Hogeboom v. Gibbs, Sterrett & Co. ( 1879 )

Mr. Justice Paxson

delivered the opinion of the court, January 6th 1879.

It has been repeatedly held that the Act of 15th April 1869 was an enabling, not a restraining statute, and that it makes no witness incompetent who would have been competent prior to its passage: McFerren v. Mont Alto Iron Co., 26 P. F. Smith 180; Scheetz v. Hanbest’s Ex’rs, 31 Id. 100; Pratt v. Patterson, Id. 114. The witness Martin II. Philip would have been incompetent under the law as it stood prior to 1869. He might not have been incompetent for all purposes upon the mere ground of his being a partner. He was called, however, for the purpose of showing the partnership. The effect of his evidence, if received, would be to shift a portion of his responsibility upon some one else. He wTas thus directly interested, and for that reason incompetent under the authority of Bellas v. Fagely, 7 Harris 277; Purviance v. Dryden, 3 S. & R. 402; Heckert v. Fegely, 6 W. & S. 142; Meason v. Kaine, 13 P. F. Smith 335. The case of Brewster’s Adm’x v. Sterrett, 8 Casey 115, was relied upon by the defendant in error as sustaining the opposite view. A careful examination of this case, however, shows that it is not seriously in conflict with the authorities above cited. It is true, Mr. Justice Woodward, in the concluding paragraph of his opinion, does say that the witness Mehaffey would be competent for whatever purpose called. He was not called to prove the partnership, and it is quite possible this point did not even suggest itself to the mind of the learned justice who wrote the opinion. There is nothing in the report of the case to indicate that it did. The testimony of Mehaffey was not furnished in the paper-books. Justice Woodward supposed that the witness had been called to sustain an issue that had been withheld from the jury, which of course was not' an essential error.

The witness Philip being incompetent on the ground of interest, he was not made competent by the Act of 27th March 1865, Pamph. L. 38, Purdon 624, pi. 13, for the reason that he is neither an adverse party on the record, nor a person for whose immediate and adverse benefit such action ivas instituted, prosecuted or defended. Nor was the witness rendered competent by the Act of 15th April 1869, because thé suit in which he was called to testify was brought by an executor. Said act by its express terms does not apply to actions brought by or against executors or administrators.

What has been said covers the first and second assignments of error. The remaining assignments need not be discussed, as the questions involved may not arise upon another trial.

Judgment reversed, and a venire facias de novo awarded.