Mevey v. Matthews

• Decision Date: 15 September 1848
• Citation: 9 Pa. 112
• Parties: MEVEY <I>v.</I> MATTHEWS et al.
• Court: Pennsylvania Supreme Court

Page 112

9 Pa. 112

MEVEY v. MATTHEWS et al.

Supreme Court of Pennsylvania.

September 15, 1848.

IN error from the District Court of Allegheny.

Hampton, for plaintiff in error, cited 11 Conn. Rep. 347; 6 John. C. Rep. 204; 1 Stew. & Port. 17; 1 Taunt. 378; 1 Binn. 395; 2 Ad. & Ell. 732; 2 W. & S. 172; 8 Ib. 87; 1 W. 270; 1 Wend. 119; 4 Ib. 457.

Wood, contrà, cited 5 Conn. Rep. 94; 1 Barr, 440; 1 Yeat. 144; 15 Johns. 223; 1 Greenl. Ev. 354; 3 S. & R. 402; 3 Whart. 589.

Sept. 15. ROGERS, J.

There is no reason for any exception to the testimony, on the ground of interest; for the plaintiff offered to prove by the witness that he was the principal, and the other defendants sureties. His evidence is against himself, because it throws the debt on himself as the principal, without the right of contribution from the other defendants, who were but sureties. The case, therefore, does not come within the principle ruled in Miller v. McClenachan, 1 Yeat. 144, cited; where it was held, that in a suit against partners, one of the defendants, though willing, cannot prove the partnership. That case is put on the ground of interest; for, as is there said, he would exonerate himself of part of a partnership debt. What, then, is the objection to his competency? It is said he is a party to the record, and, as such, incompetent to testify. And for this principle, Schermerhorn v. Schermerhorn, 1 Wend. 123, and The Supervisors of Chenango v. Birdsall, 4 Wend. 453, and other cases, are cited. But those cases only apply where the party suing and the party sued call them to testify in their favour. In these cases, they are excluded on grounds of public policy, independent of the question of interest. They do not apply where the opposite parties wish to avail themselves of the testimony, and where they are willing to testify. And this distinction is plain on reason and authority. It is settled, that a party has a right to examine his adversary, if the latter voluntarily consent to be examined, and is called against his interest. The party on the record is permitted to testify, because he waives his privilege, is willing to speak the truth, though against his interest, and voluntarily renounces the protection which policy as well as justice would otherwise have afforded him. The court decided, in Johnson v. Blackman, 11 Conn. Rep. 347, that where a party to a suit who has suffered judgment by default, waives the objection, and consents to be examined, and is called against...