Patterson v. Dushane

Mr. Justice Paxson delivered the opinion of the court,' March 7th, 1887. At the close of the trial below, the learned judge withdrew from the jury so much of the evidencé of both the plaintiff and defendant, as related to matters which occurred in the-life time of Sidney Connell. It is hardly necessary to say, that if he was right in withdrawing the testimony of the plaintiff; it was his plain duty to exclude that of the defendant. .No distinction can be made between them upon principle. 1 The action was trover, and the plaintiff claims to- recover the value-of $10,500 of government bonds which she alleged she deposited -with defendant for safe keeping. She 'claims! title by virtue of an oral gift from Sidney Connell, who died shortly after the alleged gift, and prior to the commencement; of this suit. The defendant sets up title- in the said Sid-s ney Connell; denies the gift to plaintiff, and alleged, and clearly proved that he accounted to the estate of Mrs. Connell for the bonds, and that the same have been distributed to her next of kin upon the settlement of her estate. This is not a suit by or against the estate, nor does the estate appear to have any interest in this controversy. I do not see, however,’ that the latter fact can properly affect the question. If the executor has turned over the bonds to the estate in the performance of his duty and in the belief that they belonged to said estate, it seems clear that when sued for the bonds personally, he would be entitled to raise any question by way of defence, that could have been raised by or for the estate, had the suit been against the executor or administration of Sidney Connell, deceased. We come then directly to the competency of the plaintiff as a witness. If she had made out her title without reference to Mrs. Connell, she would have been competent. This she did not do, nor do I see how it would have been possible under the evidence to have done so. Both parties claimed title through Sidney Connell, and she was the assignor of the thing in controversy, within the meaning of the Act of 1869. In Diehl v. Emig, 65 Penn, 320, it was held that in an ejectment by a daughter grounded on a lost deed of gift from her deceased father, she and her husband were not 'competent witnesses as to what occurred prior to her father’s death. There is- nothing in Karns v. Tanner, and the line of cases followings that in any degree impairs the rule in Diehl v. Emig, and á further discussion of this branch of the case would be unprofit [338] able. We are of’ opinion that the learned judge was right in excluding the testimony referred to. This took out of the case pretty much all there was in it. The court below evidently thought there was nothing left, and gave a binding instruction to find for the defendant. The plaintiff complains of this and says there was evidence outside of her own testimony to entitle the case to go to the jury. ' I have examined, the testimony with care, and while it is weak, there is more than a scintilla. Clark Brundridg swears that he was present at an interview between the plaintiff, the defendant, and Mrs Connell; that the plaintiff handed the defendant a small box containing the bonds in controversy; that Mrs.Connell-told him to count them to Minerva (the plaintiff); that they belonged to her; . . . that the plaintiff told him to take care of them; that-they were hers; that if she lost them she would be compelled to get married, and Temperance King said she saw the bonds in the possession of the plaintiff; that the latter kept them in her room at Mrs. Connell’s house. W. PI. Dinsmore said that Mrs. Connell told him how that she had given some bonds to the plaintiff. All this, if believed, might lead to the conclusion that Mrs. Connell had given the bonds to the plaintiff, and if accompanied by delivery would make a good title. We are of opinion that it should have been submitted to the jury. Judgment reversed and a venire facias de novo awarded.