Church v. Hampton

6 Watts & Serg. 514

• Court: Supreme Court of Pennsylvania
• Decided: September 15, 1843
• Status: Published

Opinion

Per Curiam.

This action is in the name of three partners, two of whom have assigned their property in the partnership effects to the third, who is the plaintiff in interest. The defendants pleaded a set-off; and the plaintiff produced one of his late partners as a witness at the trial, not to rebut the alleged set-off indeed, but to sustain the partnership demand. But what if it should not be sustained to the extent of the set-off? There would be a verdict for the defendants, and a certificate of balance against the plaintiffs on the record which would involve the witness in direct and personal liability. If the demand were sustained to the extent of the set-off, he would be discharged from responsibility; and his interest, therefore, lay in sustaining it that far by his testimony. Were the position of the parties reversed — the present defendants being plaintiffs, and the present plaintiff’s being defendants — it would not be thought that he might be called to sustain, as a set-off, the demand set out in the present declaration, because a failure to maintain it wo'uld involve him, as a party, in a verdict and judgment for the debt. And what is the difference between such a case and the present, in which the parties seek to enforce cross demands by proceedings in which both are actors ? Instead of a verdict direct, there may be a certificate of balance against the witness, as conclusive as a verdict, and he therefore had a direct interest in the event. It is scarce necessary to remark that the refusal of the prayer for direction as to the effect of his testimony stands on the same ground.

Judgment reversed, and a venire de novo awarded.