text:
    Harden v. Hays.
    ■Where a will is proved by proof of the signature of a deceased subscribing witness, his declarations that the testator was incompetent at the time to make a will are admissible in evidence; for the proof of his signature is prim&fade evidence of the competency of the testator to make a will.
    Where a subscribing witness declares Ms belief that the testator was non compo's at the time, the party calling him may contradict him by reading Ms evidence ' taken on a former trial, and by proof of his declarations at other times.
    And the evidence on the trial, and the contradictory statements of the witness, should all be left to the jury on the question of the capacity of the testator.
    Where there is uncontradicted evidence of general insanity at a particular period, the onus of showing a lucid interval at the very time of the subsequent execution of a will lies on the party claiming under it. It is not sufficient that there is evidence of sanity before and after the day on which the will was made: a jury cannot bo permitted from such evidence to infer that a lucid interval intervened, during which the will was executed.
    Improvements and expenditure on the faith of a contract within the statute of frauds, with the' knowledge of the owner, gives no equity to the purchaser to retain possession until he is repaid.
    Devise to A., he paying a certain sum, passes the fee without words of limitation.
    In error from the District Court of Allegheny.
    Abraham Hays, jun., the plaintiff in this ejectment, claimed title to the premises in question as devisee of John Hays, under an alleged will dated September 24, 1844, which had never been proved before the Register. J. and T. Harden, defendants, were two of the heirs of John Hays. And Jacob Hays, and his tenant, defendants, set up a contract of sale and a conveyance from John Hays.
    The title to John Hay¿ was derived under the will of his father in 1808, which declared, “ as touching all such worldly estates wherewith it hath pleased God to bless me” — he devised, inter alia, the land in question “to his son John,” and then directed Mm to pay a certain sum to the testator’s daughter.
    On the trial before Hepburn, P. J., the plaintiff offered in evidence the will under which he claimed, and proved it was in the handwriting of S. Cochran, deceased, who was a subscribing witness, and whose signature was proved. Chessman, the other subscribing witness, stated that Cochran and himself were present when the will, which was read to John Hays, was executed; that John had had a fit the same afternoon, during which he was insensible. At the time of the execution he was stupid, and the witness said he would not have dealt with him at all, at that time, unless he wished to take advantage of him. The witness gave other testimony indicating his opinion of the incapacity of John Hays at the time, and said he did not recollect having, when examined previously, said nothing as to the incapacity of John, or that he believed him rational.
    The court then, under exception, admitted proof of his previous testimony, in which the witness stated that John Hays was rational at the time of making the will, and in which the circumstances showing incapacity, as detailed by him on this occasion, were wanting. The plaintiff, under exception, also gave evidence of the contradictory declarations of the witness at other times.
    The defendants then proved a commission de lunático inquirendo, issued in December, 1844, with an inquest returned finding John Hays a lunatic for forty years past, with lucid intervals.
    They then gave a great deal of evidence to show his incapacity to transact business; and it was not contradicted that within a few weeks after the making of the will in 1844, he became entirely insane. They then offered to prove the declarations of Cochran, the deceased subscribing witness to the will, that John Hays was not in his right mind when it was drawn and executed, and that he regretted he had drawn it or had anything to do with it. This was rejected by the court.
    The defendant, Hays, so far as it is material to state here, gave in evidence a contract of sale and deed, the execution of which was not sufficiently proved, and which could not be enforced under the statute of frauds. And that under this he had made improvements and expended money on the land.
    The plaintiff then gave in evidence, under objection, a will made by John Hays on the 26th September, 1844, with evidence that at that time he was competent to make a will. (This will was invalid by reason of defects in the execution: Yide 6 Barr, 409.) They' also proved the signature of Chessman to the will of September 24, and gave evidence to show the general capacity of John Hays, and particularly at intervals, shortly before and after the date of the will in question.
    His honour instructed the jury that Chessman’s evidence was entitled to but little respect, from his contradictory statements; but as the plaintiff rejected so much of his present testimony as bore on the question of sanity, he rejected it altogether. The whole falls together, and is thus entirely repudiated. This being out of the case, and there being proof of the signatures of the subscribing witnesses — one being dead, and the other unavailable— the statute was satisfied, and there was frimd fade evidence sufficient to prove the will.
    On the question of insanity, his honour instructed the jury that the finding of the inquest afforded a presumption against his sanity, but that there was evidence of his sanity at intervals before and after the date of the will. Under these circumstances, there being no direct evidence of his condition on the day, they were at liberty to draw from the facts such conclusion as they thought they warranted ; and that it was for them to say, if he was insane before the execution of the will, whether anything short of evidence at the very time the will was made, would be sufficient to satisfy them against the double presumption of the inquisition and the evidence of previous insanity.
    The defendant, Hays, requested instructions, that if there was a contract between himself and John Hays, for the purchase of land, complied with by the defendant, and on the faith of which he had made valuable improvements and expended money, with the knowledge of John, though the deed was not regularly executed, and the contract could not be enforced under the statute of frauds, the plaintiff could not recover without indemnifying the purchaser for his expenditures. No answer was made to this, which is called his second point.

      Williams and Wood, for plaintiffs in error.

      Forward, contó.

      Oct. 6.
   Rogers, J.

The plaintiffs in error, who were defendants below, have filed no less than twenty-four errors to the admission or rejection of evidence and the charge; all of which, it is believed, may be profitably reduced to some three or four prominent points, which it is my duty to notice.

The first point, which strikes at the root of the plaintiff’s claim, if decided in favour of the defendants, would render an examination of the other errors entirely useless. It is, that under the will of Abraham Hays, sen., John Hays is entitled to an estate for life, and not in fee. The testator, after devising one-half of the same property, describing it, to his son Francis, proceeds: — “Item. I give and bequeath the remaining above-mentioned tract of land to my sons John and Thomas, in the following manner, to be equally divided between them, with a straight line drawn through the centre,” &c. Did the question depend on this clause of the will, without the aid derived from other parts of it, it would pass but a life-estate, inasmuch as there are no words of inheritance attached to the devise. But we think there is a sufficient indication exhibited injother parts of the will to pass a fee simple. It is very evident, from the introductory clause, that the testator had no intention to die intestate; but that in this ease, as in almost all others, he supposed he was devising his whole estate. “And, as touching such worldly estate, wherewith it has pleased Grod to bless me in this life, I give and dispose of the same in the following inanner,” &c. An heir at law can only be disinherited by express devise or necessary implication. Hence, in the construction of a will of doubtful meaning, every fair intendment is to be made in favour of the heir at law: 7 W. & S. 284. This is agreed; but a direction in form in a devise to pay a gross sum or sums of money, enlarges the devise to an estate in fee simple, where there are no words of limitation. But where there is any express limitation of the interest devised, a direction that the devisee shall pay pecuniary legacies, does not make his interest a fee simple. Now, although the introductory words would not of themselves he sufficient to enlarge the devise to a fee simple, yet, coupled with the devise to Sarah, it has that effect. The testator says: — “Item. I give and bequeath to my daughter Sarah, all the property she now claims in the house or about the farm; likewise $150, to be paid out of that part of my real estate willed to my sons Thomas and John: (that is to say) John to pay $50; $25 at the expiration of one year after my decease; the other $25 at the expiration of the next year. Thomas to pay $50 per year, according to the same manner. John pays his.” Here, then, is a plain direction to John to pay a gross sum of money out of the real estate devised to him, which of itself enlarges the estate; and, be it observed, there are no words of limitation restraining the legal effect of this provision. It is not to be supposed that the testator intended that the devisee should sustain a loss, as would be the case if the life-estate, which is possible, should expire before he was reimbursed the money he was directed to pay. Notwithstanding there are no words of inheritance, the intention must govern. Now, in this clause of the’ will, it is plain the testator supposed he had devised all his estate in the land to John. He directs him to pay the money out of that part of the real estate which he had willed to him. The necessary implication is, that he had devised his real estate; that is, all the interest, viz: a fee simple which he had in it. "When the word “ estate” is coupled with a devise of real estate, it is uniformly held to be a fee simple; and this is carrying out the intention of the testator, in ninety-nine cases out of a hundred. This point has decreased very much in importance since the act of the 8th April, 1833, 9th section, where the legislature wisely enacted that all devises of real estate shall pass the whole estate of the testator in the premises devised, although there be no words of inheritance or of perpetuity, unless it appear by a devise over or by words of limitation or otherwise, in the will, that the testator intended to devise a less estate.

The plaintiff having given evidence of the execution of the will by the subscribing witnesses, viz: by proving the handwriting of Samuel Cochran, and by the testimony of Charles Chessman, the defendants proposed to prove that Samuel Cochran, the witness to the will, in conversation with the witness said repeatedly that the testator was not in his right mind when the will was drawn and executed; that he regretted he had drawn it or had anything to do with it, and that it ought to ho burned or destroyed. The evidence so offered was rejected by the court, and this forms one of the prominent points in the case. This testimony, if true, would be decisive of the plaintiff’s case. Its materiality cannot, therefore, be disputed. It is ‘equally clear that, had Cochran lived and been brought to the stand, it would have been evidence of the most overwhelming character: Cowdon v. Reynolds, 12 S. & R. 281. But it is said that inasmuch as he is dead, and his handwriting only proved, the evidence, from the accident of death, must be excluded. The opinion of the court is not without authority to support it, for the same point has been ruled in Stobart v. Dryden, 1 Meeson & Welsby, 615. The reasons on which the case was ruled are well summed up by Mr. Grecnleaf, in his valuable Treatise on Evidence, vol. 1, p. 216, § 126. Such testimony was overruled by the court, Because the evidence of the handwriting in the attestation is not used as a declaration of the witness, but is offered merely to show the fact that he put his name there in the manner in' which attestations are usually placed to genuine signatures, and the second chiefly because of the mischiefs which would ensue if the general ■rule excluding hearsay were thus broken in upon; for the security of solemn instruments would thereby become much impaired, and the rights of parties under them would be liable to be affected at remote periods by loose declarations of the attesting witnesses, which could neither bo explained nor contradicted by the testimony of the witnesses themselves. In admitting such declarations, too, there would bo no reciprocity; for although the party impeaching the instrument would thereby have an equivalent for the loss of his power of cross-examination of the living witness, the other party would have none for the loss of his power of re-examination.” That there is force in the reasoning of the court, I am not disposed to deny, although I cannot agree to the first reason assigned. It is not true at least in this state, where subscribing witnesses are not required to a will, that the evidence of handwriting in the attestation is offered merely as the declaration of the fact that he put his name there in the manner in which attestations are usually placed to genuine signatures. On the contrary, proof of the handwriting of a deceased subscribing Avitness is not merely evidence that he attested the will, but it is also proof of the sanity of the testator. It is cAÚdence of that assorted fact, because the principle of larv is, that no man would attest the will of any but a sane person of sound, disposing mind, memory, and understanding. On such evidence, without more, a will must be admitted to probate. It is in effect the attestation of the witness that the testator was sane. In Hays v. Harden, 6 Barr, 409, it is ruled that proof of the handwriting of the subscribing witness to a will, when the witness cannot be called, is equivalent to his oath to the signature of the testator. On this point several cases have been ruled, some closely analogous, others directly in point. Indeed, I do not understand it to be denied, that you may give evidence of the general character of the witness for truth and veracity to impeach or lessen the weight due to the attestation. Nor can it be questioned, in this state at least, after the’ decision of the case of Crouse v. Miller, 10 S. & R. 155, in which it was held that where book entries were given in evidence on proof of the handwriting of a deceased or absent witness, his character either for truth or honesty might be impeached for the purpose of destroying their credibility. This, it is true, is not the very point, but it is analogous to the case in hand. It is admitted by Baron Parke that a contrary doctrine had been ruled in some cases in England, although very limited, as he says, indeed, in point of number. It was so ruled by Lord Mansfield, in Wright v. Littler, 3 Burrows, 1244; by Justice Heath at Nisi Prius; recognised and approved by Lord Ellenborough; and to this let me add, by Bayley, J., in Doe v. Ridgway, 4 Barn. & Ald. 55. He (the attesting witness,to a bond), Justice Bayley says, must have been called if he had been alive, and it would then have been competent to prove, by cross-examination, his declarations as to the forgery of the bond. Now the party ought not, by the death of the witness, to be deprived of obtaining the advantage of such evidence. The same may be said of 5 Bing. 435. The weight of authority at the time of the decision of Stobert v. Dryden, was all on one side, and opposed to the doctrine of that case, which evidently was ruled on the ground of the dangerous character of the testimony. In Lossee v. Lossee, Executors, 2 Hill R. 609, the Supreme Court of New York held that where an instrument is read in evidence on proof merely of "the handwriting of the attesting witness, the adverse party may give evidence of the witness’s bad character at the time of attesting, and show his subsequent-declarations that the instrument was a forgery. Chief Justice Nelson, who delivered the opinion of the court, cites many cases in which the same doctrine is held. The point came incidentally before the court in Fox v. Evans, 3 Yeat. 506. There the declarations of one of the witnesses to a will, who was out of the state and had not been examined, was properly overruled; but it is evident from the remarks of the court, that if his handwriting had been proved, evidonee of liis declarations to impeach him would have been received. For when a party rests on his testimony, it is open to attack either by proof of his general character, or by proof of his repeated declarations. The same point has also been ruled in McElwee v. Sutton, 2 Bailey S. C. Rep. 128. There a deed was introduced on proof of the death and handwriting of one Yail, the attesting witness, whereupon the opposite party offered to show that Yail had frequenty said the deed had been ante-dated to protect the property from creditors. The evidence was rejected, and for this cause, among others, a new trial was awarded. O’Neil, J., who delivered the opinion of the court, after remarking that the presumption arising from the attestation- in question might be overcome, added: “ To do this nothing can be more satisfactory than to show that the witness himself had said, ‘ Although I witnessed the deed, yet I know it does not bear its genuine date, but was ante-dated to save the property.’ This is in effect a contradiction of the testimony which the law presumes him to give.” In North Carolina, where trespass was brought for killing a slave, it was held that the slave’s good character was admissible to repel the presumption of his improper conduct: Pierce v. Myrick, 1 Dev. Rep. 345. So in Gardenhire v. McDaniel, 2 Yerger, 23, and Vandyke v. Thompson, 1 Harrington, 109, the same point was- presented for decision in the case of deeds which had been proved by the subscribing witnesses and subsequently recorded; and it was in both instances determined that evidence of their bad character might be given for the purposes of showing the instruments were forgeries. In that class of cases the question becomes of primary importance: Yide notes to 2 Hill, 612, and 1 Meeson & Welsby, 615. From this array of cases, it must be agreed that on this side of the Atlantic at least, the weight of authority is decidedly in favour of the admission of the testimony. It is said that if any declarations, at any time, from the mouth of subscribing witnesses who are dead, are to be admitted in evidence, the result would be that the security of solemn instruments would bo much impaired. The rights of parties under wills and deeds would be liable to bo affected at remote periods by loose declarations of attesting witnesses, which those parties would have no opportunity of contradicting or explaining by the evidence of the witnesses themselves. I admit there is force in this view of the case, and that such testimony calls for vigilance and strict scrutiny, but I cannot agree that this is a reason for the exclusion of the testimony altogether, thereby, in many cases, destroying the possibility of exposing fraud, forgery, and villany of every description, so apt to be practised on persons of weak understandings, particularly when debilitated by sickness and disease. It is better that we should incur the risk mentioned, than that we should sanction fraud and imposition. The remarks of Baron Parke show a distrust of courts and juries, and if pushed to an excess would be an argument against all testimony whatever, which we all know has and will continue to be abused; but that would be a flimsy reason for' excluding it altogether. Human testimony may be uncertain, yet its introduction is a necessity with which we cannot dispense. Courts and juries will make the necessary allowances so as to attain the ends of justice by extracting the truth from the attending circumstances. The result of this novel doctrine, for it is nothing less, it seems to me will be to produce this result, that a man who has a valid title to-day, by the accident of death will have none to-morrow. To obtain this questionable benefit it is hardly worth while to overturn a current of authorities establishing a different principle. And be it remarked, not a solitary case to the contrary has been bited on this side of the Atlantic. And that the admission of the evidence is better calculated to attain the ends of justice, would also appear from this, that the same principle must be extended to cases where the subscribing witness is out of the jurisdiction of the court. It is not difficult to see how easy it would be to spirit away a subscribing witness on the eve of trial, prove his handwriting, thereby giving full effect to his testimony, and then excluding all testimony of his repeated declarations, that the bond or will was a forgery or a conspiracy to cheat or defraud. Establish this doctrine, and we shall not be without instances of attempts to bailie justice by removing the witness, and thereby prevent the introduction of proof, which the guilty know would destroy their claim. I have, therefore, come to the conclusion we shall better attain the ends of justice by adhering to the law as established, than by adopting fanciful theories, although supported by the authority of some of the members of the Court of Exchequer of acknowledged ability and talents.

I now proceed to notice another point in the case. There were two subscribing witnesses to the will, Samuel Cochran and Charles Chessman. Charles Chessman was examined as a witness for the plaintiff. He proved that he signed the will as one of the subscribing witnesses, and that he saw the testator execute it. On that point there was no dispute: the matter in controversy was as to the sanity of the testator. On the latter point the result of his testimony was, that at the time the will was executed the testator was not of sufficient capacity to dispose of iiis estate. After describing bis condition, which, if true, is inconsistent with the idea of a sound disposing mind such as the law exacts ; the witness says, “ At the time the Cochran will was written, I would not have dealt with him at all, unless I wished to have taken advantage of him.” This witness, be it remarked, had been examined before, and had given testimony at variance with this evidence. The question then is, whether, under this state of facts, the plaintiff ivas at liberty to examine him as to his testimony on a former occasion, and to give in evidence the testimony then given. And that he had this right is ruled in Cowden v. Reynolds, 12 S. & R. 281, and in The Bank of the Northern Liberties v. Davis, 6 W. & S. 289. It is true, as a general rule, a party who calls a witness shall not be permitted to discredit him, on finding his testimony is against him. But this rule admits of exceptions, of which this case presents an instance. On the authority of the cases cited, we see no objection to the course pursued in allowing the cross-examination of the witness, and in admitting proof of the evidence given by the witness when he was examined before. We see no error in permitting the plaintiff to examine the witness as to what he had testified to before, respecting the sanity of the testator, &c., nor in admitting in evidence the notes of the testimony of the witness on a former trial.

But then the question recurs, what Ayas the duty of the court after the evidence AVas given ? It Ayas to submit the whole evidence of the witness on this as well as on the former trial to the jury, and leave it to them to say whether the evidence proved that the testator Ayas sane at the time the will Ayas executed, with, however, a strong expression of opinion, that under the circumstances in which the Avitness had placed himself, very little credit ought to be attached to his testimony, whether given before or on this trial. But instead of pursuing this course, the court undertook to decide that his testimony was entirely repudiated, to admit evidence of the handwriting, and to give it the same efficacy as if the witness had been dead or out of the jurisdiction of the court. The court in the charge say, “ The plaintiff has contradicted his OAvn witness, and, I think, shown pretty distinctly that he is entitled to but little respect at tho hands of cither court or jury. The plaintiff discards wholly that part of his testimony Avhich speaks of the capacity of the testator, and in so doing, he utterly repudiated the whole of the testimony of the witness, ‘ for he cannot set up so much of his witnesses’ testimony as makes for him, and reject or disprove such as is of a contrary tendency.’ The Ayhole falls together, and his testimony is thus entirely repudiated: 6 W. & S. 288. The testimony of Chessman being out of the case for any purpose available to the plaintiff, have we the requisite proof of this will by two competent witnesses? Chessman’s testimony being wholly discarded, I think he must be considered as standing in the situation of a witness whose testimony or attendance cannot be procured, and that the next best evidence must be resorted to, namely, that of proving his handwriting. One of the subscribing witnesses being dead, and the other unavailable, their handwriting must be proved; and if done to the satisfaction of the jury, the execution of the will is primá facie established, and the law requires no further proof on this point.” The idea that Chessman’s testimony was repudiated, is derived from an expression in The Bank of the Northern Liberties v. Davis, taken from Lowe v. Jolliffe, 1 Black, 363, but not there used in the sense attributed to it in the charge, and certainly not intended to justify the court in considering the testimony so much out of the way as to introduce secondary evidence of handwriting, giving the same all the effect it would have had, if he had not been examined in consequence of death, or being out of the jurisdiction of the court. The course pursued by the court was a wrong to the defendants, and it deprived them of the benefit of Chessman’s testimony, which, if believed, unquestionably proved that the testator was not in a fit condition to execute a will.

It is now contended the court erred in charging the jury that they may find the testator sane at the execution of the will, from his condition before and after that time. This point is predicated on the fact being found by the jury, that before and after the 24th September, 1844, there was a general imbecility or derangement in the mind of the testator. That he was deranged after that date, was proved by the most irresistible evidence; but whether before, is most strenuously denied. It is admitted on the part of the plaintiff, that John Hays was a man of weak intellect; but it is denied that he was a lunatic or of unsound mind until within a few months of his decease, when, it is coneeded by all parties, he was entirely deranged. In proof of his derangement before the execution of the will, the defendants gave in evidence a commission of lunacy, issued in December, 1844, and inquisition finding John Hays a lunatic, with lucid intervals, and that he had been a lunatic for forty years before that time. The defendants rely on the inquisition, with other proof, to support the allegation of general imbecility of mind. The inquisition is primá facie evidence of the facts found by the inquest, but not-conclusive. And whether a general derangement is proved before the date of the will, is an important fact to be determined by the jury. The presumption of law is, that the testator is sane until the contrary is shown; but when a general imbecility of mind is proved, the burthen of proof is thrown upon the opposite party, who must show that it was executed in a lucid interval,' and when the testator had understanding and capacity sufficient to execute the will. Supposing the jury should believe that the testator was of unsound mind before the execution of the will, then the important question arises as to the nature of the proof the law requires. On this point, the court charged in effect, that if the evidence established the fact that there was a lucid interval both before and after the day of the date of the will, the jury was at liberty to say that he was sane at the time the will was executed, in the absence of proof of his situation on that day, even against the double presumption of the inquisition and the evidence. From this principle I take leave to enter my dissent. This principle is founded on the notion, contrary to the current of the decisions, that a lucid interval is presumed to continue; whereas it is well known, that a man insane may be well to-day, insane to-morrow, better the next day, and hopelessly diseased the third. To allow the jury to make such an inference would be most unsatisfactory, and may lead to great imposition on that unfortunate class of persons,who need so much the protection of the courts. Fraud would be the inevitable result, as the artful and designing would seize the projuer time, when the mind was jmostrated by disease, to obtain from them a disposition of their estate. The very fact that no evidence is given bearing on the act of execution, is sufficient to expose its dangerous tendency and its certainty to mislead. It certainly imposes no hardship to require that, under such circumstances, evidence of the most unexceptionable kind and character, bearing on the very act of disposition, and confined to the time of execution, should be given. Stringent rules only can protect persons placed in this melancholy condition. It is much better, in this country at least, Avhere the law makes an equal distribution of estates, that a person should die intestate, than to expose them to the risk of imposition and fraud, at the instance of persons interested to deceive them. In Harrison v. Rowan, 3W. C. C. Rep. 586, Washington, J., says, “The soundness of the testator’s mind is to be judged of from his conversation or from his actions, at the time the will is made, or from both taken together.” Again, he says, “ It must also be remembered that the fact of competency is to be decided by the state of the testator’s mind when the will was made. And although evidence of the state of his mind and of his bodily health, before and after that time, may be given, in order to shed light upon its condition at that period, still such evidence is no otherwise to be regarded. For although it should be proved, that at a prior or subsequent day, he was incapable of making a will from the effect of a temporary cause — such as fever and the like — it will not follow that ho was so when the will was executed.” The converse of this proposition is equally true; for where a man is a lunatic, it does not follow he has a lucid interval from proof that he was sane before and after a certain period. To the same point is the case of Stevens et Ux. v. Vancleve, 4 W. C. C. Rep. 262. The only point of time, as is there said, to be looked to by a jury who are to decide on the competency of a testator to make a will, is that when the will was executed. Also, Lessee of Hoge v. Fisher et al., Pet. C. C. Rep. 163. In Dodge v. March, 1 Hag. 612, Sir John Nichols, speaking of a case in many of its features closely resembling this, says, unless the court is prepared to give up all the principles heretofore acted upon, it must demand the most decisive proof of the complete absence of influence and excitement at the preparation and making of this asserted will; it must require unimpeachable evidence of unbiassed volition and of clear capacity. It must, in fact, expect to be shown instructions coming from the deceased himself, and an execution in the presence of witnesses above all suspicion. It will be for the jury to say whether proofs of these indispensable requisites are or are not wanting at the time of the factum of this will. If the jury should believe that the testimony of Chessman does not clearly show that the testator was, at the very time of the execution of the will, of a sound disposing mind, memory, and understanding, it is an invalid instrument, and the plaintiffs cannot recover. The case depends on the testimony of the subscribing witnesses, who alone were present and know the state and condition of the testator at the time of the factum of the will. In connexion with tho question on the execution of the will, it was the duty of the court to charge, as they were requested, that if they believed the testator was of weak mind, and unable to read, the jury should be satisfied that he was acquainted with the contents of the will. It is not necessary for the devisee to prove to the jury that the will was read in the presence of witnesses. In general, this is to be presumed. But if the testator is blind or incapable of reading, or if a reasonable ground be laid for believing it was not read to bim, or that there was fraud in the transaction, it is for the devisee to satisfy the jury that the will was read, or that the contents were known to the testator: Harrison v. Rowan, 3 W. C. C. Rep. 580.

We see no error in admitting in evidence the will of the 26th September, nor the testimony in relation to it, nor in asking Chessman whether John Hays was rational or otherwise, at the time Cochran was there to draw his will. The evidence had a bearing on the fact of sanity, which is a disputed fact in the case.

The counsel for John Harden complained that the court did not answer their second point. But, from the omission, they have received no injury. The court ought to have answered it in the negative; for, admitting all the facts to be as stated, it is no defence to the action, as was ruled in Reed v. Reed, decided at this term. If the defendants have a remedy, it is by action, and not by a detention of the possession.

Judgment reversed, and a venire de novo awarded.


source: Caselaw Access Project

author: Rogers, J.

license: Public Domain

text:
    Dennison v. Leech.
    A judgment for a greater sum than is declared for, is erroneous.
    And where a judgment is properly taken by default, under a rule of court or an affidavit of the amount due, and a narr. is filed for a less amount, a subsequent amendment of the narr. will not cure .the error.
    Where a judgment is opened generally, the burden of proof is as in other cases.
    In error from the District Court of Allegheny.
    The plaintiff filed an affidavit of the amount due, $473.75, and filed a narr. after the return-day, and took judgment. The amount laid in the narr. was four hundred and seventy-three cents. This was amended so as to read $473.73.
    On affidavit the judgment was opened, and the defendant let into a defence as to so much as was not admitted to be due. On the trial, the court considered the burden of proof was on the defendants; on which they declined • accepting the order opening the judgment, and it was reinstated by the court.

      II. W. Williams, for plaintiff in error.

      Hamilton, contrá.

      Sept. 20.
   Rogers, J.

We are of opinion that the judgment by default cannot be supported, either under the act of 13th June, 1836, or the rule of court. The declaration was filed before judgment, and after the return-day of the writ; but to entitle a party to judgment by default under the act, he must file his declaration at the time prescribed, viz: before the return-day: Forman v. Schricon, 8 W. & S. 43. But it is said the judgment is regular under the 66th Rule of Court, which entitles a plaintiff to judgment in debt or assumpsit as for want of an appearance when he files with his prsecipe an affidavit stating the amount verily believed to be due, unless defendant shall file an affidavit of defence with his appearance. Perhaps we might agree with this view of the case, but for the fact that the plaintiffs filed a declaration, in which they demand less than the amount claimed in their affidavit, viz: four hundred and seventy-three cents, instead of four hundred and seventy-three dollars and seventy-four cents. It is well settled that a judgment rendered for a sum greater than the amount demanded in the declaration is erroneous. It is true the judgment may be sustained by remitting the excess, but I suppose the plaintiff will be unwilling to take a judgment on these terms. Since the rendition of the judgment the plaintiff has been permitted to amend, but the amendment will not have a retrospective effect, so as to validate a judgment which when taken was erroneous: Dox & Mercer v. Dey, 3 Wend. 356; 4 Pick. 356; Rowell v. Bruce, 5 N. Hamp. 381. The court, after overruling the motion to set aside the judgment, oponed it, and let the defendant into a defence. The cause was put to issue on the pleas of non assumpsit, non assumpsit infra sex annos, payment with leave, &c., and on the trial it was decided, that the burthen of proof was on the defendants, who then declined accepting the order opening the judgment, which was then set aside and the judgment reinstated. This latter order, it must be presumed, was made with the assent of all parties, for if not made with the defendants’ assent, they should have tendered a bill of exceptions, and if it did not meet the approbation of the plaintiff, they should have insisted on a verdict. It must therefore be considered an order made with the concurrence of all parties, by which each is remitted to his rights under the judgment by default. Whether this judgment is erroneous, is the only question; and that it was, will be seen by the preceding remarks. Although this view disposes of the whole case, it may not be amiss to express an opinion on the practice. The judgment was opened generally, and the defendants let into a defence without restriction. Under such an order, the judgment remains as a security for whatever may be found due; but in all other respects the trial must be had as if no judgment had been entered. The court may open the judgment on terms, and perhaps they ought to have done so; but having thought proper to adopt a different course by opening a judgment without conditions, the consequence is, the burthen of proof on the pleadings is on the plaintiffs and not the defendants.

Judgment reversed, record remitted, and procedendo awarded.


author: Coulter, J.

text:
    Elmes v. Elmes.
    After a decree for a divorce, depositions taken on the part of the respondent in the court below, cannot he read on hearing of the appeal.
    Appeal from the Common Pleas of Allegheny.
    The facts presented by the record were: that a libel for divorce was filed by the wife of the appellant, a subpoena served, and a decree made on the 9th February, 1847. The evidence was, that the parties cohabited about a week after the marriage, during which time the husband treated the wife with great harshness, exhibited a cruel temper towards her, declared his hatred of her, and caused her to pass the night in weeping. That he never supplied her with money, and left the town, carrying his effects with him. It was further stated that her health had been destroyed in consequence of his unkindness.
    On the 9th February, 1848, the respondent appealed, and took depositions under a rule entered in the court below. These depositions contradicted the allegations of the libellant’s witnesses, one of whom was examined, and retracted or denied her former assertions.
    It was stated in the opinion of this court, though the fact did not appear on the record, that the wife after her divorce contracted a second marriage with the knowledge, and without objection by the respondent, and that she had subsequently borne a child.

      Dunlop, for appellant.

      McCandless and McClure, contra.

      Sept. 22.
   Coulter, J.

(after stating the case.) — We do not regard these depositions as any part of the record. The statute declares that appeals shall be conducted in the usual manner; meaning, I presume, in the same manner that other appeals from the Common Pleas are prosecuted. In Dyott’s Appeal, 2 W. & S. 557, the court ruled that in the settlement of the accounts of assignees, the Supreme Court shall not go beyond the exceptions made before the auditors or in the court below. And even on an appeal from the Orphans’ Court, in which case the proceedings are de novo here, this court refused a rule to take depositions for the purpose of supplying matters not appearing in the court below, declaring at the same time, that if after hearing the case, they should be of opinion that justice and equity required it, they would allow the depositions to be taken. But in this case, justice and equity do not require that this court should grant leave to take depositions, or consider those irregularly taken, and not before the court below. This court is essentially a tribunal for the correction of errors of courts below, even where the case is brought here by appeal. It would be an intolerable hardship on suitors, if one party was permitted to fold his arms and stand by, whilst the court below proceeded to decree upon testimony regularly taken according to the statute, and then, following the bent of his inclinations, at the last hour bring the case here to produce a different decree on testimony which he wilfully withheld from the court below. The cause would not be thus equally balanced, nor the scales of justice held even. As to one party, we should be a court of error, as to the other, a court of original jurisdiction. What effect this testimony of the respondent, taken after the function of the court below was ended by a final decree, would be entitled- to, if any, I express no opinion, as it is not before this court. On the testimony before the Common Pleas, the decree made by that court is sustained. It is unnecessary to recapitulate that testimony, as it is on the record. To render the condition of a wife intolerable, and her life burdensome, it is not necessary that .there should be blows, or cruel and barbarous infliction of batteries that endanger her life. There may, without that, be such indignities to her person as to render her life a burden. The husband is bound to the observance of duty to his wife; and as marriage is founded on the original constitution of the sexes, and dignified by strong and peculiar sentiments of affection, delicacy, and honour, all treatment which violates these principles, habitually and constantly, and proceeds avowedly from hatred, revenge, and spite, and which renders even the hours devoted to repose, hours of weeping and distress, must render a woman’s condition intolerable, and her life burdensome. Yet all these, and more,, were present at this ill-fated marriage, to induce the libellant to seek peace in the dissolution of a contract which the respondent admitted was entered into on his part to revenge former slights or rejections of his suit. It would require a strong case of error or mistake in the court below to induce this court under the circumstances to reverse the decree. That decree authorized the libellant in its terms, “to resume all the rights of a single woman the same as if no. such marriage had ever existed between the said parties, and all the duties of the marriage state are hereby henceforth dissolved.” About ten months after this decree, the libellant being a young woman, entered again into the marriage state, in the same vicinity where the respondent resided. He had taken no appeal, — it is probable that the second contracting parties did not know that an appeal was allowed by law. He made no objection to the courtship, did not forbid the banns, and the nuptial sheets of the second marriage had the holy benediction. From this union, in due time, a child has sprung, which we are asked to sever from its natural allegiance, and transfer it to a man whom it can never call father without imputing shame and crime to its mother. How many hearts are we asked to crush in order to gratify the obstinate wilfulness of the respondent! Is it not more just that he should endure the consequence of that wilfulness, even if it be pain, than that innocent hearts should suffer in long time to come ? But who can say that it is affection on his part, new-born, and springing from oblivion, that now prompts him to demand this woman and child as his, and take them from another ? Would it not rather appear to be a disposition to accomplish his original purpose, fully set forth in the testimony, and gratify hatred and revenge ?

Under all the circumstances of this case, we affirm the decree of the Court of Common Pleas.

Decree affirmed.


text:
    Lee v. Lee.
    To authorize a court to reject parol evidence of a contract, it must appear on the record that the witness was speaking of a written contract.
    Where there is evidence that there was a written agreement for a sale made, and the parties spoke of it as concluded, and took it away for execution, the court cannot withdraw the case from the jury because from other evidence it would seem that the paper referred to was a memorandum for a will: and strong presumptions in odium spoliatoris are to be made against the vendor, where it has been traced to his possession and is not produced.
    Where a father purchased tract A. in his own name with the money of the son, and then agreed with him that the amount thus paid should go into tract B., the possession of which was delivered to the son by the father under a contract for a sale, paying a yearly sum to the father for life, and the son gave notice to his tenant of tract A., who then paid rent to the father, and the assessments were respectively changed, and the son continued in possession of tract B.: there is evidence for the jury of a parol sale which is not within the statute of frauds.
    In error from the District Court of Allegheny.
    This was an ejectment by William Lee, who held the legal title, against the widow of his son Ralph and another. And the main question was, whether the defendants’ evidence was sufficient to authorize them to go to the jury on their allegation of a sale by William to Ralph Lee.
    On the trial of the cause before Lowrie, J., there was a point made, which is sufficiently stated in the commencement of the opinion of this court. It was clear that the grounds of the action of the court did not appear on the bill of exceptions.
    The defendants proved (to the court) the admissions of plaintiff that there was a written contract between himself and Ralph Lee, which had been obtained by plaintiff to make a copy, with an intention of returning it. This agreement was one which was made when the plaintiff and his two sons, Ralph and Thomas, were together. It was in writing, but plaintiff did not say that Thomas, who did not accede to it, was present when it was executed.
    The defendant was then examined, and said she had seen the paper referred to, but the plaintiff’s signature was not on it, but he and Ralph took it to town to have it executed. Search had been made, but the paper could not be found.
    The plaintiff was then examined, and denied its existence, and said the paper referred to was the heads of his will, from which his will had been drawn out and executed; that he could not write; this paper was handed to a Mr. Lee, who drew the will and did not return the paper.
    Thomas, a son of the plaintiff, stated, he saw the paper on the table in 1840. His father called it a bargain, and said it was over, and to make Ralph sure. The paper was written, but there were no signatures.
    Lee, the scrivener, testified that in 1841 he drew a will for the plaintiff, who handed him a paper called the heads of his will, in the handwriting of his son Ralph. In this the premises in question were devised to his son Ralph, on paying $300 to his sisters; the Bakerstown farm was devised to Thomas, and other property to his other sons. There was nothing in the paper about a payment to plaintiff for life, and the witness returned the paper to the plaintiff with the will.
    His honour then said there was not sufficient preliminary proof of the existence, execution, and loss of an agreement, to leave to the jury.
    The defendants then proved the admission by plaintiff, that his son Ralph, when he came of age, was about leaving home, but was persuaded by his father to stay with him until he was twenty-five, on a promise of $500. That they had then selected a piece of land (called the Bakerstown farm), which was purchased for Ralph, in connexion with Joseph Lee, Ralph’s share coming to $800, and his $500 being invested in that way.
    Fearing his son might be injured by bad company, they had agreed the deed might be made in the name of the plaintiff. Ralph resided on this farm for some time, and it was plaintiff’s intention he should have that, and his son Thomas the homestead; hut, for family reasons, Ralph ivas induced to move to the homestead — the plaintiff removing to Allegheny town — and pay plaintiff a rent of $50 per annum. He continued there for some years, and plaintiff then, desiring to make a change, made a positive agreement with Ralph that the $500 invested in the Bakerstown farm should be transferred to the homestead; that Ralph should pay him $50 per annum, and plaintiff be discharged from liability to repair. On the plaintiff’s death, the land should be Ralph’s, paying certain sums to his sisters.
    Thomas Lee stated he remembered the bargain in 1840; he saw the paper; his father said he was going to make a will, but this was to make Ralph sure. The $500 was to be taken out of the Bakerstown farm and put into the homestead, for which Ralph was to pay $50 per annum, and have the land at his father’s death. Ralph then lived on the homestead, and the plaintiff in Allegheny town. The plaintiff had offered him various articles if he would say this was only a will.

      The defendants gave other proof of similar admissions of the existence of a bargain of the same character as those already stated; and they also proved by the vendor of the Bakerstown tract, that the sale was made to Ralph, who wished to have the deed in his own name. The plaintiff paid $1000 down, and Ralph subsequently paid the mortgage for the balance, $350.
    The title-papers showed the conveyance was made to Joseph and "William Lee, in 1829, and that in 1830, Joseph conveyed his moiety to "William, who conveyed that moiety to one Richards, in 1845.
    The defendants showed that the Bakerstown farm was assessed to Ralph Lee from 1834 to 1840, and that in 1841, it was assessed to plaintiff. The homestead farm was assessed to Ralph Lee from 1841 to 1843, and in 1844 it was assessed to his widow, the present defendant, they having continued in possession since the alleged agreement for the sale. From 1837 to 1840, and during previous years, the Bakerstown farm was leased by Ralph, and in 1841 the same tenant occupied and paid the rent to the plaintiff for two years, under a notice, by Ralph, that he had nothing more to do with that place.
    On these facts, his honour withdrew the defendant’s evidence from the jury, and directed a verdict for the plaintiff.

      Oct. 2.

   Coulter, J.

The first bill of exceptions is to the order of the court which compelled the defendant to commence his case by exhibiting his written contract. If the defendant in his evidence, or perhaps even by the statement of his attorney, had disclosed that the same contract respecting the land of which he proposed to give parol testimony, was embraced in a written contract, then it would have been out of place to give the parol evidence of its contents, until the existence and loss of the written contract was duly proved. But it does not appear on the paper-book that the witness, who was stopped by the court, alluded to any written contract, nor indeed does it appear that the attorney made any reference to.it. As the case stands, therefore, we do not perceive that the court had any sufficient grounds for arresting the counsel in the mode of presenting his case, which he was about to pursue. This point is of no consequence, however, in the determination or consideration of the cause; and I only notice it because the act of Assembly requires an opinion to be expressed on all the points made in the court below.

The next bill of exceptions regards the exclusion by the court of any parol evidence of the contents of what the defendants alleged to he a written contract for the sale of the premises in question; because, in the opinion of the court, the previous existence and execution of the contract was not proved, and the paper, in the language of the court, was unfinished, and was merely the heads of a will, drawn up for the plaintiff by his son Ralph. It must be observed, however, that the court had nothing to do, in that initiative proceeding, with the contents or effect of the paper. The question, in such cases, before the court is, whether primó facie the party has proved that the paper was executed, did exist, and has been lost, and due search made for it. The court have nothing to do, in the primary inquiry, with its contents or its legal effect; that belongs to the trial in chief, when both parties are heard. [His honour here stated the evidence of the existence of a contract.] The plaintiff then interposed testimony to prevent parol evidence of the contents of this writing from being received. The court heard the testimony of the plaintiff himself. [His honour here stated the testimony of Lee.] Whereupon, the court excluded all evidence of the contents of the paper; as to the existence of which, Hart, Hannah, and Thomas Lee testified. In this, we think the court erred; because there was clear and distinct primó facie proof by Hart, that such an agreement existed. The plaintiff told him so. Hannah Lee saw the paper written, and the plaintiff and Ralph took it to town to have it executed, in the winter of 1840; and Thomas Lee says he saw it on the table at the same time; and the old man told him the contents of it. This affords the strongest kind of corroborating evidence of Hart’s testimony, whose character is in no way impeached.

The court say, however, that according to Hannah and Thomas Lee the instrument was inchoate, and rely upon the testimony of the plaintiff that it was the heads of his will. But there was the testimony of Hart, who said that the plaintiff told him he had entered into a written agreement for the sale of the land with Ralph, and that he had got it from him to have it copied. The nature of the evidence given to the court by the plaintiff, shows that it was out of place, because there was conflicting testimony, which required to be weighed and balanced. The credibility of the witnesses was to be adjusted, inasmuch as the evidence of Hart was in direct conflict with that of the plaintiff. All these things were within the province of the jury. But the main objection is, that the court determined what were the contents of the paper. They say it was carried to town and used as the heads of a will, and they suppose it was never intended for any other purpose. Now three witnesses say that it was a bargain, an agreement, and none of them heard any mention of the heads of a will. In addition to this, the paper which plaintiff calls the heads of his will was not used, if indeed it was the same paper, for more than a year after it was drawn up and carried to town, as Hannah Lee says, for the purpose of being executed. There is in fact no evidence of its being the same paper, but a strong inference flowing from the facts that it was not, inasmuch as it was not used for so great a length of time for that purpose, and from the fact that there was a considerable amount of other real estate, with which Ralph had nothing to do, embraced in that paper. And as it appears from the evidence that Ralph was the confidential and trusted son, who had clung to the old man when the others had left him, and as the old man could not write, the presumption is natural, that he would get Ralph to write the heads of his will, when he would carry it to a scrivener to have the will drawn. And the reason for putting the devise to Ralph in the will is quite as obvious, as he had only an agreement, subject no doubt to conditions which rendered the estate subject to encumbrance during the old man’s life, and the payment to his daughters after his death. There is also a striking feature in this heads of a will, made so by the subsequent testimony in the cause, which shows it to have been a different paper. That is, as the scrivener Lee says, there was no provision for the annual payment of $50 to the old man during his life, because such provision would have been totally unnecessary in the will. It was in full proof, by an unimpeached witness, that the contract of sale between plaintiff and Ralph of the premises in dispute was in writing, and that he, the plaintiff, had borrowed it from Ralph to have it copied, and would return it.. It would seem that he never did return it, for after diligent search among the papers of deceased, it cannot be found. The plaintiff alleges that he left it with the scrivener, but the scrivener says he delivered it back. If the plaintiff had shown even that paper, it might have thrown some light on the subject. A jury might have inferred from the facts, that as plaintiff destroyed the will after the death of Ralph, for which there was no necessity, he may also have destroyed what was called in the evidence the bargain or agreement. He had notice to produce it. He produced nothing but his own oath, that he never made such an agreement. As the plaintiff did not produce the paper, nor the paper which he alleged was the same, and as the last gleam of evidence traces it to his possession, under the circumstances of this case, its execution and original existence ought to be presumed. Where a deed or other paper is proved to be destroyed or suppressed, or there is vehement suspicion of its having been done, the presumption in odium spoliatoris applies in favour of the party who claims under such paper, though the contents are not proved: Askew v. Odenheimer, Bald. 391. If the plaintiff could prove that the witnesses were mistaken, and that the paper was but the heads of a will, no injury would ensue to him; it would only transfer the issue to the jury, whose peculiar province it is to determine the credibility of witnesses and the contents of papers, under the instruction and direction of the court. Before that tribunal the party himself could not be allowed to prove the nature and character of the paper, contrary to the evidence of unimpeached and disinterested witnesses. Its character and effect must depend on its contents, and with these the court has not to deal in the initiative proceeding. We are of opinion that the court erred in rejecting parol evidence of the contents of the written paper, or what was sworn to be an agreement for the sale of the land in dispute.

The defendant then produced a mass of evidence to establish a parol sale by the plaintiff, of the premises in dispute, to Ralph, his son, now deceased, whose widow she is; and also the payment of part of the consideration, and his taking possession under that sale. At the close of which evidence, the counsel for the plaintiff requested the court to charge the jury that the testimony adduced by the defendant, and the facts given in evidence by them, are not sufficient in laws to bar the plaintiff from recovering in this action, and that the facts so given in evidence be excluded from the consideration of the jury. Wherefore the counsel for the defendants prayed the court, before adopting that course, to order and direct that the counsel for the plaintiffs should demur, according to the usual practice; and that, unless a demurrer is filed, the defendant’s counsel shall be permitted to address the jury, and argue upon the facts of the case. Whereupon, the court refused to direct the counsel for the plaintiffs to demur, and refused also the prayer of the defendant’s counsel for permission to address the jury. To which the defendant’s counsel excepted; and the court sealed the bill.

The first thought which struck me, when this part of the case was broken, ivas, that the oath prescribed for jurors, and which, I presume, was duly administered in this case, requires each to swear “that they will well and truly try the issue joined, and a true verdict give, according to the evidence, unless dismissed by tbe court, or the cause be withdrawn by the parties.” In this cause, the evidence having been given to the jury, and the cause not withdrawn by the parties, nor they dismissed by the court, it was their sworn duty' to render a verdict according to that evidence, subject to the instructions of the court. It would seem, therefore, that the course adopted by the court was an invasion of the rights of the jury. When the court request the counsel for the party to reduce his whole evidence to writing, and then reject it as insufficient, the coast is clear both for the jury and the party. There is no evidence offered to the jury, and they are free from embarrassment. But here they were required to render a verdict, upon what? The evidence given by one side alone. The defendant’s evidence was relevant to the issue, and competent to be considered; and therefore, by the tenor of their oaths, the jury were bound to render a verdict upon it. It is very seldom that a jury will undertake, after a clear, full charge from the court, with proper indications of the duties of each department, to render a verdict contrary to the law, as laid down by the court; and when they do, the remedy, according to our system, is granting a new trial. Even although cases may occur, where inconvenience may be the result, it does not justify a departure from the well-defined practice. If the party who apprehends inconvenience will adopt it, a remedy is at hand, in the demurrer, in cases like the present, or in the mode already indicated, of requiring the opposite party to reduce his evidence to writing, and then moving the court to reject it, or where it is offered by the plaintiff, by motion for a nonsuit. In either case, counsel have a fair field for argument, without a foregone conclusion by the court. And the jury is relieved either by being discharged, or the cause withdrawn by the court, or by no evidence being submitted to them. Another aspect of the case was strongly pressed, to wit: That the ancient rights of the attorney and party were disregarded by refusing his prayer to be allowed to address the jury. I regard the rights of the attorney as the rights of the citizen; In every civilized country which enjoys the trial by jury, the profession is its great bulwark — a profession more honoured and more trusted, in proportion to the advance in constitutional liberty. When it falls, security and law will fall with it. A party has a right to be heard in a court =of justice, and the attorney represents him. Who can say that the conclusions of the judge might not be changed or modified by the argument of the attorney, addressed to .the jury ? In this case the court, in their reasons for the ' course they adopted, said the court would have heard the counsel as long as he pleased. But then that would have been after an opinion publicly expressed. But if they were willing to hear him as long as he pleased, why not permit him to address the jury for a reasonable time ? The true reason is probably found in the fact, that the court was determined to withdraw the evidence from the jury, and yet require them to render a verdict. Accordingly, the court say to the jury: “And that you may find no possible difficulty in finding that the plaintiff has proved his case, I do withdraw all the defendant’s evidence from your consideration. This leaves you no evidence on which to found your verdict, but the plaintiff’s title, and of course your verdict must be in his favour. I consider the whole responsibility of the case thrown upon the court.” This summary excision of the defendant’s evidence, exclusion of his counsel from a hearing, and mandate to the jury to find a verdict upon the testimony of the plaintiff alone, appears to me to have been a high exercise of authority, for which I never read any precedent in our books. We are of opinion that there was error in the proceeding. In the case of Brawdy v. Brawdy, 7 Barr, 157, which the court refer to as authority — although the case was not then reported— the Chief Justice states the true rule : — “ In cases like the present, where a chancellor sends an issue to be tried by a jury, his conscience, as well as that of the jury, must be satisfied. And when his conscience is not satisfied, ho may direct any number of new trials.” He adds, that when our courts are giving effect to equity principles through the same medium, that is, a jury, they have the same control over the result of the evidence. Our courts, he says, cannot give judgment non ohstant\ veredicto; but rather than give judgment in conformity to it, on insufficient evidence, it would be proper to grant new trials for ever. That undoubtedly is the true remedy — a new trial — unless the party demur before verdict. The symmetry of our system is thereby preserved.

The next point on the record that requires to be resolved is, whether the parol testimony given by the defendant did establish a parol contract of sale, and such part performance by Ralph as took it out of the statute of frauds, or not. It is necessary as briefly as possible to recapitulate that testimony. [His honour here stated it.]

The contract is clearly and indisputably proved; and also that the interest of Ralph in the Bakerstown tract was the consideration in part, which Ralph had earned by long years of faithful service. Many a drop of his sweat had fallen on the land in dispute, to enrich it for his father. Was then the other, and only other essential element to make a parol contract for the sale of land valid, present in the case? Was possession taken, and given in pursuance of the contract, and was the change of possession by some notorious act ? The tenant of the Bakerstown tract attorned to the plaintiff, and acknowledged his right to the possession instead of Ralph, and paid the rent to him. It is in vain to say, as the court below do, that the legal title was in the plaintiff — the equity was in Ralph, and under the circumstances, the whole equity to an undivided moiety, the interest having been purchased for him, and principally with his money. Under this equity he entered and claimed full property and dominion, which was fully recognised and approved by plaintiff, and the law approves it. The attornment of Ralph’s tenant was so notorious that the assessor of the township knew it, and assessed the land and returned it for the year 1841, in plaintiff’s name. The plaintiff proposed to sell it or give it on terms to Thomas, who refused to buy, and he did sell one-half in severalty of the whole tract, and therefore put it out of his power to restore Ralph or his heirs to their former situation if the parol contract is declared null. Is it not therefore so far executed, that it would be unjust and an indirect fraud upon the heirs of Ralph to rescind it? With respect to the premises in question, on which Ralph lived at the time of the contract, there was the notorious fact as to change of' possession in the only way in ■which it could be done. After the contract the land was taxed in the name of Ralph, which before was taxed in the name of the plaintiff. This notorious act of a public officer, shows that the sale was known to him, and this fact was manifested by the official records of the township. It must have been known to both parties, and authorized by both of them. The case cited by the court, of Brawdy v. Brawdy, 7 Barr, 157, is quite aside of the present; and is in my judgment rather an authority in favour of the defendant. There John sold to his brother Moses, and told his tenant that he must pay the rent to Moses. When the rent became due he offered the rent to Moses, who refused to take it, and told him to settle with John, which he did. At the end of the year the tenant left, and John entered and remained in possession. There was no change in the assessment, the land remained in the name of John as before. The Chief-Justice says, “that the evidence leaves it in doubt whether there had been an actual attornment. The uncertainty about the true state of the transaction indicates that it was intended to confound the vendor’s creditors, and the court very properly instructed that the evidence had failed to prove a case proper for the interposition of a chancellor.” Here there are no creditors interfering, no uncertainty about the transaction. There is the clear attornment of the tenant of Ralph to the plaintiff, and the change of assessment, as to the Bakerstown tract. With respect to the premises in dispute, there is the public notorious act of the change of assessment in pursuance of the contract: the only change which in fact could be made. But if the change was sufficient, apparent, and notorious as to the Bakerstown tract, that was sufficient. It was a public notorious act, which would put the neighbours on their inquiry. And the sale of a moiety of the whole tract in severalty put it out of the power of the plaintiff to restore the widow and children of Ralph to the situation of the husband and father. The doctrine in McKee v. Philips, 9 Watts, 85, that what puts a party into a situation which is a fraud upon him, unless the agreement be performed, is sound to the core, and accords well with our act of 1834, which provides that the parol contract shall be valid in cases where it has been so far executed that it would be against equity to rescind the same. I refer also to the case of Brinker v. Brinker, 7 Barr, 53. This court is of opinion that this case is brought within the range of the exceptions to the statute of frauds, and within the principle adopted in our own statutes of 1818 and 1834, authorizing the specific execution of parol contracts for the sale of lands, and that the attornments, the simultaneous change of the assessments of both tracts by the officer of the township, and the sale of one-half the Bakerstown tract in severalty, were such acts of notoriety as to give the public notice of the sale, and consequent change of possession and dominion, and sufficient to rescue the case from the dominion of the statute of frauds — and that consequently the court erred in determining the reverse.

Judgment reversed, and a venire de novo awarded.


author: Gibson, C. J.

text:
    Coleman v. Carpenter.
    A presentment of a promissory note on the last day of grace, and a refusal to pay, with notice to the endorser on the same day after three o’clock, renders the endorser liable.
    In error from the District Court of Allegheny.
    Assumpsit against an endorser of a note. The evidence was, that a demand was made at the residence of the drawer, on the last day of grace (Saturday), and the answer was that he was not at home, hut would be at home on Monday and pay the note.
    The jury found the notice of dishonour was served on the endorser on the same day between three and six o’clock, P. M., and judgment was entered for the plaintiff. .
    The two points excepted to were the charge that the demand and notice were sufficient and not too soon.

      Sept. 21.
   Gibson, C. J.

Though there was once a doubt in respect to the point before us, it is now settled. It was supposed by intelligent lawyers that there is a difference in this particular between foreign and inland bills; and that the latter, not having been originally within the law merchant, do not authorize presentment and notice on the last day of grace, the acceptor, it was thought, having the whole of it to make payment on the principle of the common law. But days of grace themselves are creatures of the mercantile law; and if the payment of inland bills were not regulated by it, days of grace could not be predicated of them. All doubt on the subject, however, has been removed by the later cases. Indeed, it is hard to find a reason for supposing that the statutes of William and Anne had not put them on a footing with foreign bills in every respect. By the statute of Anne, promissory notes are put upon the same footing; and they are subject, with foreign and inland bills, to the rule for presentment and payment, but not to the rule for protest. That is, perhaps, the only difference. Now it is shown by Haynes v. Birks, 3 B. & P. 602, Burridge v. Manners, 3 Camp. 193, Hume v. Peploe, 8 East, 169, and Mx parte Moline, 19 Ves. 216, that the contract of the acceptor is to pay on demand, and that it is broken if the bill be not paid the instant it is presented; from which it results that notice may be given the same day. True, an action cannot be brought till the next day, for the anomalous reason that the acceptor may pay after refusal, if he take the trouble to seek the holder. A better one would be, that as there are no fractions of a day but such as are made by statute or the custom of merchants, the imjoetration of a writ is an act which covers the whole day. The profession has acquiesced in the principle of the preceding cases; and the text-writers have taken it for granted, the only remaining doubt being, whether notice is good when given on the day, unless there was an unqualified refusal to pay. If the doubt be founded, there is no substantive difference between the rule of the commercial, and the rule of the common law. ■ It would result that the acceptor has the whole of the last day for payment, unless, like a creditor who waives objection to the quality of a tender in bank-notes and rejects it for some other reason, he chooses to waive the prematurity of the presentment, but refuses to pay at all. The line has not been very distinctly drawn; for he has certainly been allowed after presentment and refusal on the same day, to avoid the consequences of a protest. Better had it been if the judges had taken a determinate course in every case. The contract, being to pay at presentment, admits of no procrastination. But what is a qualified refusal ? It means that the acceptor has not made up his mind whether he is able or willing to pay. If, however, the contract is to pay at presentment, the doubt is unfounded, Allow him every moment of the day, and presentment would be inoperative, and notice of dishonour, like process on an undue bond, would be bad. But in the present case it was good in any event; for no case shows that an acceptor or mater is at liberty to qualify his refusal with a promise to pay the next day, or at any time afterwards. The notary, having presented the note for payment on the last day of grace, being Saturday, and demanded payment at the dwelling of the maker, was told that he was not at home, but that he would be at home on Monday and pay that note; which was a fiat refusal to pay within any limits of the time assigned to the contract by the most extended interpretation of it; and according to all the cases, the presentment and notice were good.

Judgment affirmed.


author: Bell, J.

text:
    Anshutz v. Fitzsimmons.
    The property of a bankrupt is not divested until a decree of bankruptcy. And if, before such decree, he has applied partnership assets to the payment of his private debts, a ratification by his solvent partners after the decree, will validate the transaction. v
    In error from the District Court of Allegheny.
    Sherriff being a member of a firm, transferred a note belonging to the firm to his separate creditor. He ivas then discharged as a bankrupt, and his partners assented to the transaction.
    The action was by the surviving partners and the bankrupt assignee against the creditor for money had and received.
    Hepburn, P. J., instructed the jury, that if the solvent partners did not give their assent until after the petition in bankruptcy was filed by Sherriff, it was too late; for then the joint creditors were entitled to the partnership assets.

      Buchanan, for plaintiff in error.

      Magraw, contrd.

      Sept. 18.
   Bell, J.

It is settled law, that a partner cannot pay his private debts by an application of the partnership property, without the assent of his companions. But he may do so with their consent; and a subsequent ratification of the act is equivalent to a precedent authority: Noble v. McClintock, 2 W. & S. 152; Purdy v. Powers, 6 Barr, 492. This is correctly conceded by the court below; but conceiving that the right of property of Sherriff’s assignee attached, by relation, at the time of the presentation of the petition to the bankrupt court, the jury were instructed that the assent of the solvent partners to the transfer of the note in question, given after that period, was not binding on them for want of mutuality. Of such an assent there was certainly some evidence; and the sole question in the cause, as it is presented here, is, whether the instruction in relation to it was correct ? If Sherriff’s interest in the property of the firm was not divested, by operation of law, until a time subsequent to the alleged consent, then, it must be admitted, he was competent to contract in relation to the note; and, consequently, whatever was agreed on by the partners, bound not only them but also the assignee in bankruptcy, when he was afterwards appointed.

The solution of the question depends upon the meaning of the third section of the late bankrupt law. It provided “ that all the property and rights of property, of every name and nature, and whether real, personal or mixed, of every bankrupt, except as is hereinafter provided, who shall, by a decree of the proper court, be declared to be a bankrupt within this act, shall, by mere operation of law, ipso facto, from the time of such decree, be deemed to be divested out of such bankrupt, without any other act, assignment or conveyance whatsoever; and the same shall be vested by force of the same decree, in such assignee, as, from time to time, shall be appointed by the proper court for this purpose. And the assignee, so appointed, shall be vested with all the rights, titles, powers, and authorities to sell, manage, and dispose of the same, and to sue for and defend the same, subject to the orders and directions of such court, as fully and to all intents and purposes, as the same were vested in or might he exercised by such bankrupt, before or at the time of his banhruptcy, declared as aforesaid.” This language is so clear, precise, and definite, as scarcely to afford room for construction. It has nevertheless been reviewed by this court, in Miller v. Black, 1 Barr, 420; where it was held, that under this law, notwithstanding his petition, the proposed bankrupt remained invested with all his rights of property, as he held them before; and that these did not vest in his assignee until he was declared a bankrupt by the proper decree, and then only from that time. The doctrine favoured by Judge Story, that the decree, by relation, covered the property which the bankrupt had at the time of his petition filed, and in the interim, was denied. “It is clear,” says Mr. Justice Kennedy, when delivering the opinion of the court, “ that no claim or right of property to the debt owing to the bankrupt, which was attached, vested in the plaintiff, the assignee, before the decree of the court was had, declaring the defendant named in the execution a bankrupt.” And again he says, speaking of the supposed interest of the assignee by relation, “ the words of the act put an end to all question, in my,mind, on this point, and show, most clearly and unequivocally, that the decree has not, and could not have been intended to have such a relation. The words of the act show, most conclusively, that they are only susceptible of one construction; which is, that the vesting and divesting of the property must necessarily be confined to the date of the decree.” In accordance with these principles, it was determined that an attachment which was issued against the bankrupt, after the presentation of his petition, gave to the creditor a right to the debt attached, in preference to the assignee who claimed it by relation. This determination is in harmony with the decisions of other highly respectable courts, on the same point, and must be taken as settling the law in Pennsylvania. It is decisive of the question under consideration; for, from it, it results that Mr. Black, the assignee, took only the estate and property that remained in the bankrupt at the time of the decree pronounced; and, consequently, the opinion of the District Court, founded on a contrary view, was incorrect. As the case then stood, the instruction should have been, that if the jury believed the solvent partners assented to the appropriation of the note made by Sherriff, though after the latter had filed his petition, praying the benefit of the bankrupt law, the defendant below was entitled to a verdict.

Judgment reversed, and a venire de novo awarded.


author: Burnside, J.

text:
    McKelvy v. Wilson.
    A promise by a stranger to pay a debt, in consideration of a discontinuance of an ejectment and writ of estrepement by a vendor of mines to enforce payment of tlie purchase-money, is founded on a sufficient consideration: and if the proceedings are suspended in fact for a time, and discontinued before action brought on the promise, the action will lie.
    And where such promise is made in consideration that the promisor shall succeed to the right of the lessee, a subsequent agreement by the vendor with a stranger • for the use of the mines is immaterial, for he cannot affect the rights acquired by the promisor.
    An assignment of errors that the judgment is entered on all the counts, some of which are bad, is insufficient; the defective counts must be pointed out.
    Isr error from the District Court of Allegheny.
    Assumpsit. Wilson, the plaintiff, had sold certain mines to Nixon, reserving the right to put an end to the agreement on his failing to make the stipulated payments. The payments being in arrear, she brought ejectment, and issued a writ of estrepement of waste. McKelvy then called on her, and promised to take Nixon’s place, and pay the arrears, if she would withdraw her suits. McKelvy then worked the mines, and nothing was done in the ejectment for six months, when it, and the writ of estrepement were discontinued. There was some evidence of a subsequent arrangement having been made between Wilson and one Lewis, who entered and mined the coal.
    Hepburn, P. J., instructed the jury that the permitting McKelvy to continue working the mines, and the subsequent discontinuance of the suit and of the writ of estrepement, was a substantial compliance by the plaintiff of that part of her agreement. And that the agreement with Lewis was not a rescisión of the contract, for she would not thus destroy MeKelvy’s rights, but would remain liable for any injury which ensued to him.

      S. W. Williams, for plaintiff in error.

      Woods, contrá.

      Sept. 25.
   Burnside, J.

The law is, that it is a good consideration to support an action of assumpsit, where the forbearance is a benefit to the defendant, or a loss to the plaintiff: Hamaker v. Eberley, 2 Binn. 509. Mrs. Wilson had sold her coal-bed, containing four acres and one-fourth, by articles of agreement of the 1st of April, 1845, to Robert Nixon, who covenanted to pay her $300, in small, but monthly and half-monthly payments of $50 each. Nixon being in possession, and digging coal, made default in his payments, when Mrs. Wilson instituted her ejectment to enforce payment, and issued a writ of estrepement to stay the coal-digging. Then MeKelvy, the plaintiff in error, applied to her to stay her proceedings, and withdraw her suit against Nixon, and he promised and engaged to pay her what was then due. The amount was ascertained, and MeKelvy paid $50 on account, and promised to give his note for the residue; which promise he afterwards refused to perform, or to make further payments. It does not appear that anything was done on the estrepement, and the ejectment was discontinued before this action was brought. We see no error in the answers of the court to the plaintiff’s three first points; on these points the cause was fairly put to the jury.

The fourth assignment of error is too general for this court to notice, after a trial on the merits. It does not point out the defective count, nor does it appear to have been noticed on the trial. The assignment is, “ that the judgment of the court is erroneous; general damages having been given by the jury upon the whole declaration, containing several counts, some of which are wholly defective.” It is not said what count is defective, or why it is so. Such an assignment is nothing more than the general errors; which are never noticed in a court of error’.

Judgment affirmed.


text:
    Torrence v. Commonwealth.
    Judgment of restitution cannot be awarded on an indictment for forcible entry and detainer, unless the estate of the ejected party be laid in the indictment. Certainty requisite in the description of the premises.
    In error from the Quarter Sessions of Allegheny.
    Indictment for a forcible entry and detainer of “a certain tavern-stand, with the appurtenance, including about five acres of land adjacent thereto, situate at the Mount Pleasant and Union cross-roads, in E. township, A. county, then and there being in the peaceable possession of one Hannah McCoy, since intermarried with William Kimberly.”
    Judgment of restitution and for payment of costs was awarded.
    McClure, for plaintiff in error.
    The description implies five acres on each, side of the roads. As much certainty is required as in ejectment, and even more — or how is the sentence of restitution to he enforced ? 6 S. & R. 252; 5 Binn. 279; 2 Hawk. B. 2, ch. 25, § 6.

      T. Hamilton, contra.
    Rob. Dig. 80; Sid. 156; 1 Dall. 68 ; 11 Johns. Rep. 544; 3 Burr, 1751; 1 S. & R. 124; 3 Yeat. 49 ; 4 Dall. 312.

      Oct. 2.
   Burnside, J.

The act of 1700, 1 Sm. L. 1, against forcible entry, prescribes no judgment or penalty of restitution, and is analogous to the British statute the 5th of Rich. 2, ch. 8, which has not been considered as extending to Pennsylvania, being supplied by the act first cited. But the remedy for forcible entry and detainer is ample by the 5 Rich. 2, ch. 8; the 8 Plenry 6, ch. 9; the 31 Eliz. ch. 11; and the 21 Jac. 1, ch. 15. All these statutes are reported by the judges to be in force in this state, and at all times have been used and adopted in practice: 1 Sm. L. 2; Rob. Dig. 283. Restitution is given to tenants of the freehold as well as tenants for years by one or other of these statutes. It is settled that it is necessary to set out in the indictment the nature of the estate to warrant the court to award restitution. This is ruled in Burd v. The Commonwealth, 6 S. & R. 252, where it was held to bo error to award restitution where the indictment laid the forcible entry and detainer upon a naked possession, without stating what interest the defendant, had in the premises. There is no estate or interest in the premises laid or averred in this indictment to be in Hannah Kimberly; nothing but a naked possession. A conviction on this indictment gave no warrant to the court to award restitution: 1 Hawk. 507, 508, §45; 1 Sm. L. 2; Rob. Dig. 288.

It is objected that the premises are not sufficiently described; but I think there is certainty to a reasonable intent, and that is all that is required. The material defect in this indictment is, that the prosecutors were only alleged to have no other estate or interest in the premises on which the force was committed, than a peaceable possession — no averment of how they were seised. On this indictment it was error to award restitution. By the first section of the act of the 16th June, 1836, Dunl. 741, this court has power to modify the judgment of the Quarter Sessions — to reverse it in part, and affirm it in part. This has been done in many cases: Daniels v. The Commonwealth, 7 Barr, 371; there the sentence was modified.

"We therefore reverse the decree of restitution, and affirm the sentence that the defendants pay the costs.

Judgment accordingly.


text:
    Simpson v. Stackhouse.
    The onus of showing that an alteration in a material part of a negotiable instrument was lawfully made, is on the holder. And where the place of payment is in a different handwriting from the body of the instrument, there is a presumption of alteration.
    In error from the District Court of Allegheny.
    This was an action against an endorser of a note drawn by Sankey, who resided in Mercer county. It was proved that the body of the instrument was in the handwriting of defendant; but that the words “ payable at the Bank of Pittsburgh,” written at the end of the instrument, were in a different handwriting.
    The defendant’s point was, that it was incumbent on the plaintiff to show these were written at the time of the endorsement, or with defendant’s consent.
    The court said the jury must decide this as a matter of fact.

      Shaler and Stanton, for plaintiff in error.

      Metcalf, contri.

      Sept. 26.

   Gibson, C. J.

As a general rule the law presumes, in favour of innocence, that an alteration in an instrument is a legitimate part of it, till the contrary appears; but it is not extended to negotiable securities. The principle of the English cases is, that an alteration so far apparent on the face of a bill or note as to raise a suspicion of its purity, makes it incumbent on the plaintiff to prove that it is still available, and that it is not incumbent on the defendant to disprove it. Johnson v. The Duke of Marlborough, 2 Stark. Rep. 313; Henman v. Dickinson, 5 Bing. 183; Bishop v. Chambre, 3 C. & P. 53; and Leykariff v. Ashford, 12 Moore, 281, establish that the general presumption of innocence in such a case is overborne by the nature of the instrument. It was doubted by the learned commentators on Mr. Phillips’s Treatise on the Law of Evidence, vol. 2, p. 229, whether the principle of the English decisions would be adopted by the American cotirts. The later decisions in the United States are discrepant, but their preponderance is in favour of restraining the general rule to deeds and writings not negotiable. In McMicken v. Beauchamp, 2 Miller’s Louis. Hep. 290, it was ruled that interlineations in a material part of an acceptance are presumed to have been forged, till the contrary is shown; in Hills v. Barnes, 11 N. H. Rep. 895, that an unexplained alteration of a promissory note, apparent on the face of it, is presumed to have been made after execution and delivery; in the Commercial and R. R. Bank v. Lum, 7 Howard’s Miss. Rep. 414, that an alteration on the face of a promissory note must be shown by the holder to have been innocently made; and in Warren v. Layton, 3 Harring. 404, that a party cannot recover on an altered note without explanatory proof. So far the American cases are consistent. But, on the other hand, it was ruled in Gooch v. Bryant, 1 Shep. 386, that an alteration of a figure iii the date of a note, proved to be such by inspection, is not evidence of itself that it was made after execution and delivery; in Crabtree v. Clark, 7 Shep. 337, that it is for the jury to determine — by inspection, I suppose — whether an unexplained alteration, apparent by inspection, was made before or after execution; and in Davis v. Carlisle, 6 Ala. Rep. 707, that if it cannot be shown by whom a note has been altered, the court cannot presume it to have been altered by the holder, but the jury may. There are two indecisive cases. In delivering the opinion of the Supreme Court of New Jersey, in Sayre v. Brookfield’s Administrators, 2 South. 737, Mr. Justice Southard, neither admitting nor denying the principle of the English decisions, thought that the insignificance of the alteration in that ease, which made a difference in the interest of only a few cents, was sufficient to show the integrity of the transaction. In the other case, Runnion v. Crane, 4 Blackf. 466, a jury of inquiry were allowed to disregard an unexplained alteration of a note, doubtless because they could not go behind the interlocutory judgment. The decision is authority for nothing. But how stands the question on principle ? The English decisions are founded in reason, and not in considerations growing out of the stamp acts. He who takes a blemished bill or note, takes it with its imperfections on its head. He becomes sponsor for them, and though he may act honestly, he acts negligently. But the law presumes against negligence as a degree of culpability; and it presumes that he had not only satisfied himself of the innocence of the transaction, but that he had provided himself with the proofs of it to meet a scrutiny ho had reason to expect. It is of no little weight, too, that the altered instrument is found in his hands, and that no person else can be called on to speak of it; for without a presumption to sustain him, the maker would in every case be defenceless. It maybe said that the holder, with such a presumption against him, would also be defenceless. But it was his fault to take such a note. As notes and bills are intended for negotiation, and as payees do not usually receive them when clogged with impediments to their circulation, there is a presumption that such an instrument starts fair and untarnished, w’hich stands till it is repelled; and a holder ought, therefore, to explain why he took it branded with marks of suspicion which would probably render it unfit for his purposes. The very fact that he-received it, is presumptive evidence that it was unaltered at the time; and to say the least, his folly or his knavery raised a suspicion which he ought to remove. The maker of a note cannot be expected to account for what may have happened to it after it left his hands; but a payee or endorsee who takes it, condemned and discredited on the face of it, ought to be prepared to show what it was when he received it. Now, it is agreed that the note before us was drawn and endoi’sed for the accommodation of the maker who negotiated it, and who consequently stands as if it had been drawn by the endorsee and endorsed by himself, as it might just as well have been, the difference being in the plan of the security and not in its effect. It was distinctly proved that the body of the note is in the handwriting of the defendant, and that the words payable at the Bank of Pittsburgh,” are not. The difference in the character of the writing is obvious; and the additional words are broken into two half lines, for to have comprised them in one would have required it to be run through the signature, and they were necessarily crowded into the left hand corner, at the bottom of the paper. That is certainly not the ordinary collocation of the lines of a commercial instrument. Mr. Chitty says in his Treatise on Bills, p. 213, that a drawee ought not to accept a bill which has the least appearance of alteration ; and it was not disputed at the trial that this note had that appearance, or that the alteration was in a material part of it, its effect being to dispense with personal notice of dishonour. The question was on the onus, and the defendant prayed instruction that the body of the note being in his handwriting, and the questionable words being in a different hand, it was incumbent on the plaintiff to show that they were in the instrument at the time of endorsement, or with the defendant’s consent: to which the court responded that the jury must decido as a matter of fact. The response was a refusal of the prayer, and a denial that there was any presumption to lead to a particular conclusion. There was no direct evidence on the subject; the deposition of Sankey, the drawer, who had given credit to the note by his name, having been properly ruled out; but on the principle of the English cases, and a majority of our own, the defendant’s prayer ought to have been granted.

Judgment reversed, and a venire facias de novo awarded.