Wolf v. Fink

The opinion of the court was delivered by Rogers, J.

- This was an action of assumpsit to recover the amount of a promissory note given by James W. Stewart, the drawer, and Peter Kennedy and David Wolf, sureties, to Peter and Abner Fink. The cause was • referred to arbitrators, who awarded-in favour of plaintiffs, against James W. Stewart, the drawer, and David Wolf, one of the sureties, and in favour of Peter Kennedy, the other surety. From this award, Wolf, the surety, and one of the defendants,- appealed. No appeal was entered by plaintiff nor by the other defendants. The cause therefore was tried in the name of Peter and Abner Fink, the plaintiffs, against David Wolf, the defendant. The defence before the arbitrators was, that the plaintiffs accepted the note of the drawer, Stewart, and a certain Charles Ensell, in satisfaction of the debt on which suit was brought. And secondly, if rjot in satisfaction, yet that time was given, without'the assent of the sureties, whereby they were discharged. On the trial, the plaintiffs gave in evidence the, joint note, and rested. Whereupon the defendants, after giving in evidence the deposition of Charles Ensell, offered the deposition of James W. Stewart, the drawer of the note, taken since the award of arbitrators against him, with proof that he was a certificated bankrupt. The evidence was rejected by the court, and this is the first error. The defendant requested the court to charge the jury:

1. That Peter Kennedy, one of the sureties, having been discharged in law from all liability on the note, by means of the award of arbitrators in -his favour, unappealed from, that .discharge operates to the release and discharge of the defendants in this issue.

2. That the obligation on which suit is brought being a joint one, and the plaintiff having brought his suit against all the promisors, and the arbitrators having awarded in favour of Kennedy, and against Wolf and Stqwart, it was the duty of the plaintiff to appeal from the award of arbitrators in favour of Kennedy, so that the' ultimate liabi *440 lity of Kennedy to contribute his proportion of the amount recovered should be unaffected by a subsisting judgment in his favour.

3. That a new note having been given by Stewart, with Charles Ensell as endorser, and accepted by the plaintiff, by which time was given, the defendant Wolf is thereby discharged. The answer of the court to these propositions is assigned for error.

- It cannot be doubted, and so the court instructed the jury, that if the last note was given in satisfaction of the first, all the defendants were discharged, and the remedy was on the last note. But if merely time was given, and the one surety assented to the arrangement, and the other did not; and this was the opinion of the arbitrators, as distinctly appears from the award itself, their discrimination was just. It was their duty, as they did, to find an award against the drawer and the surety who agreed to the arrangement, and in favour of the surety who had made no agreement on the subject. Why, therefore, should the plaintiff appeal from an award which he knew to be just, and harass the other surety with a suit, which he was convinced could not be maintained ? The note was joint, of course the suit must be joint ; and I see no other course which the plaintiff could pursue. There i? no" error in the answer of the court to. this point.

But was the court right in ruling out the evidence of the drawer in whose favour' an award unappealed from was made, and who at the time the deposition was taken was a certificated bankrupt. It must be admitted that the witness had not a particle of interest in the event of the suit. Bias he may probably have had; but the exclusion of a witness cannot be rested on that ground. The only tenable objection is, that at the time of the impetration of the writ and the award, he was a parly to the suit. Is this a valid objection to his competency? We are of opinion it is. In Wood v. Connell, 2 Wheat. 542 , it was held, that where in a suit against three partners, one of them is returned non est inventus, he is not a competent witness for the other defendants. It is true the witness was excluded because of interest; and in this essential particular the case differs from the present. The point is new in this state, but in other states it has been repeatedly decided. A party to the record cannot be sworn as a witness if objected to. This was ruled in the case of the Supervisors of Chenango v. Birdsall, 4 Wend. 457 , where one of the defendants was offered as a witness by the plaintiff, and objected to by another defendant. In Schemerhorn v. Schemerhorn, 1 Wend. 119 , it is decided that the party in a cause is allowed to prove the loss of a written instrument, but beyond this the rule is to exclude a party as a witness. In Marsh and Barton, 10 Pick. 57 , where two are jointly indicted for uttering a forged note, *441 and the trial of one of them was postponed; it was held that he could not be called as a witness for the other. And to the same effect is Stein v. Bowman, 13 Peters, 209 , where it is declared that no rule is better established than that a party cannot be a witness in his own cause. In Scott v. Lloyd, 12 Peters, 149 , the court overruled the decision in 1 Pet. C. C. R. 301, where it was held that a party named in the record might be released, so as to constitute him a competent witness. In Wood v. Hayden, 2 Esp. 553, however, it was ruled that where one defendant has let judgment go by default, and the other has pleaded, the defendant who has suffered judgment by default is a good witness for the other defendant, who has pleaded. This decision is in opposition to the cases cited, and their own rule, which is that a party to the record cannot be examined as a witness. This case seems to have been decided on the principle that the witness ceased to have an interest. But the reason for excluding a witness is not on the ground of interest; it arises from considerations of policy, as appears from all the cases. He does not cease to be a party to the record when he suffers judgment by default. This may be, and sometimes will be suffered, (as in case of insolvency,) for the express purpose of being a witness for his co-defendants. Neither should he be allowed to qualify himself by avoiding service of the writ. Great mischief has arisen by allowing plaintiffs to become witnesses, and the mischief became so intolerable that we were obliged from necessity to retrace our steps. It gave plaintiffs an unfair advantage over defendants, and we must avoid running into the opposite extreme by giving encouragement to management on the part of defendants to the injury of plaintiffs. It is better that a just cause should be occasionally lost, than that a ternpia■tion should be offered to peijury. So is the wisest part of the wisest of all prayers, « Suffer us not to be led into temptation.”

Such a rule, as is said in Scott v. Lloyd, 12 Peters, 149 , would hold out to parties a strong temptation to perjury, and -we think it is not sustained either by principle or authority.

Judgment affirmed.