Deardorf v. Hildebrand

The opinion of the court was delivered by Rogers, J. — There is but one point which we ai’e called on to consider. Henry Picking executed the bond on which suit is brought, with the present defendant as his surety; and the defence is, that in consequence of a request which he made to Deardorf to proceed against Picking, &c., he, Hildebrand, is discharged from his liability. The plaintiff gave in evidence a judgment to the April Term, 1824, on a note,- with warrant of attorney from Henry Picking to Jacob Hildebrand, dated the 30th of March, 1824; Fieri Facias, and money made to the amount of one hundred and eighty-one dollars and ninety-nine cents; and then offered to prove, that the note was executed by Henry Picking in the absence of Jacob Hildebrand, and that Henry Picking gave it to Samuel Picking, the witness, who is also a witness to the note; and further, offered to prove what Picking said at the time, was the consideration of the note, and what monies it was intended to secure Hildebrand: That it was brought to the office by the witness, and judgment entered; it was then delivered to the said Hildebrand by the witness: That Hildebrand proceeded on the said judgment, and collected between two and three hundred dollars. This evidence was rejected, because it was the declarations of Picking in the absence of Hildebrand, not under oath, and which Picking was competent to prove. The defence of Hildebrand, resting on his character of surety, the evidence offered, was pertinent to the issue, because, if Hildebrand received the money on account of his suretyship, he did not stand in the situation of a surety, about to pay money without consideration, but must be considered a principal to that amount. The note itself, does not show the object of giving it. This must be made out by testimony aliunde, and this may well be done, by the declarations made at the time the transaction took place. I look [227] Upon this as a continued transaction from the time of the execution' of the note, until it was received, and acted on by,Hildebrand. By accepting the judgment, issuing execution, and collecting the money, he affirmed all the previous acts. The declarations of Picking, although in the absence of Hildebrand, are properly part of the res gesta, and as such, are competent evidence, according to the uniform current of authority. It is no answer, to say, that Picking was a competent witness, and as such examined in the cause; for this answer would be equally good, if a valid one, whether Picking were present or not. The plaintiff might have proved the object of the bond, by the oath of Picking, but' he, is not bound to do so. The plaintiff has two ways of proving the*same fact, each of which is equally good; and it 'is for him to determine, whether he will resort to one or the other, ór both modes of mailing out his case. The declarations made at the time of doing a particular act, may generally be relied on with the utmost safety, as against the persons who were engaged in the transaction. Individuals do not often commit themselves, against their own interest. I look upon this precisely in the same vvay, as if Hildebrand was present.at the time the declaration was made. It was made in the course of the business, and Hildebrand acting on it, is bound by the declarations of Picking. 'As the Court of Common Pleas rejected the evidence, we are of opinion there was. error, and that judgment be reversed, and a venire facias de novo, awarded. Judgment reversed, and a venire facias de novo awarded.