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Reports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) online

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which they before that time had made with the Norristown and
Valley Railroad Company, to grade Section No. 12 of the said
road, and execute to him a letter of attorney empowering him to
do the same, and to receive therefor, the same price or sum for
which they themselves undertook the said work ; that no such
transfer was ever made by the said John M. and Charles J. Davis
to the said defendant ; and that no such letter of attorney was ever
executed to the said defendant, by the said John M. and Charles
J. Davis ; and that there has been an entire failure of the consid-
eration for which the said note was given."

The plaintiff's counsel required that the said Charles J. Davis

|| l The said portion of the contract stood, as matter of fact, in defendant's
name, on the books of the company, who regarded him as the contractor.
lie enjoyed all the benefits of his contract with plaintiff. Infra, p. *176.||



1840.] OF PENNSYLVANIA. 170

[Quinlan r. Davis.]

should be sworn on his voir dire; whereupon he testified on his
voir dire as follows:

" I expect to gain if the plaintiff recovers, and to lose if the
verdict is for the defendant. I am interested in the event of the
suit." And being cross-examined, the witness testified as follows :
"I am a party to this action. Part of the consideration of that
note would come to me. It is my interest that the plaintiff should
recover in this suit. It is my interest that the defendant should
lose the suit."

The defendant's counsel thereupon asked that he should be
sworn in chief, which was objected toby the plaintiff's counsel ;
and the court sustained the objection, and rejected the witness ;
whereupon the defendant's counsel excepted.

The defendant's counsel then moved the court to order the name
of Charles J. Davis to be placed on the record. The plaintiff's
*counsel objected, and the objection was sustained by the r*i yi
court ; and the defendant's counsel excepted.

The defendant's counsel then offered to prove the declarations
and admissions of Charles J. Davis, made by him as a witness for
the plaintiff before the arbitrators respecting the consideration for
which the note was given. The evidence was objected to by the
plaintiff, but admitted by the court ; whereupon the defendant called
Francis Dimond, Esq., who testified as follows:

' I was present at the trial of this case before the arbitrators.
Charles J. Davis was examined as a witness before them. He was
examined on the part of the defendant. My recollection is, that
the counsel for the plaintiff objected to his examination. He stated
that he was a brother of the plaintiff. I do not know that C. J.
Davis made any objection himself to being examined. I have no
distinct recollection whether any objection was made or not
Charles J. Davis stated that $100 of the note was in part consid-
eration of the articles of agreement ; that $132 was for two horses,
two carts and gears ; and that the two dollars and a-half were for
discount."

The defendant's counsel then proposed to ask the following
questions : " What did Charles J. Davis state that his brother,
John M. Davis, the plaintiff, had told him in reference to the con-
sideration for which the note was given ?" which question was
objected to by the plaintiff's counsel, and rejected by the court ;
and the defendant's counsel again excepted.

The article of agreement referred to in the notice of special
matter, is as follows :

" Article of agreement made and concluded this 22d of October
1838, between John M. and Charles J. Davis, of the county of
Chester on the one part, and Michael Quinlan, of the county of
Montgomery, on the other part, are as follows : Said Michael



171 SUPREME COURT [Dec. Term,

[Quinlan v. Davis.]

Quinlan agrees to take section No. 12 of the Norristown and Valley
Railroad, at the following prices, viz. : eleven cents for excavation,
and twelve cents for embankment ; twenty-five cents for loose or
stratified rock, and fifty cents for solid rock. Grubbing and clear-
ing fifteen dollars ; cross-drains seventy cents per lineal foot, as per
John M. and C. J. Davis's contract with the company. Said
Michael Quinlan agrees to give J. M. and C. J. Davis four hundred
dollars for said section, viz. : fifty dollars monthly until said amount
shall be paid ; and J. M. and C. J. Davis agree to give said Michael
Quinlan a power of attorney to do all business pertaining to the
contract, if accepted by the company. John M. Davis agrees to
find two tons of straw, delivered at Michael Quinlan's stable ; and
said Michael Quinlan agrees to let John M. Davis have all the
*i79-i manure made in or about said stable. *John M. Davis
-1 agrees to let said Michael Quinlan build a shanty on his
ground. Said Michael Quinlan binds himself to finish said contract
as per original contract between John M. and Charles J. Davis with
the company. For the fulfilment of the above contract, we, the
parties, bind ourselves under a penalty of five hundred dollars to
abide by and complete."

This agreement was signed and sealed by the parties.

Other evidence was given, which it is not material to state
here.

The learned judge charged the jury in reference to the defence
set up, that if the defendant required a power of attorney, it was
incumbent on him to show that he had demanded it from the
plaintiffs, and that they had neglected or refused to give it ; and
that if the jury believed the evidence, their verdict must be for the
plaintiff.

To this charge the defendant's counsel excepted.

The jury found for the plaintiff; and the defendant, on the return
of the record, filed the following specifications of error :

1. The court erred in rejecting Charles J. Davis as a witness in
chief on the part of the defendant.

2. The court erred in refusing to order the name of Charles
J. Davis to be placed on the record, as one of the plaintiffs in
the suit.

3. The court erred in overruling the evidence mentioned in the
third bill of exceptions.

4. The court erred in charging the jury that if the defendant
wanted a power of attorney, it was incumbent on him to show a
demand for it, and a refusal on the part of the plaintiff tc give it ;
and that, if the jury believed the evidence, their verdict must be for
the plaintiff.

The second of these suits was an action of covenant brought in
the names of John M. Davis and Charles J. Davis against Michael
Quinlan upon the articles of agreement above stated.



1840.J OF PENNSYLVANIA. 172

[Quintan . Davis.]

The cause was tried on the 22d of October 1840, when the
plaintiff's counsel produced and gave in evidence the articles
of agreement ; and then called William Hammill, who testified as
follows :

" I am at present president of the Valley Railroad Company.
Section No. 12 stood in Quinlan's name. It is not finished yet.
Quinlan had this section when I came in the board. He was
returned in the estimates last summer by the engineers ; returned
to me as president. I granted the order to Quinlan on the treasurer
for payment *from that time to this. He quit work before r*i7a
he finished the section No. 12 : we still consider it his ; he L
has not abandoned it. Quinlan repeatedly received orders from
me on the treasurer. He received the orders up to the time he
quit work. We quit work, generally, last fall ; and he quit when
the rest did. He has been the only contractor on that section
since I came in the board. I will have been in two years in Decem-
ber. Can't say the amount he has drawn ; but it was 700 or $800
monthly. The estimates were returned to me, and no objection
ever made that he had no power of attorney. He has always been
considered a good contractor. I think Davis never called on me
in relation to the power of attorney." Cross-examined. " I
can't tell how Quinlan became contractor on that section. I don't
know that he became contractor under that agreement with the
Davis's. Those orders were paid either in notes or cash, when he
settled up, and he got his ten per cent, in stock. I don't know
whether the notes are paid; they are generally paid. The company
have his receipts up to the time he quit work on No. 12."

The defendant's counsel then called a witness to prove that
the defendant called on the plaintiffs for the power of attorney
which was stipulated for in the articles of agreement, and that
the plaintiffs refused to give it. This testimony was objected to
by the counsel for the plaintiffs. The court sustained the objec-
tion, and rejected the evidence ; and the defendant's counsel ex-
cepted.

The defendant's counsel then proposed the following points, on
which they requested the court to charge the jury.
. 1. That it was incumbent on the plaintiffs to prove that they
gave or offered to give to the defendant a power of attorney to do
all business pertaining to the contract.

2. That if the jury are satisfied that no such power of attorney
was given, or tendered to the defendant, the plaintiffs are not entitled
to recover, and their verdict must be for the defendant.

The court, however, refused to charge the jury as requested;
and a verdict was rendered for the plaintiffs.

Errors were assigned in the rejection of evidence, and the charge
of the court.



173 SUPREME COURT [Dec. Term,

[Quinlan v. Davis.]

Mr. Mulvany for the plaintiff in error, cited Peake's Evid. 167 ;
Jackson v. Vredenberg, 1 Johns. 162; Holdship v. Doran, 2 P. &
W. 91; 2 Saund. PL & Ev. 153.

Mr. May, contra, cited 2 Starkie's Evid. 102; Wakely v. Hart,
6 Binn. 196; Gallaher v. Milligan, 3 P. & W. 178; Jordan v.
Davis, 5 Whart. 338.

*1741 *The opinion of the court was delivered by

-" ROGERS, J. It is a principle of general application, that
a party to a suit is not suffered to be a witness in support of his
own interest ; nor can he be compelled in a court of law, to give
evidence for the opposite party against himself. 1 But when one of
several co-plaintiffs comes forward voluntarily, or when called by
the defendant, makes no objection, to disprove the defendant's lia-
bility to the demand made upon him, he may be admitted, with the
consent of the adverse party, though at the same time, he defeats
the claim of those who jointly sue with him. 2 For if the plaintiff
were to make a declaration against his interest, out of court, evi-
dence of that declaration would be admissible : and the proof is
equally credible, if, with the consent of the defendant, who waives
all objection to his testimony, he declares the same thing, on oath,
at the time of the trial. 10 East 403 ; Norden v. Williams, 1
Taunton 378 ; Gallaher v. Milligan, 3 P. & W. 177. The objec-
tion, it seems, must come from the person called as a witness ; it is
therefore pretty clear, on the principles stated, that there was error
in refusing to allow the testimony. But may not the case be rested
on a broader ground ; for would it be competent for a witness him-
self to refuse to testify on the facts disclosed ? This point has not
been directly decided; but we are of opinion it would not. For
although it was once doubted whether a witness could be compelled
to give evidence which might subject him to a civil action, or charge
him with a debt, yet it has been since held that he is bound to
answer a question, although his answer might render him liable to
a civil suit. 1 Hall's Law Journ. 223. His interest will not
excuse him. The objection must rest solely on the exception that
he is a party. But it must be obvious that the name of the witness
who for the first time claims an interest in the suit, nowhere appears
on the record. That he is so, is disclosed by himself on his voir
dire ; but we apprehend it is too late to claim a privilege which
the law would otherwise allow him. Of this the plaintiff cannot

|| ' See acts 27 March 1865, | 1, P. L. 38 ; 10 April 1867, g 1, P. L. 60;
15 April 1869, \\ 1. 2, P. L. 30 ; Purd. Dig. (ed. 1&73) 624, pi. 13, 15, 16, 17. ||

I! Solms v. McCullough, 5 Barr 473; Moddewell v. Keever, 8 W. & S.
63 ; London Soc. . Hagerstown Bank, 12 Casey 498 ; but as to the privilege
of exemption being joint, see Swanzey v. Parker, 14 Wr. 441. ||



1840.] OF PENNSYLVANIA. 174

| Quinlun v. Davis.]

complain, as this consequence may be avoided at the option of the
plaintiff, by putting himself in a situation to be liable to costs, with-
out subjecting the other side to the inconvenience and trouble of
proving his interest aliunde. When the name is disclosed, both
parties are put upon an equal footing. The plaintiff can neither
be a witness in his own favor, nor can he be compelled to testify
against his interest. And this distinction may be salutary, as it
may check the practice of omitting to name the real party, with a
view to avoid costs, or, if necessary, to support the claim by his
own oath. In the case of The King v. Inhabitants of VVoburn, 10
East 395, a rated inhabitant was not compelled to testify, although
the nominal parties were the churchwardens and overseers of the
poor, because he \was considered a party, although not named on the
record. And this *would seem to militate against the dis- r*i"
tinction taken ; but then, as in the case of every corporator
who is not an officer of the corporation, the name cannot appear,
as the suit is brought in the corporate name ; and for this reason,
he cannot be deemed to waive his privilege : but where it may,
and in fairness ought to appear who is the real plaintiff, he should
be entitled to no such exemption ; for this would permit him to
assume the character of a party, or a witness, as may best suit his
interest. Here, as it appears that the witness was jointly inter-
ested in the note, the action may have been brought for their joint
use; and on failure of the action, he would have been liable for
costs ; and an execution, as such, might have been issued against
him ; but as it now stands, he can only be reached by attachment,
after satisfactory proof dehors the record, that the suit was insti-
tuted for his benefit.

And these remarks have a bearing on the second and third excep-
tions ; for the defendant cannot use him as a witness and a party
also; and for this reason the court might very well refuse to order
his name to be put on the record. Nor can his declarations be
evidence, except in his character of party. It seems to me, how-
ever, that when it is discovered at the time of trial, by confession,
or otherwise, that a person is really interested, the court may, and
ought to add his name as plaintiff on the record.

The admissions of a party to the suit, against his interest, are
evidence in favor of the other side, whether made by the real party
on record, or by a nominal party, who sues as a trustee for the ben-
efit of another, or whether by the party who is really interested in
the suit, though not named. And this is the extent of the doctrine
as to admissions ; for I know of no case where the principle has
been so far extended as to receive evidence of the declarations
which one of two co-plaintiffs has heard the other say, in regard to
the subject-matter of the action. The evidence is properly re-
stricted to admissions of material facts within the knowledge of the



175 SUPREME COURT [Dec. Term,

[Quinlan v. Davis.]

party leaking the admission, and cannot safely be extended to his
declarations of the admission of others. The testimony which was
rejected purported to be, not. what he himself knew, but what he
had heard the other plaintiffs say, as to the consideration of the
note. It was therefore properly overruled.

The next exception is common to both suits. The defendant
alleges that it was incumbent on the plaintiffs to prove that they
gave, or offered to give to the defendant, a power of attorney, to
do all business pertaining to the contract. But it is contended from
an inspection of the agreement, that this is an independent cove-
nant, which goes to part of the consideration only, and that a breach
of it may be compensated in damages. It is, therefore, as has been
repeatedly ruled, unnecessary for the plaintiffs to aver or prove
performance on his part. 6 Binn. 159 ; 1 Saun. 320. The bur-
then of proof lies on the other side; but in fact the defendant has
*17fil received *no injury whatever. The section of the work
" stands in his name on the books of the company. He is
regarded by the board, to all intents and purposes, as the contractor.
He is returned as such in the estimates of the engineer ; and
orders were given him regularly on the treasurer for the amount
due, which was continued until he quit work. It would be mon-
strous, that the defendant, who has been in the enjoyment of all
the benefits of the contract, should avoid it altogether, on the alle-
gation, that the other contracting parties failed to comply with a
part of the contract, when in truth the omission causes him little,
if any injury.

The other exceptions have either been abandoned, or but feebly
pressed.

The first case, Quinlan v. Davis, is reversed, and a venire de novo
awarded. The second is affirmed.

Judgment accordingly.

Cited by counsel, 6 W. & S. 53 ; 4 P. F. Smith 24. ||14 Id. 498. ||



1840.] OF PENNSYLVANIA. 175

[PHILADELPHIA, JANUARY 25, 1841.]

Edgell against McLaughlin.

IN ERROR.

1. An action cannot be maintained in Pennsylvania to recover a Mim of
money alleged to have been lost by the defendant to the plaintiff, upon a
wager or bet.

2. And in an action against the drawer of a check upon a bank, evidence
is admissible on the part of the defendant, to prove that the check was drawn
in pursuance of an agreement, by which a sum of money was bet by the
defendant with the plaintiff, upon a certain event ; and such consideration
having been proved, the defendant is entitled to a verdict.

ERROR to the District Court for the City and County of Phila-
delphia.

In the court below K. F. Edgell brought an action on the case
against Daniel McLaughlin, upon a check drawn by the defendant
upon the Philadelphia Bank, dated Philadelphia, July 29th 1836,
in favor of S. Comfort or bearer for 500. Plea, non-assumpsit,
&c.

*0n the trial before Stroud, J., on the 28th of February r^-i-Ty
1838, the plaintiffs counsel gave the check in evidence, and -
proved a demand upon the bank and a refusal to pay by the direc-
tion of the defendant.

The defendant's counsel then offered in evidence the following
paper.

" The undersigned having made a wager concerning a certain
note in writing, or letter, said to have been written by Daniel Mc-
Laughlin to George C. Baker, they put in to the hands of Stephen
Comfort, each a check of this date for the sum of five hundred dol-
lars, which the said Stephen is to deliver to K. F. Edgell on the
first day of August 1836, if the said K. F. Edgell will deliver to
the said Stephen any letter or note in the handwriting of Daniel
McLaughlin, party hereto, requesting the said George C. Baker to
pay any larger sum, than the hundred dollars, which he lately bor-
rowed of the said Daniel ; but in case the said K. F. Edgell, party
hereto, fail to produce and deliver said note, with such request as
aforesaid in the said writing to the said Stephen, on the first day
of August, and in that case the said Stephen is to deliver both the
said checks to the said Daniel for the said Daniel's use.

(Signed) D. MCLAUGHLIN,
K. F. EDGELL."

The plaintiffs counsel objected to this paper ; but it was admit-
ted by the court, and exception taken.

The plaintiffs counsel then gave in evidence a letter from the
C W BARTON 12



ITT SUPREME COURT [Dec. Term,

[Edgell v. McLaughlin.]

defendant to George C. Baker, dated the 8th of July 1838, request-
ing him to repay the sum of $115.

The learned judge charged the jury, as follows:

" I shall place this case before the jury, upon a plain ground.
I construe the paper produced to be a wager. It is a frivolous,
idle, and a trifling wager, and it is not becoming courts of justice
to have such cases tried before them. Such was the law in Eng-
land before the Revolution ; and though there have been some deci-
sions since, which might tend to establish a different conclusion,
yet there has been exhibited a constant desire upon the parts of
courts there, to restrain suits upon such subjects. (The learned
judge here gave some instances, and proceeded.) And our own
Supreme Court has, I have been informed, recently decided, that
a bet upon a boat-race cannot be recovered. My opinion therefore
is, that the paper discloses an illegal wager, and that therefore the
plaintiff cannot recover, though he may have performed the matters
assigned to him, and produced the paper specified. It is a wager
and nothing else ; and there is nothing appearing in it which can
*178~l ^ e cons * rue( ^ ^0 be a Consideration, upon which the promise
J to pay can be supported. Under this view of the case, the
jury will find for the defendant."

The jury accordingly found for the defendant; and this writ of
error was taken.

The plaintiff in error assigned for error the admission of the evi-
dence excepted to, and the charge of the court.

Mr. Kennedy for the plaintiff in error.

1. The evidence of a wager ought not to have been admitted.
In Swan v. Scott, 11 S. & R. 155, it is said that the test whether
a demand connected with an illegal transaction, can be enforced at
law, is, whether the plaintiff requires the aid of the illegal trans-
action to establish his case. Here there were services performed
in respect to the letter which were a sufficient consideration, inde-
pendent of the bet. Toler v. Armstrong, 4 Wash. C. C. Rep. 299.

2. The learned judge of the District Court went too far in say-
ing, that this was an illegal wager. In Phillips v. Ives, 1 Rawle
36, C. J. Gibson expressed the opinion that the legislature alone
could prohibit a recovery on all wagers. This is not a case involv-
ing moral turpitude. If there is any good consideration here, we
are entitled to recover.

Mr. McLaughlin, contra.

Mr. St. Q-eo. S. Campbell, in reply.

Wagers are recoverable in general. Da Costa v. Jones, 2 Cowp.
T35 ; Jones v. Randall, Id. 3T. The exceptions to the rule are,
1st, where a wager tends to a breach of the peace. 2d. Where






1840.] OF PENNSYLVANIA. 178

[Edgell v. McLaughlin.]

it is against morality. Brown v. Leeson, 2 Hen. Bl. 43. 3d.
Where it tends to indecent exposures. 4th. Where it is injurious
to third persons. Good v. Elliott, 3 Term Rep. 693. 5th. Where
it is against the policy of the government. Atherfold v. Beard, 2
Term Rep. 610; Gilbert v. Sykes, 16 East 150. If the judge
thought the action wrong, he ought to have refused to try the case,
as C. J. Abbott did in Egerton v. Furzeman, 1 Car. & Payne
613 ; 11 E. C. L. R. 497. There is no precedent for adjudicating
such a wager as this illegal.

The opinion of the court was delivered by

SERGEANT, J. Courts of justice are instituted to determine the
disputes among men necessarily arising from their existence together
in society. The time and labor of a large class of its citizens are
devoted to the adjustment of these disputes at a great expense to
the community ; and this class is as necessary to the welfare of
society, as the existence of any of the occupations in which men
do *for others what they cannot do for themselves. But in r*i7q
the innumerable contentions that human affairs originate, '-
there is sufficient to engross the time and labor of its tribunals,
without occupying them in the investigation of gratuitous contests,
such as wagers ; which flow sometimes from a spirit of gambling,
sometimes from heat of passion, and sometimes from folly and in-
discretion on the one side, and stratagem and cunning on the
other. Hence the more intelligent judges of modern times have
revolted at examples of this sort of suit, which have been sustained
in a court of justice; such as that in 5 Burrow 2802, of two sons
wagering on the lives of their fathers; and other judges have un-
dertaken to refuse to try such suits, on the ground that the wager
was impertinent or frivolous, and have turned the plaintiffs out of
court. In many other instances nice and ingenious distinctions
have been sought to get round the general principle, and to defeat
the plaintiffs recovery, till the exceptions are now so many that it
requires some effort of mind to fancy a wager which might be free
from the exceptions to the rule, considering the strong feeling which
leads modern courts to struggle against this sort of action. See
Selw. Nisi Prius 1086, chap, on Wagers.

Fortunately, however, for us in Pennsylvania, there is no deci-



Online LibraryPennsylvania. Supreme CourtReports of cases adjudged in the Supreme court of Pennsylvania, in the Eastern district [Dec. term, 1835 - Mar. term, 1841] (Volume 6) → online text (page 20 of 75)