Beaver v. Beaver

• Citation: 23 Pa. 167
• Parties: Beaver versus Beaver.
• Decision Date: 01 May 1854
• Court: United States State Supreme Court of Pennsylvania

Page 167

23 Pa. 167

Beaver versus Beaver.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Chester county.

Lewis, for the plaintiff in error.—It was contended that the administrators could not recover from the defendant, when the latter,

as surety for the decedent, was liable for more than the amount claimed by the administrators: 2 Rawle 227; 17 Ser. & R. 287; 1 Barr 266; 2 Dev. Ch. 31; 1 Freem. Ch. 273. As soon as a surety's obligation becomes absolute, he is entitled in equity to require the debtor to exonerate him, and he may exhibit a bill for the purpose: 2 Bro. C. C. 579, Nesbit v. Smith; Theo. 226; 1 Story's Eq. 5-327-639.

As to the 3d specification, the extent of the defendant's liability on the note had been definitively ascertained: 2 Jones 342.

Pennepacker, for the defendants in error.—The notes as evidence of set-off or equitable defence were rejected on the authority of the cases in 4 Barr 32, Bosler v. Exchange Bank; and 8 Barr 403, Light v. Leininger.

The opinion of the Court was delivered by LEWIS, J.

The errors complained of relate to the admission of John Benjamin as a witness for the plaintiff below, and to the ruling of the court against the matters of defence relied on by the plaintiff in error.

It does not appear that John Benjamin was ever a party to the contract with the defendant on which the action was brought. That contract was one in which Samuel and John Beaver were the only parties. The witness had acquired from John Beaver an interest in it which he had re-sold to the man from whom he acquired it, as early as December, 1847, under an agreement by which he was to be cleared from the same. He stated on his examination that he had no interest. As the witness was not an original party to the contract, as the plaintiff did not derive title through him, and as he had no interest in the result, we do not perceive any error in admitting him as a witness. As his testimony related exclusively to the "apple speculation," if the paper-book informed us that that cause of action, and the issue found in regard to it, was separated from the other, we would not disturb it for errors existing in reference to the other parts of the case. But we are left in the dark on this point, and it must therefore fall, in the general result.

In Bosler's Administrators v. Exchange Bank, 4 Barr 32, it was held that a debt not due at the death of the plaintiff's intestate, could not be set off; and in Light v. Leininger, 8 Barr 403, it was decided that if the debt was due at the death of the decedent, it might be set off, although the estate was insolvent. It was there affirmed as a principle that "mutual demands mutually pay and satisfy each other, if the defendant chooses to make defence." But these cases do not touch the question presented on this record. The case before us depends upon the equity of a surety. As between principal and surety, Courts of Equity always lend their aid for the protection of the latter. As soon as the surety's obligation to pay becomes absolute, he is entitled in equity to require...