Lacock v. Commonwealth, to Use

• Decision Date: 03 January 1882
• Citation: 99 Pa. 207
• Parties: Lacock <I>versus</I> Commonwealth to use, etc.
• Court: Pennsylvania Supreme Court

99 Pa. 207

Lacock versus Commonwealth to use, etc.

Supreme Court of Pennsylvania.

November 17, 1881.

January 3, 1882.

November 17th, 1881.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

ERROR to the Court of Common Pleas of Washington county: Of October and November Term, 1881, No. 310.

McCracken (with whom were McIlvaine and Gow), for the plaintiff in error.—Had the suit, at time of trial, been against Lacock and the administrators of Hughes, the plaintiff would have been incompetent, beyond all question, as he would then have been excluded by both the spirit and letter of the law: Karns v. Tanner, 16 P. F. Smith 297; Hanna v. Wray, 27 P. F. Smith 27; Evans v. Reed, 28 P. F. Smith 415; Pratt v. Patterson, 31 P. F. Smith 114; Evans v. Reed, 3 Nor. 254; Brady v. Reed, 6 Nor. 111; Hess v. Gourley, 8 Nor. 195.

If, by striking the name of Hughes, who was principal on the bond on which the action was brought, from the record, and allowing the action to stand against the surety alone, the plaintiff is enabled to recover a judgment against him on testimony which would be inadmissible in an action against the estate of the deceased principal, or in an action in which the administrators of the principal were joined with the surety, then the law is evaded; and the estate of Samuel L. Hughes, deceased, is thus indirectly charged with what could not be recovered in a direct action; because, in an action by Lacock against the administrators of Hughes, upon the contract of indemnity which the law will imply as made the moment the surety's obligation is entered into (Ward v. Henry, 5 Conn. 595) the judgment recovered against him, would be evidence against them: Clark v. Carrington, 7 Cranch 322; Drummond v. Prestman, 12 Wheat. 516; Whart. on Ev. § 770; and conclusive evidence, if notice has been given to defend the action: Greenleaf on Ev. § 188; Biglow on Estoppel, 65; Duffield v. Scott, 3 Term R. 374; Lloyd v. Barr, 1 Jones 42; Hanna v. Wray, 27 P. F. Smith 27; Barr v. Greenawalt, 12 P. F. Smith 175.

It will not do to say that the plaintiff was a competent witness under the Act of 1869, because Hughes's deposition was taken and read in evidence. The plaintiff was not put on the stand to rebut or deny anything Hughes had testified to, but to make out his own case before it could be known whether the deposition would be read or not.

Even if the deposition of Samuel L. Hughes had been read in evidence before the plaintiff offered himself as a witness, he still would have been incompetent. The third section of the Act of April 15th 1869, authorizes the testimony of all witnesses made competent by that act to be taken "by deposition or commission issued as the case may require." If the plaintiff wished to perpetuate his own testimony, his only way was to follow the provisions of that act by having his deposition taken while all the parties were living, and there was a chance for cross-examination: Pratt v. Patterson, 31 P. F. Smith 114; Evans v. Reed, 3 Norris 254.

Defendant in error did not appear, and presented no paper book.

Mr. Justice PAXSON delivered the opinion of the court, January 3rd 1882.

This record presents the single question of the competency of the plaintiff below as a witness. The suit was an action of debt upon a bond given by Samuel L. Hughes, who was administrator of Samuel Riggle, deceased, and Oliver Lacock, who joined in the bond as surety of Hughes. The bond was conditioned for the proper application of the proceeds of certain real estate sold by the administrator in pursuance of an order of the Orphans' Court. Hughes, the administrator, was served and appeared by counsel. His deposition was subsequently taken, after which, and before the trial of the case, he died, and upon motion his name was stricken from the record, leaving the suit to stand against Lacock, the surety, alone. Upon the trial the plaintiff was admitted as a witness to prove that he had never received his distributive share of the estate, and...