Moore v. Harlan & Hollingsworth

Harris, J. There are two assignments of error in the bill of exceptions, viz: 1st. That the Judge below ordered the amount of damages laid in the declaration filed on the attachment, to be reduced from $100,000 00 to $5,000 00, the amount sworn to as the amount of the claim of plaintiff in the affidavit which he made, on which the attachment issued. 2nd. The exclusion of Moore from giving testimony for himself, because Plollingsworth, one of the firm of Harlan & Hollingsworth, was dead, and therefore Moore was incompetent to testify under exception to the Act of 1866. As to the first point, we deem it a matter of no importance whether the damages laid in the declaration are beyond the amount sworn to in the affidavit or not, as no recovery beyond, in civil contracts, the actual damages sustained by proof, can be recovered. It is difficult to perceive upon principle, how, as the case was proceeding between the parties to the contract, an objection could be made at the instance of a security (no party to the cause,) in a collateral matter growing out of law proceedings to enforce plaintiffs demands. The liability of that security whenever he shall be sued, is the penalty or condition of his bond,, and a judgment for any amount whatever, however large against the party, cannot bind the secw’iiy beyond his enagagment. The second assignment, arises under the Act of the Legislature of 16th of December, 1866. Pamphlet Acts p; 138, entitled an Act to declare certain persons competent witnesses as in the Act set-out. See Code Sec. 3798. This Act was designed to remove the ground of exclusion of persons previously incompetent as witnesses. [625] Parties to a suit before this Act, were incompetent to testify in their own behalf, or in other words could not, at. their own volition, put themselves forward as witnesses to support their suits or defences. This Act swept away that incompetency in all cases whatever, except in the special instances enumerated. Under the first exception, in the following order, the question to be decided here arises. “ Where one of the original parties to the contract, or cause of action, in issue or on trial, is dead, or is shown to the Court to be insane, or where an executor or administrator is a party, in any suit or contract of his testator, or intestate, the other party shall not be admitted to testify in his own favor.” In this case, had there been but two parties to the contract, to-wit: Moore and Hollingsworth; the latter being now dead, the former could not be a witness for himself. It appeared, however, that the contract of plaintiff was with two persons, who were partners, Harlan & Hollingsworth, and that Harlan is alive. The enquiry, in this state of facts, before deciding upon the question of the competency of Moore, should have been, with which of the partners was the contract, for the building of the steam boat, made ? If with Hollingsworth alone, he being dead at the trial, Moore would have, then, been incompetent; but if the contract was talked over, and agreed upon with both, we can perceive no reason, why Moore, in such a case, would not be competent, as a party with whom the negotiation was made, acquainted with its terms, and what transpired, is alive, and capable of being examined as to it. What, if it should appear that the contract, in this case, should have been made with Harlan, the survivor ? Is there any sound reason, then, looking to the spirit of the Act of the Legislature, why Moore should not be a competent witness ? The equality between parties to a suit, contemplated, would not be violated, but enforced, by allowing him to be a witness for himself, in such a state of things. The error of the Judge below, in excluding Moore, when he did, consisted in this, that, upon the fact being admitted that Hollingsworth, one of the parties defendants, was dead, [626] without any preliminary investigation having been made by him, as to -which of the partners the contract was made with, assumed that it was made with Hollingsworth, the deceased partner. It occurs to us, that whenever, as in such a case as this, a partnership is either plaintiff or defendant, and one of such partnership is dead, an examination should be made, when necessary, into the fact, with which one of the partners, the contract was made, or transaction occurred. If it should turn out to have been with the living partner, the adversary party to the record, then, may be a witness. The whole scope and intention of the Act, was to confer equal privileges upon parties to suits; that is to say, to admit those persons who made the contract, or between whom a transaction took place, to give their respective versions of it, in evidence to the jury, leaving the jury, as in other cases, to decide upon the credibility of the testimony. If this was the leading idea which this legislation sought to accomplish, how can a construction of the Act be maintained, which excludes a party plaintiff from his narrative of the contract or transaction, the other party and person, with whom it was actually made or had, being alive, perhaps in the Court room ? The Act of 1866, literally embraces only cases where one person is a party plaintiff, and one person is a party defendant. In a case, within the strict letter of the Act, there can be no necessity for any preliminary enquiry, such as we have indicated, for the exclusion of the party living, to testify as a witness for himself, the other person with whom the contract was made, being dead, is' clear; but we entertain the opinion that the Act was meant to include all cases, whatever, that might arise, and to prescribe a general rule for their government, and, taking the whole Act together, we feel that we are not only authorized, but that it is our duty, to interpret it literally, so as to effectuate the- purposes of the Legislature. Judgmen t reversed.