Shaffer v. Clark

Mr. Justice Mercur delivered the opinion of the court, — 98 — This was an action of scire facias on a judgment. The judgment was entered on a judgment-note, signed by one Yarney and by Shaffer. The latter claimed that he signed as surety. He therefore requested the court to instruct the jury, “if Shaffer was a surety for Varney, and, after the debt became due, gave notice to plaintiff to collect it, and that if he failed to do so, he, Shaffer, would no longer be bound as surety, Shaffer would be discharged in law, if plaintiff neglected to collect the debt; and the burden of proof is on the plaintiff to show that it could not, by due diligence, have been collected from Varney after such notice was given.” The learned judge conceded this point to be correct as a legal proposition, and impliedly admitted that if the evidence of Shaffer was sufficient to establish the fact, he would submit that evidence to them, but declined to affirm it. He assigned as a reason for his refusal that the only evidence of the notice was “the naked, unsupported oath of the defendant,” and it was “positively contradicted by the oath of the plaintiff,” and therefore he concluded “ there is no sufficient evidence upon which to submit to you the question of notice.” This instruction fails to give due effect to the Act of 1869, which permits parties to testify in their own behalf. Within the class of cases prescribed by the statute, “no interest nor policy of law” excludes them. Their legal disqualification is thereby removed. They are competent witnesses for all purposes. Being thus made competent, the court cannot withhold their testimony from consideration of the jury. It was well said by Mr. Justice Gordon, in Prowattain v. Tindall, 30 P. F. Smith 295, “ the act does not require that the evidence of the party in interest, though the only evidence on his side of the case trying, should be corroborated in order to make it effective.” The fact that in a common-law action, one party swears in-direct conflict with the other party, no more authorizes that evidence to be withheld from the jury than the conflicting evidence of two disinterested witnesses. The court passes on the competency of a witness, but the jury on his credibility.' They may believe one witness and discredit another, whether interested or disinterested. Hence, in the case of Flattery’s Appeal, 7 Norris 27, we sustained a decree in divorce upon the testimony of the wife, wdiich was substantially contradicted by the husband. The first, second and third assignments are sustained. There is no error in the portion of the charge covered by the thirteenth assignment. As the payment of usurious interest after a debt becomes due is not a valid consideration for an agreement to give time (Hartman v. Danner, 24 P. F. Smith 36), we discover no fact to sustain the remaining assignments. Judgment reversed, and a venire facias de novo awarded.