Entriken et al. v. Brown et al.

• Decision Date: 01 January 1858
• Citation: 32 Pa. 364
• Parties: Entriken et al. versus Brown et al.
• Court: Pennsylvania Supreme Court

Page 364

32 Pa. 364

Entriken et al. versus Brown et al.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Chester county.

W. Darlington, for the plaintiffs in error.—Taylor was a competent witness for the defendants; he was not liable to contribution as a co-trespasser: 1 Greenl. Ev., § 357; Stockham v. Jones, 10 Johns. 21; Wakely v. Hart, 6 Binn. 319; Lloyd v. Williams, Cas. Temp. Hard. 123; Talmage v. Burlingame, 9 Barr 26. It was error to tell the jury they might imply ownership from the possession of a minor.

W. Butler, for the defendants in error.—Taylor was properly rejected as a party to the record: Wolf v. Fink, 1 Barr 435; Parke v. Bird, 3 Id. 360; Irwin v. Shumaker, 4 Id. 200; Norris v. Johnston, 5 Id. 290; 1 Greenl. Ev., § 358, note 1; Id. § 363. The defendants could not take advantage of Taylor Brown's minority, his purchase was valid as to them: McCloskey v. Cyphert, 3 Casey 225; Hesser v. Steiner, 5 W. & S. 476; Biddle v. Moore, 3 Barr 178; McGinn v. Shaeffer, 7 Watts 414; 2 Kent Com. 234-5; Parsons on Contracts 274-5-6.

The opinion of the court was delivered by WOODWARD, J.

Nathan Taylor, a co-trespasser with the other defendants, was named in the præcipe and writ, but was not arrested, and the jury was not sworn to try him. Was he a competent witness for his fellows?

It is very earnestly insisted that he was not, but the cases in our own books which are relied on, were cases sounding in contract, and not in tort, and are not, therefore, applicable. Joint contractors are liable to contribution among themselves, and hence it is apparent, that one not served is not a competent witness for those who are; because, to escape liability over, he has a direct interest to defeat the plaintiffs' claim. But among trespassers, contribution does not obtain. Taylor would not be liable over to the other defendants, though he would be liable to the plaintiff in a subsequent action, if the plaintiffs failed to obtain satisfaction in this suit.

It is manifest, therefore, that Taylor was called to testify against his interest, and was not on this ground disqualified.

But it is supposed, he was excluded by some rule of policy, and there are authorities to this effect which are cited in the note to 1 Greenl. Ev. § 358. They all rest, however, on the case of Lloyd v. Williams, Hard. Cas. 123. The question there turned upon the sufficiency of the outlawry of the defendant, whose testimony was offered, and Lord HARDWICKE held the outlawry good, and said, if he was outlawed, he certainly had been served with process.

This then never was an authority for a case like the present, where there was no service of process, nor any equivalent for service. Nor has this case been followed, but on the contrary, it was very expressly repudiated in Stockham v. Jones, 10 Johns. 22; and in Wakely v. Hart, 6 Binn. 319, in which C. J. TILGHMAN said the principle long adopted by this court was, that the interest which the witness has in the verdict, is the criterion by which his competency is to be tested. That was trespass against four, all of whom were served, but only two of whom pleaded to issue; and, on the trial of these two, the others were held to be competent witnesses,...