Allum's Ex'rs v. Carroll's Adm'rs ( 1871 )

The opinion of the court was delivered,

by Agnew, J.

This was an action against three joint promissors, and had been tried before arbitrators, when the plaintiff called upon Thomas Carroll, one of the defendants, to testify, under the provisions of the Act of 27th March 1865. The defendants then, under the Act of 10th April 1867, called upon William McKenna, another of the defendants, to testify. Carroll died after an appeal taken, and at the trial of the cause in court in September 1870, the defendants offered in evidence the testimony of McKenna as given to the arbitrators, which the plaintiff objected to as incompetent, and it was received by the court. This, we think, was an error. McKenna himself was incompetent to testify under the Act of 15th April 1869, Charles Allum being dead, and the action in the name of his executor. On the trial of an appeal the proceeding is de novo, and it required an Act of Assembly to make a deposition taken to be read before arbitrators competent to be read afterwards on the trial in court. McKenna’s testimony was made competent before the arbitrators, not by being called by the plaintiff and his credibility thus endorsed by him, but by the calling of Thomas Carroll, a co-defendant. It is true the plaintiff by calling Carroll ran the risk of any one of his co-defendants being called by the adverse party; but this risk was assumed solely on the ground that it could safely be met by the testimony of Carroll. But when Carroll died the circumstances changed. Then the case stood precisely upon the reason of the Act of 1869, which excludes one party when the other is dead; that is, because it would be unjust to hear one party when the other party could not be called to contradict him, or to explain what might be even the truth. Carroll being dead, the plaintiff was not bound to call either of the other defendants, and in fact did not. On what proper ground, therefore, can the defendants be permitted to give in evidence the former testimony of one of them called only to rebut or explain the testimony of Carroll ? The plaintiff had not endorsed his credibility, and had not chosen that he should be heard alone. His former testimony was not more competent than his present testimony, and that the judge had properly excluded and given to the defendants a bill of exceptions.

Eor the error stated the judgment is reversed, and a venire facias de novo awarded.