
    EAST MOUNT LAFFEE COAL CO. vs. SCHUYLER.
    Where the character of a witness for truth and veracity is attacked, his credibility is for the jury; and it is error to charge that he is not to be believed.
    It is not error to charge, that the fact that screens were furnished to a colliery, is evidence that they were furnished on the credit of the colliery.
    The question of the competency of a witness is for the Court, not the jury.
    Error to Common Pleas of Schuylkill County. No. 447 January Term, 1869.
    This was an action of scire facias sur Mechanics Lien against a leasehold estate of a mining right and improvements erected thereon to recover the price of screens which the plaintiff claimed he had made for a coal breaker, at the colliery of the defendant. Joshua Norton claimed to be agent for the company, and ordered the screens. He paid part, and accepted drafts for the remainder. Schuyler then gave him a bill receipted. The drafts were not paid, though the Company gave Norton the full amount of the bill, to pay them. There was no express contract made with the Company for putting up the screens. John Pierce, a witness whose deposition was offered on behalf of the defendant had testified in answer to an interrogatory as follows: “I have been a stockholder in the East Mt. Laffee Coal Co. since its formation and have held three hundred shares. I sold one hundred shares to Clement March about one month since for the sum of $450, the other two hundred shares I transferred to Clement March on September 24,1866, (about three days before his deposition was taken,) for the purpose of qualifying myself to give evidence in this case.” He also testified: “I hold no relation to the Company at the present time.” The Court rejected the offer upon the ground that it appears from the face of the deposition, that the witness was a stockholder and transferred his stock without consideration, for the mere purpose of becoming a-witness ; such a transfer may work a transfer of the bare legal title to the stock, but would not change the equitable interest. Joshua Norton was examined on behalf of defendants. Four witnesses for plaintiffs testified against his character for truth and veracity. The charge of the Court was delivered March 15th, 1869, as follows, per
    Ryon, P. J.
    The work must have been done for and upon the credit of the breaker, and leasehold, and the lien must have been filed within six months from the date the last article was purchased. These questions are facts for the jury to determine. [The fact that the screens were made by Schuyler and put in this colliery, is evidence from which the jury may infer that they were sold upon the credit of the colliery.] The receipt of plaintiff for the amount of these screens has been produced by the defendants, and shows the whole amount the screens came to. [This- bill, though receipted, was not all paid,] it is for you to determine what balance remains unpaid. The agent’s acts are the acts of the principal within the scope of his authority, and if the agent did not pay the money over, their debt is not discharged, though the Company may have instructed the agent to pay it, and provided the requisite funds. What is due, if any, is also for the jury. [The testimony of Norton is impeached, and he is not to be believed.] The Court decline to give the instructions asked in defendant’s points. [Norton’s testimony is impeached and he is not to believed.]
    March 15,1869, verdict for plaintiff for $1,849.25.
    
      E. O. Parry, Esq., for plaintiff in error argued,
    that Pierce should have been considered competent, unless the other side establishes his incompetency; 1 Greenfeaf, Ev., 504. A gift would transfer the stock; 2 Blackstone Com., 440; Jacobs’ Law Dic., Title, Gift; Smith vs. Bank of Washington, 5 S. & R. 318. If the interest is doubtful; it is a question for the jury; Hart vs. Heilner, 3 Rawle 411. The foundation of a mechanic’s lien is a contract with the owner, and not the fact of the work being done; Harlan vs. Rand, 3 Casey 514.
    The question whether Norton was to be believe.! or not was a question solely for the jury and it was error to give binding instructions to that effect; Dougherty vs. Stephenson, 8 H. 210; McIldowney vs. Williams, 4 C. 492; Strohl vs. Levan, 3 Wr. 177; Brownfield vs. Brownfield, 2 Jones 136; Ayres vs. Rubicam, 3 Phil. 328.
    
      Messrs. Hughes & Farquhar and B. W. Cumming, Esqs., contra.
    
    The question of Pierce’s competency was for the court; Greenl. Ev. 425; Harris vs. Wilson, 7 Wend 57; 3 Phil. Evid. 1501. A stockholder is incompetent to testify in behalf of the corporation. Phila. & West C. R. R. Co. vs. Hickman, 4 Casey 318, A release not under seal is insufficient; Schuylkill Nav. Co. vs. Harris, 5 W. &. S. 28.
   The decision of the lower court was reversed on March 30, 1871, in the following opinion, per

Thompson, C. J.

It has long been a rule in this State, that where a party might be a witness by divesting himself of a disqualifying interest, such as a stock in a corporation and the like, his competency after having done so, is not affected by showing that he made the transfer for the purpose of being a witness; Smith vs. The Bank of Washington, 5 S. & R. 318, and like cases. The purpose of the transfer is of no consequence if it be fully and completely-accomplished and the interest divested.

The witness, Pierce, whose testimony was excluded by the Court gave sufficient testimony to show a sale and transfer of a portion of the stock held in company of the plaintiff in error, and if he had told no more his testimony might have gone to the jury. But that was not the case. He says: “The other two hundred shares I transferred to Clement March for the purpose of qualifying myself to give evidence in the case.” What the nature of the transfer was, how made, on what consideration, or as a gift he does not say. He does not give, in what he says the opportunity to the court to judge whether he had parted with the title, or merely passed it over some to person to hold until he should testify. It was not for him to interpret the word transfer. The court should have been put in possession of facts to enable it to say there had been a transfer of the stock which divested his interest. The same may be said of the witnesses’ declaration that he “held no relation to the company.” It did not necessarily imply that he held no stock in the company it might or might not, it was equivocal, and was far from sufficient to show a divestiture of his disqualifying interest. The court committed no ■ error in rejecting the testimony which constitues this bill of exception. Now, or hereafter, no such objection to the witness can arise, whether he owns or does not own stock in the company, a different rule exists on the subject of tire competency of witnesses from that in force when the testimony was taken before.

We see nothing in the 2d, 3d and 4,th, Assignments of Error to call for the reversal of this judgment. It is true as stated by the court, that the fact that screens were made and put up in the colliery of the defendant by the plaintiff', was undoubtedly evidence on the question of whose credit they were furnished upon, and might be abundant for that purpose.

Who could doubt its sufficiency if done in the presence, and with the approbation or assent of the superintendent of the company. It was certainly prima facie that it was done for the company until an explanation to the contrary was given.

The idea that the learned Judge might not peremptorially charge upon the testimony of Norton,, a witness for the defendants, so far as his testimony was against them is a mistake. As to them they were bound by it, unless they showed wherein it was a mistake, which they did not attempt to do. It was no error therefore to submit the facts coming from the defendants own witness, undisputed by them, even if the court believed him a false witness as to the other side. The defendants could not so treat him after having given him credit by calling him. A party so doing avouches the truth of the witness, and cannot go back upon him, unless the court allow it on the ground that he was deceived by the witness into calling him.

The remark attributed to. the learned Judge, “that this bill, though receipted, was not all paid,” as showing an assumption alleged of a fact by the court, is scarcely ingenuous, for he added “it is for you to determine what balance remains unpaid.” It seems to us that whatever of importance was in this matter it was referred to the jury for their deliberation.

The complaint that the learned Judge erred in charging the jury peremptorily that “the testimony of Norton is impeached, is not to be believed,” is certainly made out. That was a question solely within the province of the jury and the remark of the learned Judge was beyond doubt transgressive of that province. We need not spend time elucidating a matter so plain as this. The jury would undoubtedly look upon the instruction as binding them to discard the witnesses’ testimony without further investigation, at least that was the direct tendency of the remark. It was error on part of the learned Judge, and for this we must reverse this judgment.

Although the learned Judge declined any special answer to the defendant’s points,.'we think the instructions specifically sought by them may be regarded as having been given in the charge to the jury. It would, however, have been much more satisfactory to the party and to this court had answers to the points been given seriatim. There ought always be time for this. Doubtless on another trial more care will be taken in this respect.

Judgment reversed and venire de non awarded.  