Purviance v. Dryden , 3 Serg. & Rawle 402 ( 1817 )

^ Tilghman C. J.

, .,r,. „ On the trial of this cause in the Court of Common Pleas, a bill of exceptions was taken by the defendant to the admission of the deposition of Samuel Dryden, jun., son of Samuel Dryden, the testator, for the benefit of whose estate this action is prosecuted. The exceptions to'this deposition were of various kinds; some formal; but one, on the ground of interest. The first objection is, that the witness was a party to the suit. The writ was issued against him as well as Purviance, but he never was summoned, and the action, according to our practice,was carried on against Purviance alone. In fact, then, the witness was not a party to the suit, and therefore there is no force in this objection. But, second, it is objected, that this deposition was taken under a commission, in which the action was entitled, “ Samuel Dryden “ against Samuel Dryden, jun. and Samuel Purviance,” which is a different action from that which was tried. This exception is purely technical; it ought not to prevail, because the defendant so far j oined in the commission as to file interrogatories, on which the witness was examined. The Court of Common Pleas, on application to them, would have amended this defect in the title of the commission. It was merely a clerical error, and may be considered by this Court, as if had been amended. The third objection is, that in the plaintiff’s statement, filed under our act of assembly, he describes his cause of action as founded on the assumption of the defendants, Samuel Dryden, jun. and Samuel Purviance. This exception, if good, would have operated rather in arrest of judgment than against the deposition; but there is nothing in it. The statement was introduced by an act of assembly, and stands in the place of a declaration, but is not restricted to any particular form. Its object is, to inform the defendant of the nature of the plaintiff’s demand. Now this statement conveyed to the defendant the nature of the plaintiff’s demand, with great truth and precision. It told him, that “ the demand “ was founded on a joint assumption of the defendant and “ another person,” who not being summoned on the process issued against both, the action was necessarily prosecuted against the defendant alone.' It was impossible to give a better description.

The fourth objection is founded on the interest of the witness in the event of this suit. The defendant’s argument *s’ ^lat Samuel Dry den, jun. being originally chargeable with the whole amount of the money borrowed of his father, is interested in the plaintiff’s recovery, because he thereby throws half of the debt on the defendant. The argument is strong, and I think has not been answered. Samuel Dryden, the son, the witness, received from his father, the whole money demanded in this suit; of course, he is prima facie answerable for the whole, and if the plaintiff fails in this suit, he must pay the whole. The effect of his evidence then is, to take half of the burthen off his own shoulders and throw it on the defendant’s. It is contended, that he swears against his interest, because he confesses himself answerable to the plaintiff for the whole debt. True, he does so; but tracing the consequences of his testimony to their final result, he gets rid of half the debt, to the whole of which he.would otherwise be liable. In Phill. Law of Evid. 62, it is laid down, that in a case of this kind, a man cannot be a witness, for the reason which I have assigned. Upon the whole, then, I am of opinion, that upon the ground of interest, the witness was incompetent, and the deposition ought not to have been read. The judgment is to be reversed, and a venire facias de novo awarded.

Gibson J.

I agree that a partner receiving money on behalf of the firm, is a competent witness to prove that fact, the partnership being proved by other evidence; for he thereby gives an action against himself to his partner, in which it would be incumbent on him to prove the money, so received, was carried into the partnership stock. But beyond this his evidence is not competent. Indeed, in a case strictly analogous, the witness is entirely excluded. On an indictment against a township for not repairing a highway, a parishioner is not a competent witness for the prosecution, even to prove the road to be a common highway, though it may be said, that to such an extent he charges himself, and his testimony is against his own interest. The answer is, that on the trial of the indictment his evidence has not that tendency; for without the proof of that fact the indictment cannot be sustained, and the witness, by giving such evidence, is supporting a prosecution which, if it succeed, would have the effect of discharging him and the rest of the parishioners. Phillips’s Ev. 56. In the present case, the witness would clearly be incompetent to prove the partnership, and for the same reason, after proving he had received the money on account of the partnership, he ought not to be permitted to state that he paid it over to the defendant, who paid it away to his separate creditors. If the plaintiff should fail in this suit, the witness would be liable to him for the whole sum borrowed, and if it were recovered from him, or he paid it in discharge of his liability, and sued his partner for a contribution, he would be bound to prove the existence of the partnership, and that this sum was employed in the business of the firm. I think it clear he was incompetent to prove any fact he would be bound to prove in a suit between himself and his partner, in which the verdict, as in the present case, would be evidence. But suppose a recovery here, and a suit brought against the witness by the present defendant, founded on the admission of the receipt of the money, contained in his deposition, (and the fact may be susceptible of no other proof,) to make him account for.what he did with it; would his bare acknowledgment of the fact of receiving, unaccompanied by the explanation of the whole transaction which he has given, be selected as evidence to charge him; or would not all he has said be taken together; and if believed, would it not prevent a recovery against him? For he explicitly states, that the money was handed over to the defendant, who actually paid it away in discharge of his separate debts. In case of a recovery, I do not know any other means in the power of the defendant, to compel this witness to render an account of the money received, than the admission contained in this deposition. For assume it as a fact, that the money was, in fact, not carried into the partnership, or paid over to the defendant, as stated; that the accounts are settled and the concern closed; and itwill result,thatnothingrespecting the transaction will appear on the books. It is true, the defendant might have an action against the witness for a contribution, in which the record of the recovery in this suit would be conclusive ; but still the witness would be a gainer, and the defendant a loser of one-half ’ of the sum recovered by the present plaintiff. The witness, therefore, by his own shewing, did not stand equally liable to both parties. It is manifest his interest would induce him to favour a recovery, be« cause it would dissolve his liability to the plaintiff, without at • the same time rendering him liable to the defendant for more than half the same amount.

If any part of this deposition was not competent evidence, it was error to let it go to the jury. To have stricken out the objectionable matter would not, under the circumstances of this case, have made the rest evidence, as all the witness said at the time of deposing, must be taken together on a question of his liability to the defendant. Being himself a defendant on the record, he could not be compelled to give evidence ; he was a volunteer. Either to the plaintiff or defendant he is liable, in the first instance, for the whole sum. borrowed. If he choose to swear he borrowed it on the credit of the partnership without saying more, he will be permitted to do so j but he ought not to be permitted to discharge by his own evidence, his responsibility to the plaintiff, without at the same time acknowledging his accountability to the defendant for the same amount. On this ground alone, I think the judgment ought to be reversed, and I con* cur with the Chief Justice, that the other exceptions have not been sustained.

Duncan J. gave no opinion, having been counsel in the cause.

Judgment reversed, and a venire facias de novo awarded.