McGinniss v. Sawyer

The opinion of the court was delivered, January 3d 1870, by Sharswood, J. — The first assignment of error is, that the court below erred in receiving in evidence, the copy of a survey alleged to have been made by David Steele. We may assume that such a survey had been made as early as 1807 or 1809 — * that the original of that survey was traced to the possession of Remington, who had left the state and not been heard from for several years, so that sufficient ground was laid for the introduction of secondary evidence: Ralph v. Brown, 3 W. & S. 395; Flinn v. McGonigle, 9 W. & S. 75. Its absence might then be supplied either by parol evidence of its contents or by a copy. No offer or attempt was made to give parol evidence of its contents. No witness, who had seen the original, was asked to testify from recollection what the course of the line in controversy was as marked upon it. The person, by whom the copy offered is said to have been made, was deceased. No one testified that he had ever compared the copy with the original. McGowin, who said that the copy was in the handwriting of his deceased, brother, and that it was taken from a draft supposed to be the original in the hands of Remington, was unable to say that he had ever seen that supposed original. The testimony of Major Patterson was: “ I would take this to be a .copy of the original or what I thought to be the original in the handwriting of Steele;” and of Neastings: “ I saw the original plan ; I would take this to be a copy [267] of the original plan.” To admit in evidence a copy upon testimony of this vague and loose character would be fraught with great danger to the rights of parties. The draft produced might profess to be and have all the appearance of a true copy, and yet as to the very matter upon which the whole controversy hinged, the course and distance of a single line, it may have been false or incorrect. The general rule of the law upon this subject requires that a copy in order to be admitted as secondary evidence, should be proved by some one who has compared it with the original: 1 Starkie on Ev. 270, 9th Am. ed.; Kerns v. Swope, 2 Watts 75. We think therefore that there was error in the admission of this evidence. There is nothing in that part of the charge which forms the subject of the 2d assignment of which the plaintiff in error has any just cause to complain. If the learned judge did not expressly state to the jury that it was part of his ease that the fence had been moved from the sunken ground, it was necessarily implied. If the attention of the court had been called to the omission at the time, no doubt it would have been explained and supplied. We never reverse on exceptions of this kind, unless it is clear that the jury may have been misled. The 3d specification relates to that part of the charge in regard to the effect of the entry, of which there was some evidence, to stop the running of the Statute of Limitations. From the position of this clause at the end of the charge, it may be conjectured that it was in answer to some point orally put by the counsel of the defendants below. It may be that there was some evidence of an interruption of plaintiff’s actual possession, a break in its continuity, to a very small and unimportant extent — twelve or fourteen inches. It is evident, however, that the point to which the attention of the court was called was not this, but the effect of the entry upon the plaintiff’s title by the Statute of Limitations to the entire premises in dispute. The testimony relied on to sustain this assignment is that of William McGinniss, who said: “ at one time Edward McGinniss moved the fence over on one part of it, and next morning we tore it down and put it back in the old post holes ; at that time Edward claimed about 60 odd feet * * * don’t know how long it was before Edward brought the first suit against me.” Now, considering this as sufficient evidence of a formal entry, and that Edward McGinniss had such a right or title as would make it available to him to stop the running of the Statute, Hole v. Rittenhouse, 7 Harris 305, it is necessary that he who sets up such an entry should show with at least reasonable certainty when it took place. The Act of Assembly of April 13th 1859, Pamph. L. 603, provides “ that no entry upon lands shall arrest the running of the Statute of Limitations, unless an action of ejectment be commenced therefor within one year there [268] after.” Without evidence, then, ascertaining with some degree of precision, if not the exact day, at least that the entry was within the space of a year before Edward McGrinniss commenced the first action of ejectment, the entry went for nothing. There was no evidence whatever to authorize the jury to infer this; and the learned judge below was therefore right in this part of his charge. The three remaining assignments of error are to the admission of witnesses whose competency was objected to on the score of interest. We think that there was no error in the admission of these witnesses. It is unnecessary to discuss these assignments at length, because, as the cause goes back to be again tried, all objection to their competency is now removed in consequence of the change of the law of evidence introduced by the Act of Assembly passed April 15th 1869, Pamph. L. 80. Judgment reversed, and venire facias de novo awarded.