Strawn v. Shank

Mr. Justice Paxson delivered the opinion of the court, May 25th, 1885. The only serious contention in this case is as to the com [262] petency of the witness, Levi L. Jacoby. We have no difficulty in reaching the conclusion that he was not a party to the record within the Act of 27th March, 1865, P. L. 38, or the second section of the Act of 15th April, 1869, P. L. 30. Jacoby had assigned the mortgage to Strawn. The latter had the right to sue in his own name without noticing Jacoby. . That he sued as “ assignee of Jacoby ” is without significance. The word.s quoted might have been stricken from the record. They were mere surplusage. Nor has the first section of the Act of 15th April, 1869, any bearing upon the question for the reason that this suit was brought by an administrator, and the witness was the assignor of the mortgage sued upon. His competency must be determined by the law as it stood prior to the passage of either of the above Acts of Assembly. The objection was not that the witness was incompetent generalfy. It was limited to his testifying to anything that occurred during the lifetime of Joel W. Strawn. He was admitted to testify that Strawn authorized him to receive from the purchaser of the land the money due on the mortgage ; that he did so receive it, and entered satisfaction on the record of the mortgage; that he retained the money with,the consent of Strawn and paid him interest thereon. It also appeared that when Jacoby assigned the mortgage to Strawn he guaranteed the payment of the money due thereon. The most that can be urged against Jacoby’s competency is that he was an interested witness. We may safely concede that he was. and yet sustain the ruling of the court below. His legal interest was on the side of the plaintiff, and he was called by the defendant. He was called to testify and did testify directly against his interest. It was to the benefit of the witness that the plaintiff should recover on the mortgage and thus relieve him upon his guarantee. His testimony defeated such recovery and left him liable, either upon his guarantee, or as the debtor of Strawn’s estate for the money in his hands. Either way his liability was absolutely fixed by his own evidence. A party to the record may be called by the adverse party; and if he is willing to testify, may be examined. This was law before the passage of am^ of the Acts of Assembly above cited, and it is law now. His declarations were always evidence against himself, much more so is his evidence uuder bath, if he is willing to give it: Solms v. McCulloch, 5 Barr, 473; Packer v. Noble, 7 Out., 188. Interested witnesses are governed by the same principle. If called to testify against their interest they have always been competent. This is .familiar law; Johnson v. Ramsey, 16 S. & R., 115; [263] Hawthorn v. Bronson, Id., 269; Quinlan v. Davis, 6 Wharton, 169; Ralph v. Brown. 3 W. & S., 395; Helser v. Pott, 3 Barr, 179. Am was tersely said, by Chief Justice Gibson in Ralph v. Brown: “A witness may choose to testify against, his interest, and who is to prevent him?” The second assignment alleges that the learned judge erred iu not stating correctly the evidence of Mr. Jacoby in bis charge to the jury. This is a mere criticism. The learned judge gave the language of the witness substantially. The latter said: “ I informed him (Strawn) that I would get the money on this mortgage, and enter satisfaction; lie told me of course I should keep the money; he liad no use for ft, and if I would keep it he would let me have it at five per cent.” This fully justified the language of the court. We find no error in this record. Judgment affirmed.