the jury, that if the last note was given in satisfaction of the first, all the defendants were discharged, and the remedy was on the last note. But if merely time was given, and the one surety assented to the arrangement, and the other did not; and this was the opinion of the arbitrators, as distinctly appears from the award itself, their discrimination was just. It was their duty, as they did, to find an award against the drawer and the surety who agreed to the arrangement, and in favour of the surety who had made no agreement on the subject. Why, therefore, should the plaintiff appeal from an award which he knew to be just, and harass the other surety with a suit, which he was convinced could not be maintained ? The note was joint, of course the suit must be joint ; and I see no other course which the plaintiff could pursue. There i? no" error in the answer of the court to. this point.
But was the court right in ruling out the evidence of the drawer in whose favour' an award unappealed from was made, and who at the time the deposition was taken was a certificated bankrupt. It must be admitted that the witness had not a particle of interest in the event of the suit. Bias he may probably have had; but the exclusion of a witness cannot be rested on that ground. The only tenable objection is, that at the time of the impetration of the writ and the award, he was a parly to the suit. Is this a valid objection to his competency? We are of opinion it is. In Wood v. Connell, 2 Wheat. 542, it was held, that where in a suit against three partners, one of them is returned non est inventus, he is not a competent witness for the other defendants. It is true the witness was excluded because of interest; and in this essential particular the case differs from the present. The point is new in this state, but in other states it has been repeatedly decided. A party to the record cannot be sworn as a witness if objected to. This was ruled in the case of the Supervisors of Chenango v. Birdsall, 4 Wend. 457, where one of the defendants was offered as a witness by the plaintiff, and objected to by another defendant. In Schemerhorn v. Schemerhorn, 1 Wend. 119, it is decided that the party in a cause is allowed to prove the loss of a written instrument, but beyond this the rule is to exclude a party as a witness. In Marsh and Barton, 10 Pick. 57, where two are jointly indicted for uttering a forged note,
Such a rule, as is said in Scott v. Lloyd, 12 Peters, 149, would hold out to parties a strong temptation to perjury, and -we think it is not sustained either by principle or authority.
Judgment affirmed.