Leith v. Bush

• Citation: 61 Pa. 395
• Parties: Leith <I>versus</I> Bush <I>et al.</I>
• Decision Date: 11 May 1869
• Court: Pennsylvania Supreme Court

61 Pa. 395

Leith versus Bush et al.

Supreme Court of Pennsylvania.

March 18, 1869.

May 11, 1869.

March 18th 1869.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the Court of Common Pleas of Northampton county: No. 208, to January Term 1869 W. W. Schuyler and E. J. Fox, for plaintiff in error.—As to the rejection of Shimer and Apple: Act of April 16 1840, § 6, Pamph. L. 411, Purd. 425, pl. 18; Barnet v. School Dir., 6 W. & S. 46, 1 Greenl. Ev. 386-390; Orphans' Court v. Woodburn, 7 W. & S. 166; McDowell v. Simpson, 3 Watts 135; Gilpin v. Howell, 5 Barr 51; Braine v. Spalding, 2 P. F. Smith 248; Dodge v. Bache, 7 Id. 421; McCredy v. Schuyl. Nav. Co., 3 Whart. 441; Juniata Bank v. Beale, 1 W. & S. 230; Scott v. Wells, 6 Id. 369. As to Bush: Act of March 31st 1860, § 181, Pamph. L. 425, Purd. 247, pl. 190; Com'th v. Shaver, 3 W. & S. 338. As to the sufficiency of the bond in form: Keeton v. Spradling, 13 Miss. 321; Johnson v. Steamboat, Id. 539; Stone v. Wilson, 4 McCord 203; Fulton's Case, 7 Cowen 484; Knisley v. Shenberger, 7 Watts 193.

H. Green (with whom was O. H. Meyers), for defendant in error.—As to the rejection of Shimer and Apple: Dickinson v. Linn, 12 Casey 431, 1 Greenl. on Ev. § 396; Hodson v. Marshall, 7 C. & P. 16; Emerton v. Andrews, 4 Mass. 653; Kerrison v. Coatsworth, 1 C. & P. 645; Wake v. Lock, 5 Id. 454; Gilpin v. Howell, 5 Barr 51; Lothrop v. Wightman, 5 Wright 297. As to Bush — there may be nothing but a presumption that he had endured his sentence: Lawson v. The Ohio & P. Railroad, 1 Grant 329; Bickel v. Fasig, 9 Casey 465, 2 Archb. Crim. Pr. & Pl. 560. As to sufficiency of the bond: Bethune v. Dozier, 10 Geo. 235; Manufacturers' Bank v. Cole, 39 Maine 188; Adams v. Hedgepeth, 5 Jones (N. C.) 327, Hurlstone on Bonds, 92, 1 Shep. Touch. 56, 367, 375, Perkins 158.

The opinion of the court was delivered, May 11th 1869, by READ, J.

The bond in this case was drawn in the name of one defendant, "I, William H. Bush," and purported to be signed and sealed by him and the four other defendants. This is a joint and several obligation of the five defendants: Knisley v. Shenberger, 7 Watts 193; Parks v. Brinkerhoff, 2 Hill 663; Smith v. Crooker, 5 Mass. 538, 540; Ex parte Fulton, 7 Cowen 484. "Thus, if the words are `I promise to pay,' and there are many promissors, it is the several promise and the joint promise of all:" Parsons on Notes and Bills 251.

George Shimer was called as a witness by the plaintiff, and on his voir dire testified that he was a school director and officer of the board of the school district of Saucon township. The plaintiff thereupon proposed to examine the witness in chief, but the defendants, by their counsel, objected on the ground that the witness might be liable to the district in the event of a failure to recover on the bond, which objection was sustained by the court and the evidence rejected.

The manner of the objection was hasty, as it did not permit the plaintiff to state what he proposed to prove by the witness, and the decision of the court entirely prevented it, by ruling that he could not be a witness for any purpose.

The bond, on its face, was a valid one, and nothing had been alleged or proved to show it was otherwise. It is, however, clear that the remote contingency of possible liability on the part of the witness was not such an interest as to render him incompetent to testify. He was therefore improperly rejected, as also was William Apple.

As this cause must go back for trial, it is not necessary to express a positive opinion as to the rejection of William H. Bush as both sides will be prepared to prove his actual s...