Fetterman v. Plummer
| Decision Date | 27 September 1822 |
| Parties | FETTERMAN, for the use of FETTERMAN, v. PLUMMER'S Administrator. |
| Court | Pennsylvania Supreme Court |
Where a chose in action is equitably assigned, and suit is afterwards brought by the assignee, in the name of the assignor, for his use, the assignor, if he have no interest is a competent witness for the plaintiff. [1]
WRIT of error to Venango county, in an action brought by the plaintiff in error, on a single-bill of Samuel Plummer to John Fetterman, dated August 7th, 1805, for $100, payable on demand; the plea was payment, with leave to give the special matter in evidence.
The plaintiff, after having given the single-bill in evidence and an equitable assignment of it, dated November 1st, 1810 by John to James Fetterman, endorsed thereon, proved by the testimony of Ralph Marlin, Esq., attorney-at-law, that he had received the single-bill from James Fetterman, to bring suit upon it against Plummer; that the bill was in his possession about a year, and that while it was in his possession, he had called upon an agent of Plummer to make an arrangement for the payment of the money. He then offered John Fetterman as a witness, who was objected to on the ground that he was the plaintiff in the cause. The court sustained the objection and sealed a bill of exceptions.
Selden, for the plaintiff in error.--The witness offered and rejected was merely a nominal plaintiff, who, before the action was brought, had parted with all his interest in the single-bill on which it was founded, and who, therefore, had neither interest in it nor control over it, and who was not answerable for the costs. There was, consequently, no objection to his being sworn, except that he was a party on the record, which forms no reason for his exclusion. Main v. Ward, 2 Atk. 229; Steele v. Phœ nix Ins. Co., 3 Binn. 306; M'Ewen v. Gibbs, 4 Dall. 137.
Forward, contra, did not deny that a nominal plaintiff might be a witness, provided the court were satisfied that he had no interest, but insisted that his being a party on the record was prima facie evidence of his being interested, and that it lay upon the cestui que use to show that he was not. It did not appear to this court that the witness was destitute of interest, for he might have agreed to be answerable to the assignee, in case he failed to recover against the defendant, or there might have been fraud, and in either case, the witness was clearly interested.
Farrelly, in reply, said that it was incumbent on the party who objected to the witness to show interest. It did not appear to the court below, that he had any interst, or that there was any other objection than his being a party on the record; and this court will not, for the purpose of sustaining his exclusion, presume either fraud, or an agreement to be responsible to the assignee, if he failed in this suit.
The only question is, can the nominal plaintiff, who has assigned equitably an obligation under seal, be received as a witness to support the action. The person holding the beneficial interest in a chose in action, not assignable, or one which is assignable, but where the assignment does not pursue the prescribed form, is regarded as the real party. The instrument was equitably assigned to James Fetterman, before the bringing of the action; the suit was commenced and carried on by him and for his use. If the defence set up had been, that the obligee had received payment, or the consideration...
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