Leith v. Bush

61 Pa. 395, 1869 Pa. LEXIS 185

• Court: Supreme Court of Pennsylvania
• Decided: March 18, 1869
• Docket: No. 208
• Status: Published

Opinion

The opinion of the court was delivered, May 11th 1869, by

Read, J.

The bond in this case was drawn in the name of one defendant, “ I, William H. Bush,” and purported to be signed and sealed by him and the four other defendants. This is a joint and several obligation of the five defendants: Knisley v. Shenberger, 7 Watts 193; Parks v. Brinkerhoff, 2 Hill 663; Smith v. Crooker, 5 Mass. 538, 540; Ex parte Fulton, 7 Cowen 484. “ Thus, if the words are ‘ I promise to pay,’ and there are many promissors, it is the several promise and the joint promise of all:” Parsons on Notes and Bills 251.

George Shimer was called as a witness by the plaintiff, and on his voir dire testified that he was a school director and officer of the board of the school district of Saucon township. The plaintiff thereupon proposed to examine the witness in chief, but the defendants, by their counsel, objected on the ground that the witness might be liable to the district in the event of a failure to recover on the bond, which objection was sustained by the court and the evidence rejected.

The manner of the objection was hasty, as it did not permit the plaintiff to state what he proposed to prove by the witness, and the decision of the court entirely prevented it, by ruling that he could not be a witness for any purpose.

The bond, on its face, was a valid one, and nothing had been alleged or proved to show it was otherwise. It is, however, clear that the remote contingency of possible liability on the part of the witness was not such an interest as to render him incompetent to testify. He was therefore improperly rejected, as also was William Apple.

As this cause must go back for trial, it is not necessary to express a positive opinion as to the rejection of William H. Bush, as both sides will be prepared to prove his actual status, and, if necessary, a pardon will no doubt be procured to make him a competent witness.

In the stage of the cause at which the questions were asked which form the subjects of the 4th, 5th, 6th and 7th specifications of error, they do not appear to have any such relevancy as could make them in any way material to the plaintiff or the case, and therefore the court did the plaintiff no injury in rejecting them.

Our opinion as to the form of the bond is expressed in the commencement of this decision.

Judgment reversed, and venire de novo awarded.