Orphans' Court v. Woodburn

The opinion of the Court was delivered by Rogers, J. James H. Devor and Charles Barnitz, witnesses for plaintiff, were excluded by the court on the ground that they had such an interest in the suit as to subject them to costs in the event of a judgment for the defendant. This decision is made on the authority of Gallagher v. Milligan, (3 P. R. 178). In that case it is ruled that where a person is entitled to a part of the money sued for at the commencement of the suit, he has such an interest in the recovery, although his name does not appear on the record, as to render him liable to costs; that, in effect, he is a party to the suit at its inception, and cannot afterwards discharge himself without the consent of the defendant. That, however, is not the case in hand. When the suit was commenced, the Commonwealth [166] was the only party, who, be it observed, are not bound to pay costs. But afterwards it appears that Devor and Barnitz became interested by assignment from the Commonwealth, which interest before the termination of the suit they assigned, Devor to Mary Devor, and Barnitz to George W. Hitner. The question therefore is, were they liable to costs, and to what extent'! It would be carrying the principle a great way to hold them responsible beyond the costs actually incurred during the continuance of their interest; but whether costs were made during that time does not appear, and this of itself would be cause for reversing the j udgsnent. But are they liable for any costs whatever ? and we are inclined to think they are not. This is a new case, and we think that the principle is carried far enough in Gallagher v. Milligan; it vrould be inconvenient, and would produce difficulty in the apportionment, to extend it further than has been already done. At the time Barnitz was offered as a witness, he had no interest in the suit, having assigned his claim to George W. Hitner for a valuable consideration, without any idea, so far as appears, of becoming a witness. The next question is as to the rejection of the testimony of Mr Hepburn. Mr Hepburn was the counsel of' the Commonwealth, who, it is alleged, entered into an agreement with Harper, Devor and Barnitz, by virtue of which the defendant .(who is one of the sureties of Harper) contends he is discharged from the payment of the debt. It is said he is interested, because, if the judgment be for the defendant, he the witness is liable to an action at the suit of the Commonwealth. The arrangement alleged by the defendant was, that in consideration that Devor and Barnitz would pay the Commonwealth $2000 on account of the debt due from Harper, and would become personally liable for the residue of the debt, Mr Hepburn, as counsel, agreed to stay proceedings against Harper. The effect of the agreement will be to discharge the defendant and Charles B. Penrose, who were the sureties for Harper, from all liability on their bond. In considering this question, I shall take it for granted that the attorney had authority, either general or special, to make the agreement; and if this be so, I see no objection to his proving the nature and extent of it, or whether any agreement whatever was entered into. lie would, at all events, be only answerable for the abuse of his authority; and we are not at liberty to suppose that he was wanting in good faith or skill, without any proof whatever, merely for the purpose of excluding him as a witness. A contingent liability is no ground for excluding a witness. An agent is competent to prove a parol authority to make a lease. Gonagle v. Thornton, (10 Serg. & Rawle 257). The general rule is in favour of the competency of an agent as a witness, unless in cases where the principal is sued on account of the negligence of the agent. In such cases the agent cannot be a witness for the prin [167] cipal, because, in the event of a recovery against the principal, the agent becomes liable to indemnify the principal; and the judgment against the principal would be evidence against the agent in an action by the principal for indemnity. Next, as to the power of the Orphans’ Court to sell lands by virtue of the 17th section of the Act of the 29th March 1832. In that section it is enacted “ That compliance with an order or decree of the Orphans’ Court may be enforced by attachment or sequestration, or, in case of a decree for payment of money against a party who has appeared, the complainants may have a writ of execution, in the nature of a fieri facias, which writs may be allowed by the court, or any Judge thereof in vacation.” It is also provided that writs of jfieri facias shall be directed to and executed by the sheriff or coroner, as the case may require, of the proper county; and the proceedings thereon shall be the same as on writs of fieri facias issued by the Courts of Common Pleas of the same county. And in the 29th section of the same Act it is further provided that certified copies or extracts of the amount appearing to be due from or in the hands of an executor, administrator or guardian, on the settlement of their respective accounts in the Orphans’ Court, filed by the prothonotary at the instance of the party, contituted a lien on their real estate, from the time of such entry until payment and satisfaction. And this may be enforced by action of debt, scire facias, See. The intention of the Legislature would seem to have been, to give the parties interested, when there was a decree for the payment of money against an executor, administrator or guardian, a complete security; and this is effected by authorizing them to issue a writ in the nature of a fieri facias, by which their personal property may be reached, ancl, in addition, by authorizing them to file the same in the Court of Common Pleas, by which it becomes a lien on the real estate. It is therefore obviously unnecessary, to cure the mischief intended to be remedied, to extend the remedy further than the necessity of the case requires; for, by pursuing the Act according to its letter, and as I believe its spirit too, all the estate of the debtor may be made available for payment or security, whether it be real or personal. Why then extend the remedy in the Orphans’ Court further than to enable them to levy and sell the personal property 1 This will be attended with no inconvenience; but if the general expressions of the Act are made to embrace the sale of real estate also, a great deal of judicial legislation, without any necessity for it, must be the result. Thus, the Act provides only for a writ in the nature of a fieri facias; and although lands, which are chattels for payment of debts, may be seized under that execution, yet nothing is said of an inquisition, and the manner of proceeding under it. No venditioni exponas is authorized, except by implication; nor, when [168] sold, is there any direction for the acknowledgment of the sheriff’s deed. Nor is anything said of a testatum, or the manner of proceeding under it. All this is left to legal adjudication. We are therefore of opinion that the Legislature did not intend that the land of debtors should be sold by the Orphans’ Court, but personal property only by virtue of the fieri facias. Judgment reversed, and venire de novo awarded.