Alcorn's v. Cook

1. Where two parties execute a joint note and subsequently one of them dies and suit is then brought on the note against the survivor and the executor of the deceased maker, said survivor is not a competent witness on the part of the plaintiff to prove the execution of the note by the deceased, inasmuch as his testimony would have the effect of relieving him from one-half the obligation in suit. 2. Even if said survivor was principal on the note and the deceased but surety, the former being personally a party to the record cannot be made a witness against the estate of the deceased without the consent of its representative. 3. The provisions of the Act of March 27th 1865, Pamph. L. 38, enabling a party in any civil proceeding to compel the opposite party to testify on his behalf are governed by the proviso of the Act of April 15th 1869, Pamph. L. 30. They have, therefore, no application to suits by and against executors and administrators. 4. Where in an action against-an executor upon a note of his decedent, the plaintiff calls as a witness to prove the execution of the note, the husband of a daughter and devisee of the decedent, said witness is incompetent to testify inasmuch as his evidence would be contrary to his wife’s interest, and this though there is no evidence tending to prove, that decedent’s estate is not entirely solvent and sufficient, notwithstanding the claim in suit, to satisfy the devise to the witness’ wife. 5. Where a party has parol authority to sign a note for another, the power is well executed though a seal be appended to the maker’s name, and though the note be not signed in his presence. 6. Where an action is brought on a joint obligation one of the obligors whereof is dead, judgment may be entered against the executor of the deceased obligor notwithstanding the fact that his joint obligor is at the time in full life.

Error to the Court of Common Pleas of Westmoreland county: Of October Term 1882, No. 141. Debt, by James Cook against Ii. J. Branthoover and John McCauley, executor of the last will and testament of John Alcorn, deceased, upon a certain single bill under seal, alleged to have been given to said Cook by Branthoover and Alcorn jointly. Defendant Branthoover made no defence. McCauley, executor, hied a plea non est factum testatoris. On the trial, before Hunter, P. J., the'jury was sworn as to McCauley executor only. The plaintiff then offered to prove by defendant Branthoover the execution of the instrurdent. Defendant objected for the following reasons: “ 1st. Under the Act of 1869, the witness is incompetent, because being co-obligor with defendant, as alleged. (a.) The matter alleged in the plaintiff’s offer was a transaction between the witness and John Alcorn, deceased, whose estate by the executor of his last will, &c., is the defendant in the issue on trial. (b.) The witness being married to a daughter and devisee of the said testator defendant, he is incompetent to testify against the interest of his said wife. 2nd. Under the Act of 1865, the witness is incompetent, because, (a.) He is not an adverse party, or person, for whose immediate and adverse benefit the present action or proceeding is defended; on the contrary his interest, the note in suit being joint, is adverse to the defendant to this issue.” Objection overruled. Evidence admitted. Exception. Rranthoover then testified that he had himself signed the note for Alcorn by his express authority and had also attached the seals, lie had not, however, written Alcorn’s name in his presence. Plaintiff then offered the due-bill in evidence; objected to on the ground that its execution had not been sufficiently proved. Objection overruled. Evidence admitted. Exception. Defendant requested the court to- charge as follows: 1st. If you believe that the .signature and seal of John Alcorn, deceased, were affixed to the note in suit, in his absence, then, notwithstanding that you may belieye that he authorized the act in the manner testified to by H. J. Branthoover, the witness for the plaintiff, your verdict must be for the defendant. Refused. (Second assignment of error.) 2nd. The testimony, and the witness H. J. Rranthoover, being incompetent, all the testimony given by him ought to be disregarded by you, and the same is withdrawn from your consideration. Reserved. 3rd. Under all the evidence in the case, your verdict should be for the defendant. Reserved. The court ordered a verdict for plaintiff, which was rendered accordingly, and subsequently entered judgment on the points reserved, filing the following opinion : “ The question raised by the points has given me no little labor and concern. “I believe every word the witness testified to, but was he a competent witness ? On the trial the court overruled- the objection and admitted the offer (pro forma), and allowed the witness to- testify. The points reserved now raise the same question. “ The suit was brought against the surviving obligor, and the representatives of the deceased (alleged) co-obligor. This practice is not justifiable, but the question of an improper joinder was not raised. It is true the jury was sworn only as to the executor of Alcorn, but the witness was nevertheless a party to the record and was Called to testify substantially against himself. Under the Act of 1869, the witness could only be excluded on the ground of his wife being a beneficiary under the will of Alcorn, which was not formally shown, but even had it been made so to appear, still I think he was competent, for he was not testifying directly against his wife, and so far as the court was informed, even if the claim was collected off''the estate she woxrld not be hurt. “ Some light has been cast upon the question by Mr. Wharton in his ‘ Law of Evidence,’ sec. 466, as well by the ruling of the Court in Ash, et al. v. Guie, 97 Pa. St. 493. “We do not think the case of Uogeboom v. Gibbs, 7 Norris 235, rules this case as insisted upon. There the witness was not a party to the record, and was not called under the Act of 1865, and in addition his evidence was to divide responsibility by showing that the deceased was a partner. Here the witness testified that lie was wholly responsible, being the principal in the note, and I think he was a competent witness under the Act of 1869. It may be added that the various Acts of Assembly allowing parties to testify are enlarging Acts, and must be liberally construed. Still further may it be said, that the Act of 1869 does not interfere with the Act of 1865.” Defendant thereupon took this writ, assigning for error the admission of plaintiff’s offer of evidence, the answers to defendant’s points, the entry of judgment for plaintiff on-the points reserved and finally the entry of the judgment in favor of plaintiff, it appearing by the record tliat the joint obligor is alive and surviving defendant’s testator. (Seventh assignment of error.)