Luke v. Leland ( 1850 )

Fletcher, J.

The first exception is to the admission of Mason as a witness, on the ground of interest. The tendency of his testimony was to establish the validity of the bond in suit. The only interest he could possibly have, so far as is disclosed by the facts in the case, is, that if the validity of the bond was established, his debtors would be better able to pay their debts. The witness was not interested in the subject-matter of the suit, and would derive no immediate benefit from the result. The fact, that if the validity of the bond was established, his debtors would be better able to pay their debts, did not create such an interest as would exclude him from testifying. If it created any interest at all, it was but a remote and contingent interest, which would not affect the competency of the witness. This point is quite too clear to require discussion. Creditors are constantly admitted to testify in cases where their testimony tends to enable their debtors to hold or recover property, and thus be better able to pay their debts. But such an interest has never been held to render a witness incompetent.

Another exception is, that the award did not decide all matters in dispute. This exception finds no support in the facts of the case. It is said, that the award itself expressly on its face does not affect certain notes. Be it so ; but it does not appeat, that these notes were in dispute, or were-any subject of controversy; and that would be a good reason, why they should not be embraced within the award, or affected by it. Besides, such an exception comes quite too late, after the award has been accepted and fully performed by the parties.

A third exception relates to the instruction of the court below, on the point, that the award was not returned to the court of common pleas, before the expiration of the year. The instruction was, that if the conditions of the award had been complied with by the parties, before the expiration of fine year within which the same should have been returned to the court of common pleas, such performance dispensed with the necessity of returning the award; and that the bond and other contracts entered into by the parties, in pursuance of the award, would be valid, and of the same effect, as if the award had been returned to court within the year. There can be no valid objection to this instruction. It would have been a perfectly idle and vain act, which could not be required by any principle of law, or any dictate of reason or common sense, to return the award to the court, after it had been accepted and fully performed and fulfilled by the parties. It was then completely discharged of its effect. It would have been entirely useless, to say the least of it, to have carried it then to the court.

Besides, in the conditions of the bond given by the defendants to abide the award, it was provided, that Leland should fulfil the same without awaiting the judgment of the court.

The last exception to the instruction proceeds on the ground, that Leland could not waive the payment of the $500 on the 19th, and afterwards deliver the bond, or authorize the arbitrators to deliver the bond, so as to bind Harrington, the surety.

The exception assumes, that in regard to delivering the bond, Leland acted under a restricted authority, and that he exceeded his authority. The objection to this position is, that it is wholly unsupported by any evidence disclosed in the case. The learned argument, offered in support of the exception, fails wholly of its intended effect, for want of a foundation in the facts. Harrington signed the bond as surety, and intrusted it to Leland to be used as he pleased. There is nothing in the case to show, that there was the slightest restriction or limitation upon the right or authority of Leland as to delivering the bond. So far as appears, he had the most general and unlimited authority, to deliver the bond at his pleasure. Leland was the party in interest, and Harrington, so far as appears, became his surety in the bond, leaving to him to manage his own affairs in his own way, wholly free from any conditions or interference on the part of Harrington. There is therefore nothing in the case to show, that Leland nad not a perfect right to deliver the bond, or to authorize the arbitrators to deliver it, in the manner and under the circumstances in which it was delivered. Nothing appearing to exempt Harrington from his liability on the bond, the instruction of the court below was perfectly correct on this point.

Exceptions overruled.