McAdams' Executors v. Stilwell

The opinion of the court was delivered by Bell, J. There is nothing in the first, fourth, fifth, sixth and seventh errors. Proof, by one of the attesting witnesses, of the due execution of the indenture, was sufficient to enable the plaintiff below, to put it in evidence. It is unnecessary to call all the subscribing witnesses to an instrument to make it competent: 1 Cbeenleaf, sec. 569. But were this otherwise, the rule, of Court spread upon the paper book of the defendant in error, requiring a plea of non est factum to be verified by affidavit, is a sufficient answer to the objection. There was here no such verification. The admission in evidence of the indenture was not objected to at the trial, for any supposed variance between it and the narr. Nor does the point seem to have been made, that the plaintiff could not maintain the action in his name alone, upon the supposition that his father Stilwell, was a party to the covenant relied on. But had it been, Velde vs. Levering, 2 R. 269, and Leech vs. Agnew, 7 Barr. 21, furnish a complete refutation of this position. Those cases settle that a father, guardian, or other prochein ami, who in Pennsylvania executes an indenture of apprenticeship, under our statute, in evidence of their assent, are not to be regarded as parties bound for the performance of the covenants. These are considered as the undertakings of the apprentice, and not of those whose assent, to this disposition of himself, is necessary to give validity to the instrument by which the engagement is effected. The reply to the seventh error is conclusive. The death of the defendant below was not suggested upon the record, until after the rendition of the judgment. This assignment of error, therefore, calls upon us to pass upon [96] a state of facts, of which the record furnishes no information.— We are, consequently, not required to say what the rule would he, were the facts sufficiently ascertained. I think, however, it may be safely asserted, they would furnish no ground for interfering with the verdict, though perhaps they might be esteemed a reason for disturbing the judgment. But even this I do not mean positively to aver. We are precluded from entering upon any examination of the third error, which complains of the charge of the Court. A rule of the Court of Common Pleas of Montgomery county requires “ that exceptions must be taken to the charge of the Court, before the verdict is received,” and this is in accordance with correct practice, as indicated in Holden vs. Cole, 1 Barr., 303. The President of the Court below certifies that no exception was taken to the charge, either on the trial or afterwards. It is, therefore, not within our province to review it. Thus far nothing is perceived which calls for interference with the judgment rendered below. But after reflection and examination of the authorities, we are satisfied the court fell into mistake in rejecting the proffered repetition of the late Edward Sweeny’s testimony, before the referees, as reduced to writing, by the defendant’s counsel. It is conceded that, generally, what a deceased witness said, on a- former trial of the same cause, may be thus proved. But the court rejected the evidence, because, as it was thought, the submission under which the cause went to arbitrament, was merely null, for which reason it was set aside on exceptions filed; from whence it results that what took place before the referees, was- coram non judice, and therefore ineffective for any purpose. In considering this proposition, it may be admitted that to warrant the introduction of secondary proof, of the character here proposed, the jurisdiction of the tribunal before which the dead witness testified, must be established; since without the power to determine, the ancillary right to investigate, per testes, cannot exist. But it must also be agreed that if, in setting aside this award, the court proceeded upon an erroneous assumption of the invalidity of the submission, the evidence offered ought not to be affected by the mistake ; for it owed its competency, not to the continued existence of the award, but to the original power to make it. Thus, such testimony is available, after a new trial granted, 2 Starkies Ev. 327 ; or a judgment reversed; Noble vs. McClintock, 6 Watts & Serg. 58, neither of which subsequent facts is permitted to impeach it. In estimating its sufficiency, therefore, we are to enquire, on original ground, irrespective of the mere destination of the award. The record informed us that four exceptions were taken to this award, three of which touched the sufficiency of the submission. We have been favored with a copy of the opinion, delivered on the [97] hearing of the rule to set aside the award, and from it we learn, that the rule was made absolute, because it was thought the submission was one unknown to our law. Though an action at law was pending, to which the submission expressly referred, it was said it could not be recognized as under the old act of 1705, or the more modern one of 1836, because these required a consent, expressed in the agreement to refer, that it should be made a rule of court. Besides, these statutes require an approval of the award by the court; whereas this agreement stipulated only for the action of the Prothonotary, in entering judgment; that it could not be taken as under the second and succeeding sections of the act of 1806, for that also required the submission to be made a rule of court; and fourth, that the award should be under seal; a form not exacted in this instance. But all our adjudications on this subject shew these objections to be too refined. Our policy has been to encourage the settlement of litigation, through the intervention of roferrees; a domestic tribunal, which long experience had shewn to be very useful and appropriate, in a large variety of cases. The courts have therefore refused to listen to merely formal objections, whether directed against the submission itself, or addressed to the award. Herman vs. Freeman 9, Serg. & Rawle 9. It was accordingly long ago settled, that the insertion of a formal agreement to make the submission a rule of court, is not necessary to its efficiency, under either the acts of 1705 or 1806, whenever an action is pending, to which the submission makes reference. Such consent will be implied, whenever the intent of the parties is apparent, and a simple reference to the pending action is held to make it so in the absence of a contradictory provision. It is unnecessary to run over all the cases that shew this. It may suffice to refer to Harris vs. Hayes, 6 Bin. 422, Large vs. Passmore, 5 Serg. & Rawle 51, Bemus vs. Quiggle, 7 Watts 364, where' Mr. Justice Huston said he and his brethren thought they had never in fact known an instance, where it was expressly stated the reference was under a rule of court; that as the parties had a right so to refer, and could not be restrained by the court, it would be idle to ask for such a rule, and it never was asked; and in Kimmel vs. Shank, 1 Serg. Rawle 24, where a pending cause was referred to three men “ on whose decision, or a majority of them, judgment to be entered by the Prothonotary,” it was held, that, as this reference could not be, under the compulsory arbitration law, it must be taken to be within the act of 1705. To these may be added Okison vs. Flickinger, 1 Watls & Serg. 257. There, though the court thought the award could not be supported, as within the provision of the act of 1806, because the submission did not expressly stipulate for a rule of court, there would be no difficulty in sustaining it, as within the act of 1705, which the act of 1836 has re-enacted, had the [98] award been signed by all the referees. In the particular under consideration, there is in truth no difference in the provisions of these two statutes, as the court of Common Pleas seems to have supposed. The same liberal spirit, which induced the courts to overlook mere form, in giving effect to the elder, is the governing sentiment, when construing the younger act. It is true that, in Benjamin vs. Benjamin 5 Watts & Serg. 562, a case where at the time of the submission, there was no pending action, nor any agreement to enter one, it was thought the award made, could not be brought within the act of 1886, for want of a consent rule. But I think all the prior determinations shew this authority to be inapplicable where there are actions in court to which the submission refers, or a simultaneous agreement to commence one, for then there is a plain implication of an intended rule. And according to Massey vs. Thomas, 6 Bin. 333, the same implication obtains under the provisions of the act of 1806. As to sealing the award it is dispensed with by the act of 28th March, 1808; Dunlop 257. Without, therefore, any particular straining, I am of opinion the award in question might have been upheld, under either of the statutes I have mentioned. But if it be granted that this could not have been done, why was it not good as an agreement of the parties, entirely within their power to make ? That our courts will give effect to an award made, under such submission, according to its terms, the case of Gallup vs. Reynolds, 8 Watts 424, is an express authority founded in strong reason and sound policy; and so, I take it, unimpeachable. From what I have said, it will be perceived, we are of opinion the evidence rejected ought to have been received. For this error the judgment must be reversed. Judgment reversed and a venire de novo awarded.