Semple v. Callery

Opinion by Mb. Justice Fell, The court, at the time a witness was called, heard testimony on the question of the good faith of an assignment by which the witness had divested himself of all interest in the controversy, and permitted him to testify. At the close of the testimony the court was requested to submit to the jury the same question on which it liad passed, and to instruct them to disregard the testimony of the witness if they found that the assignment had not been made in good faith. The 6th section of the Act of May 23, 1887, P. L. 158, provides that a person incompetent to testify as a witness because of interest may become fully competent “by a release or extinguishment, in good faith, of his interest, upon which good faith the trial judge shall pass as a preliminary question.” It was not intended by this provision to make the decision of the court subject to review by [102] the jury, and to change the long established rule of evidence that it is the province of the court finally to decide preliminary questions of fact upon which the admissibility of testimony depends. Whether a release has been executed in good faith is a question preliminary to the question of competency, and as such it is decided as a preliminary question, but its decision is not preliminary merely to a second decision by the jury. The competency of a witness, as to questions of both fact and law is to be determined by the court. The remaining assignment relates to the refusal of the court to affirm the defendants’ second point, and to direct the jury that there could be no recovery because of the bar of the statute of limitations. The transaction does not appear to have been closed so as to give a right of action more than six years before the bringing of the suit. The time of the delivery of the bonds was extended by agreement, and the seller was allowed to retain them to be used by him as collateral. This agreement remained in force until his death. The defendants cannot now take advantage of the fact that the bonds had not been used in accordance with the agreement, but had been improperly converted, without proof that the buyer had notice of the deception practiced: Hughes v. Bank, 110 Pa. 429. The judgment is affirmed.