84 Va. 873 | Va. | 1888
delivered the opinion of the court.
The plaintiff sued out of the clerk’s office of the circuit court of Pittsylvania county, on the 9th day of July, 1881, a summons against M. B. Hodnett, surviving obligor of himself and John M. Sutherlin, deceased, in a plea of debt for $241 25, with interest thereon from the 18th day of October, 1858, till paid.
To the declaration the defendant, M. B. Hodnett, demurred; and, thereupon, by consent of the parties, the case was removed from the circuit court of Pittsylvania county to the corporation court of the'town of Danville, in which latter court it was duly docketed, and continued from term to term until the death of the defendant, M. B. Hodnett; whereupon it was revived against the appellant, as administratrix of the said M. B. Hodnett, deceased, and was, again continued from term to term until April term, 1887, when the appellant withdrew the demurrer filed by M. B. Hodnett in 1881, and filed three pleas, viz : non est factum, payment, and the statute of limitations; on which pleas, issues were joined, a jury empanelled, and a trial had, resulting in a verdict for the plaintiff against the appellant for $241 25, with interest from October 18th, 1853; upon which verdict the court, overruling defendant’s motion to set aside the same, entered the judgment complained of against the appellant, as administratrix aforesaid. In the progress of
The first error assigned, is, that the court admitted the witness, George C. Cabell, to state to the jury, against the objection of the defendant, conversations alleged to have been had with G. T. Pace, deceased, the payee in the bond sued on, in relation to the said bond, not in the presence of the obligors in said bond, or either of them, or their personal representatives. We are of opinion that this assignment of error is well taken. The statements of this witness of what G. T. Pace, deceased, said to him several years previously, disclaiming any interest in the bond sued on, and that he had transferred it to Charles Lucas, then deceased, was purely hearsay evidence and wholly incompetent. The-question of the admissibility of such testimony has been frequently decided adversely to the parties offering it. (Paige v. Cagwin, 7 Hill, N. Y.; Alexander v. Mahon, 11 Johns.; Kent v. Walton, 7 Wend.; Hurd v. West, 7 Cowan; Whitacre v. Brown, 8 Wend.; Beach v. Wise, 1 Hill.) In his notes on the case of Paige v. Cagwin, as reported in 42 American decisions, at page 80, Freeman says : “ Declarations by a former owner of a chattel or chose in action, made after parting with his interest are, of course, inadmissible. Christie v. Bishop, 1 Barbour, ch. 115; Peck v. Crouse, 46 Barb., 156; Smith v. Exchange Fire Insurance Co., 40 N. Y. Sup. Ct. (8 Jones and S.), 500. And as declarations of a former owner are inadmissible against the title of a subsequent purchaser for value, so are they inadmissible to prove that title. Worrall v. Parmelee, 1 N. Y., 521.” In the case of Worrall v. Parmelee, 1 N. Y., 521, the court below admitted the delaration of a former owner to prove property in the defendant, and on this error alone was reversed, the court saying, by Jewett, C. J.: “ The decision of the justice upon the objection taken to the admissibility of the evidence of Brown’s declaration, was clearly erroneous. Such evidence is nothing more than hearsay.” The
And the court upon the trial admitted the testimony of the said witness, George C. Cabell, as to the admissions of John M. Sutherlin, the principal obligor in the bond, as evidence against the defendant administratrix of M. B. Hodnett, deceased, surety in the said bond; it being admitted that the alleged admissions of'J. M. Sutherlin were made, if at all, in the absence of M. B. Hodnett, the surety. This was error. Lewis v. Woodworth, 2 N. Y., 528; Shoemaker v. Benedict, 11 N. Y., 179. Upon the trial it was shown that the date of the bond has been changed or altered from 1852 to 1858. The face of the bond shows the alteration, and the uncontradicted testimony of the expert witness, "W. E. Boisseau, is that it had been plainly changed from 1852 to 1858. If of the original date, 1852, the statute of limitations barred the action thereon. For this alteration of the date of the bond, palpable upon its face and expressly proved withal, the plaintiff offered no explanation whatever, nor introduced one word of evidence in relation thereto. But the instructions given by the court to the jury were erroneous; and a new trial should have been awarded because of the misdirection of the jury. In the three instructions given by the court, at the request of the plaintiff, the jury were told that in the case before them, in which the defendant, upon her plea of non est factum, relied upon a palpable and undenied alteration of the instrument sued on—a change in its date—so as to bring it within the period of limitation, it was the defendant’s duty to satisfy them by evidence that the said alteration was made without her consent or that of her intestate, and was not made at the time of the execution of the bond, and that, unless this was done, it was a presumption of law, by which the jury was bound; that the alteration was contemporaneous with the execution of the bond, and was made with the defendant’s consent, and rendered her liable to judgment. The third and last instruction given by the court
Ho evidence is offered in explanation of the alteration upon the face of the bond sued on thirty-four years after it became due, without which alteration it would be barred by the statute; no proper evidence is offered of Lucas’ title to or interest in the bond; no explanation of the failure of Lucas to sue in his lifetime upon this bond, (if, in truth, he had any right or title in or to the bond) although the proof is, that he was, for years previous to bis death, pressed for money, and lived all his life in the immediate vicinity of Hodnett, the surety, and of John M. Sutherlin, the principal obligor on the bond, one of whom was rich, and the other well to do, and prompt to pay his debts; and with Hodnett’s estate after his death under administration. Both upon the facts and the law of this ease the judgment of the corporation court of Danville complained of is wholly erroneous, and the same must be reversed and annulled; and the cause will be remanded to the said corporation court for further proceedings in accordance with this opinion.
Judgment reversed.