63 Pa. 30 | Pa. | 1870
The opinion of the court was delivered, January 3d 1870, by
This was an action of trespass quare clausum fregit. The defendants pleaded not guilty, and a special plea of justification of the trespass on the ground of a common and public highway over the locus in quo.
The 1st assignment of error is to the admission in evidence on the part of the defendants of a deed which was offered, as stated, for the purpose of showing that the defendants reside adjoining and own the tract of land contiguous to the plaintiff. Under the issue upon the special plea it is not easy to see the relevancy of the purpose of it as set forth in the offer. But we are not furnished with the evidence, and it is impossible to say that it might not have been relevant under the issue joined upon the plea of not guilty. The onus is upon the plaintiff in error to make out his assignment affirmatively, and he must furnish in the record and on his paper-book all that is necessary for that purpose. Besides which,
The same reasons dispose of the 2d assignment of error. We have not the evidence to show who Thomas Armstrong was, by whom the draft which was received in evidence was made, nor the draft itself, nor a copy of it.
The 3d error assigned is, that the court refused to allow the plaintiff’s counsel to ásk a witness on the stand if he did not state in his cross-examination a certain fact. It nowhere appears in our paper-books whether this witness was called by the plaintiff or the defendants; and such being the case, how can we decide whether the question was proper or improper ? Besides, although it may sometimes be important to ask a witness to repeat a former part of his testimony, there is no legal'right to insist upon this. If there were it would be without limit. It is evidently a matter entirely within the sound discretion of the court below, whose duty it is to take care that the public time is not needlessly consumed in mere repetitions: and they have an undoubted right to interpose in such a matter, though no objection be raised by the opposite party. There is the less reason for any exception in this instance, as the learned judge allowed the witness to be asked whether the fact about which he was asked, whether or not he had stated it before, was not true. It is not easy to see what injury was done to the plaintiff in this.
The 4th, 5th and 6th assignments are to the affirmance by the court below of the defendants’ 1st, 2d and 6th points. These points in different forms asked the court to instruct the jury that if they believed from the evidence that the defendants had a right Of way over the plaintiff’s land they were entitled to the verdict. They point unmistakeably to an uninterrupted user by the defendants or the occupiers of their farm or those under whom they claim title, and that whether the land were closed or unenclosed, which could scarcely be predicated of a public highway or of a user in common with the public. The use by those under whom they claimed title would have no pertinency to such a question. It is clear that a justification under a private right of way as well as a public highway must be specially pleaded, and cannot be given in evidence under the general issue: 2 Wms. Saund. Rep. 402, n. 1; Hawkins v. Wallis, 2 Wils. 173. The affirmance of these points had an evident tendency to mislead the jury from the true question in issue. They may have been true as abstract propositions, but they had no relevancy to the issue on trial. It is urged however that the question was rightly stated in the general charge, and Oakway Railway Co. v. Fielding, 12 Wright 321, is relied on as establishing that where the law is correctly stated in
Judgment reversed, and venire facias de novo awarded.
