61 N.J.L. 142 | N.J. | 1897
The opinion of the court was delivered by
Liability of the sheriff in this case must rest on the “Act concerning landlords aud tenants.” Gen. Stat., p.
Of course, if there is such a presumption as is assumed, it is one of fact for the jury, and both the presumption and the-evidence to repel it stand, as does all evidence, subject to credibility and other incidents. We do not, decide that it was’ error to refuse the request as framed; but, as there must be a. new trial'in this case, we think it wise to call attention to, tire:
The third ground of objection is well taken. The letter of December 22d, 1894, could have had no relevancy in the case except to work an implied admission of notice, in May, of the claim for rent. It was not legal evidence. Oral declarations made to one sought to be charged thereby may in some cases be considered as admitted by silence, but the rule is otherwise as to letters. The recipient is not called on to reply or be considered as admitting what is written. The following decisions are in point, and we have been referred to no case holding otherwise: Fairlie v. Denton, 3 Car. & P. 103; Richards v. Frankum, 9 Id. 221; Draper v. Crofts, 15 Mees. & W. 166 ; Gaskill v. Skene, 14 Q. B. 664; Canadian Bank v. Coumbe, 47 Mich. 358, 365; Bank of British North America v. Delafield, 126 N Y. 410, and earlier New York cases therein cited; Hill v. Pratt, 29 Vt. 119. An unanswered letter, not received in the course of a correspondence, is not evidence at all against the recipient, except to prove notice or •demand. It was argued in this case that the letter of December 22d, 1894, might stand on this footing, it being claimed that when it was offered, the date of paying over the proceeds of execution had not been proved. This we think immaterial, and we do not so read the state of the case. It is expressly stated, as one ground of objection to the letter, that it was written after the money had been paid.
The judgment of the Common Pleas is reversed, that a venire de novo may be awarded. Costs will abide the event.