105 Pa. 294 | Pa. | 1884
delivered the opinion of the court, October 6,1884.
In making out their case it was incumbent On the plaintiffs below to prove that defendant was duly notified to defend the suit brought by Lyman, Barnes & Co. against Bennett, the beneficial plaintiff in this case, to No. 157 of August, 1868, of the Court of Common Pleas of Erie county. For this purpose théy called Mr. Spencer, and handing him a notice entitled in that case, he identified it as having been signed by himself in the name of “Spencer & Marvin, attorneys for Bennett.” They also handed him the judge’s notes of a former trial, taken in January, 1871, showing that he had then testified in re
This is a brief outline of the facts upon which the firsassignment of error is based, and we have no hesitation in saying that the kind of testimony thus elicited, and afterwards submitted to the jury, is wholly incompetent for any purpose. It cannot be pretended that it comes within the letter or the spirit of the rule recognized in Emig v. Diehl, 26 P. F. Smith, 359; Walbridge v. Knipper, 15 Norris, 48; or Rothrock v. Gallaher, 10 Norris, 108; and it is certainly irreconcilable with the principle enunciated in Velott v. Lewis, 13 W. N. C., 33, in which it is said: “ Where there is no proof that a witness, presumably of ordinary health and memorjr, has, by reason of old age or otherwise, lost his memory in the interval between the time of an arbitration and the trial in court, it is error to permit such witness to refresh his memory by properly proven notes of his former testimony before the arbitrators. He but failed to recollect what he had previously sworn to ; but, if this were enough, we might as well abandon original testimony altogether, and supply it with previous notes and depositions.”
In charging the jury, as complained of in the second specification, the learned judge, after calling their attention to the materiality of the notice, referred to the testimony relied on by the plaintiffs to prove service thereof, as follows: “ The witness, on this point, on the part of the plaintiffs, is Mr. S.
It follows, from what has been said, that defendants’ sixth point should have been affirmed, and for want of competent testimony to justifj’- the submission of the question of fact involved in plaintiff’s third point, it should have been refused. The first to fourth assignments of error, inclusive, are sustained. The fifth and sixth specifications are not sustained.
Judgment reversed, and a venire facias de novo awarded.