Welsh v. Cooper

• Decision Date: 09 June 1848
• Parties: WELSH <I>v.</I> COOPER
• Court: Pennsylvania Supreme Court

8 Pa. 217

WELSH v. COOPER

Supreme Court of Pennsylvania.

May 31, 1848.

June 9, 1848.

IN error from the Court of Common Pleas of Perry county.

May 31.

COPYRIGHT MATERIAL OMITTED

Watts, for plaintiff in error.—The question tried by the court and jury was the ownership of the goods which had been levied and sold by the sheriff. They composed a store which had

been kept by the plaintiff for two years. Andrew Welsh, the witness, had been the clerk in that store. His character for truth had been attacked. The evidence of the books of entry kept in that store, and by the witness, should have been received, for two purposes: to show the manner in which the business had been done and conducted, by whom the goods had been purchased, and by whom sold; and they were clearly evidence to corroborate the testimony of the witness whose veracity had been attacked. But that they were evidence, we think is expressly settled in the case of Welch v. Speakman, 8 W. & S. 257.

Graham and Reed, contrà.—Were the books kept by Elizabeth Welsh? Evidence to prove that she owned the store. Books kept by a tenant are not evidence to show the relation which existed between landlord and tenant, being offered by the landlord to show that the tenant was his agent and not his tenant: Townsend v. Kerns, 2 Watts, 180. Books of original entries are primâ facie evidence of sale and delivery of goods from necessity, but cannot be admitted as evidence of a collateral matter in which a third party is concerned: Juniata Bank v. Brown, 5 S. & R. 231; Bovard v. Wallace, 4 S. & R. 499; Nussear v. Arnold, 13 S. & R. 323.

June 9. COULTER, J.

Jacob Weibley was the principal in the bond by which the defendant was indemnified for levying on the store in question. The return to the execution is a "levy on store goods in the store-room of Elizabeth Welsh," and the indemnity was for selling any goods under the direction of the said Jacob Weibley and William Power, as the property of James Welsh. The store in question was found in the possession of Elizabeth Welsh, and sold under this indemnity. If any trespass was committed, Jacob Weibley was a principal in that trespass, and equally answerable to the plaintiff. All persons who order or procure a trespass to be committed, and indemnify others for doing it, or incite them to do it, may be sued as principals. Jacob Weibley having directed the act in this case, adopted it, and bound himself to be responsible for it, was a party in the trespass, if a trespass was committed: and that is the very issue which was to be tried in this suit. Now, although he was not joined in the suit, the plaintiff could not have compelled him to testify, as it would have gone to establish his own liability as a party. His declarations, therefore, were evidence when against his interest. This point was ruled in Harriman v. Brown, 8 Leigh, 697, where it was resolved that the admissions of a person who could not be compelled to testify, and whose declarations are against his own interest, ought to be received. It is not...