Dayton, J:
This was an action of trespass tried at the March terra, of the Gloucester Circuit, 1838, and a verdict had for the plaintiffs, for-$700.
The declaration was in common form, and the pleas, not guilty and liberum tenementum.
The following reasons among others are relied upon fora new trial.
That there was a mis-trial,inasmuch as it appeared that one of the original defendants, Felix Fisler, died after issue joined, and before the term next preceding the trial, and yet no suggestion of his death was entered upon the minutes, until the coming in of the postea.
2. That the court admitted illegal evidence.
3. That the court erred in its charge to the jury.
4. That the verdict is against evidence and law.
It is my intention to consider these matters in their order.
As the error first assigned, involves merely a question of practice of a technical character, it may be disposed of briefly.
The leaning of courts at the present day is against unnecessary technicality : -they never permit it to interfere with the merits,unless bound by precedent, or most weighty reasons. That the cause of action in the present case, survived against the defendants, cannot be denied; and if so, our statute, Rev. L. 164, section 2,prevents an abatement of the suit, even if such had been [378]*378the effect at common law, (not however, meaning to intimate that it was so. See Vin. A. title, abatement 54; sec. 21, 26.) Tiio only question, therefore, really is as to the time of entering a suggestion of the death. Must it necessarily be done before the trial where opportunity is afforded ? Or may it, with the permission of the court, be done afterwards ; as upon the coming in of the postea, as was done in this case ? I have no doubt but the latter may be done, and the following authorities fully sustain the position. 2 Arch. P. 299; Tidd’s P. 1028; Bul. N. P. 312;1 Burr. 363; 1 Salk. 8; Ld. Ray. 1415; T. Ray. 463;5 T.R. 577; Barnes, 469; 1 Green, 294.
I hold, therefore, that that the entry made nunc pro tunc, at the term to which the postea was returned, with the permission of the court, is sufficient; and that the court consequently committed no error on this branch of the case.
2. The next error assigned is, that the court admitted illegal evidence. I shall notice only so much of the testimony excepted to, as I think tends to sustain the error assigned..
Eoth parties claim under Abraham Leonard, who was produced by the plaintiff, and examined as a witness. He testified that he had owned the property in dispute himself, and lived on it almost sixty years. That about 25 years before the trial, Edmund Brewer, the ancestor of the plaintiff, came upon the land and told him he had bought it at Sheriff’s sale. That from that time he had considered Brewer as the owner — that he himself showed him the lines, and Brewer’s hands thenceforth cut and hauled on the premises as occasion required, without complaint on his part. But he said further, that he, Leonard, continued to live on the property as he had done before — that he occupied it as his o%vn — that it was assessed to him, and he paid all the taxes' — that he paid no rent to Brewer and took no lease under him — that he did not consider himself as living under anybody. If this state of facts, proved by the plaintiff’s main witness, were correct, it is evident that it would have been a serious question for the jury whether his possession wrns not adverse to the Brewer title. This might have destroyed the plaintiff’s whole case, for the defendants had bought up the Leonard title, whatever it might be. To avoid this difficulty, the plaintiff called upon Samuel Leonard, the son of Abraham, who swore [379]*379positively that he had heard his father say that he was permitted by Brewer to live on the property, and that he “paid tax for the land by way of rent, as he always understood” from him. Tills evidence, though objected to, was admitted by the court. I think, (here can hardly be a doubt as to its illegality. It was not only very important, but entirely competent for the plaintiff to prove the fact that Abraham Leonard during his long continued occupation of the land, did pay taxes by way of rent, but they could not and did not prove the fact in this way. They merely impeached the truth or memory of their own witness, who denied it. The father said under oath, that it was not so. The son did not pretend (a say it was so; he merely said he had heard his father say it was so. Now if this were intended as evidence of the fact of payment of rent (in which view alone it was competent) it was not only hearsay evidence, but hearsay evidence of the worst character. It was to prove a fact by showing what another man had said when not under oath, though in opposition to what he did say on (he trial, wiien under oath- Had Abraham Leonard been the defendants’ witness, and as such, testified that he paid no rent, &c., it would have changed the whole question. The plaintiff then could have shown that he had said otherwise, not on?y to impeach him, but to show how he did in point of fact hold. In that case, Townsend v. Johnson, et al. 2 Penn. 706, would apply. But the present presents the bald question, whether a pai fy may make out his case by the declarations of his own witness, who is in court — under no disability and sworn in the cause. Argument cannot make plainer the illegality of this evidence.
The next item of evidence objected to, and admitted, was the introduction of the minutes of the Circuit Court to show there bad formerly been a trial between the same parties. This was to legalize the evidence of John B. Harrison, Esq. who after-wards proved that one Sheriff Glover, since dead, had been examined as a witness on that trial, and testified as to his making sale of the lands in dispute, to Edmund Brewer on execution of his belief that he had made him a deed (which the plaintiff alledged was lost). The introduction of these minutes as well as the evidence of Mi*. Harrison, was objected to, and the objection over-ruled. In this, I think there was error. In the first placo [380]*380the entry tliere did not prove the alledged fact, that tiiere liad been a trial between the same parties. It was merely entitled William Brewer and others v. Felix Fisler and others, who these others were, did not appear. But the minutes of a court are never evidence for the above purpose. Either an examined 'copy of the'record properly authenticated,or the postea, at least, must be produced. Arch. Pl. and Ev. 362; 2 P. Wms. 564; 5 Esp. 56;Bul. N. P. 242; Ros. Ev. 156 and cases cited- The same point moreover has been ruled in the court of appeals of this State.
Still if this were the only point of objection, I should hesitate about granting a new trial. The court i:i its charge fold ¡lie jury that in its opinion, if the plaintiffs’ right to recover depended upon their belief of such a deed, they ought not to recover. That the evidence of such a deed, was quite too slender, and if they could find for the plaintiff on no other grounds, they might consider all that evidence about a deed as over-ruled. This direction would cover the evidence of Mrs.
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Dayton, J:
This was an action of trespass tried at the March terra, of the Gloucester Circuit, 1838, and a verdict had for the plaintiffs, for-$700.
The declaration was in common form, and the pleas, not guilty and liberum tenementum.
The following reasons among others are relied upon fora new trial.
That there was a mis-trial,inasmuch as it appeared that one of the original defendants, Felix Fisler, died after issue joined, and before the term next preceding the trial, and yet no suggestion of his death was entered upon the minutes, until the coming in of the postea.
2. That the court admitted illegal evidence.
3. That the court erred in its charge to the jury.
4. That the verdict is against evidence and law.
It is my intention to consider these matters in their order.
As the error first assigned, involves merely a question of practice of a technical character, it may be disposed of briefly.
The leaning of courts at the present day is against unnecessary technicality : -they never permit it to interfere with the merits,unless bound by precedent, or most weighty reasons. That the cause of action in the present case, survived against the defendants, cannot be denied; and if so, our statute, Rev. L. 164, section 2,prevents an abatement of the suit, even if such had been [378]*378the effect at common law, (not however, meaning to intimate that it was so. See Vin. A. title, abatement 54; sec. 21, 26.) Tiio only question, therefore, really is as to the time of entering a suggestion of the death. Must it necessarily be done before the trial where opportunity is afforded ? Or may it, with the permission of the court, be done afterwards ; as upon the coming in of the postea, as was done in this case ? I have no doubt but the latter may be done, and the following authorities fully sustain the position. 2 Arch. P. 299; Tidd’s P. 1028; Bul. N. P. 312;1 Burr. 363; 1 Salk. 8; Ld. Ray. 1415; T. Ray. 463;5 T.R. 577; Barnes, 469; 1 Green, 294.
I hold, therefore, that that the entry made nunc pro tunc, at the term to which the postea was returned, with the permission of the court, is sufficient; and that the court consequently committed no error on this branch of the case.
2. The next error assigned is, that the court admitted illegal evidence. I shall notice only so much of the testimony excepted to, as I think tends to sustain the error assigned..
Eoth parties claim under Abraham Leonard, who was produced by the plaintiff, and examined as a witness. He testified that he had owned the property in dispute himself, and lived on it almost sixty years. That about 25 years before the trial, Edmund Brewer, the ancestor of the plaintiff, came upon the land and told him he had bought it at Sheriff’s sale. That from that time he had considered Brewer as the owner — that he himself showed him the lines, and Brewer’s hands thenceforth cut and hauled on the premises as occasion required, without complaint on his part. But he said further, that he, Leonard, continued to live on the property as he had done before — that he occupied it as his o%vn — that it was assessed to him, and he paid all the taxes' — that he paid no rent to Brewer and took no lease under him — that he did not consider himself as living under anybody. If this state of facts, proved by the plaintiff’s main witness, were correct, it is evident that it would have been a serious question for the jury whether his possession wrns not adverse to the Brewer title. This might have destroyed the plaintiff’s whole case, for the defendants had bought up the Leonard title, whatever it might be. To avoid this difficulty, the plaintiff called upon Samuel Leonard, the son of Abraham, who swore [379]*379positively that he had heard his father say that he was permitted by Brewer to live on the property, and that he “paid tax for the land by way of rent, as he always understood” from him. Tills evidence, though objected to, was admitted by the court. I think, (here can hardly be a doubt as to its illegality. It was not only very important, but entirely competent for the plaintiff to prove the fact that Abraham Leonard during his long continued occupation of the land, did pay taxes by way of rent, but they could not and did not prove the fact in this way. They merely impeached the truth or memory of their own witness, who denied it. The father said under oath, that it was not so. The son did not pretend (a say it was so; he merely said he had heard his father say it was so. Now if this were intended as evidence of the fact of payment of rent (in which view alone it was competent) it was not only hearsay evidence, but hearsay evidence of the worst character. It was to prove a fact by showing what another man had said when not under oath, though in opposition to what he did say on (he trial, wiien under oath- Had Abraham Leonard been the defendants’ witness, and as such, testified that he paid no rent, &c., it would have changed the whole question. The plaintiff then could have shown that he had said otherwise, not on?y to impeach him, but to show how he did in point of fact hold. In that case, Townsend v. Johnson, et al. 2 Penn. 706, would apply. But the present presents the bald question, whether a pai fy may make out his case by the declarations of his own witness, who is in court — under no disability and sworn in the cause. Argument cannot make plainer the illegality of this evidence.
The next item of evidence objected to, and admitted, was the introduction of the minutes of the Circuit Court to show there bad formerly been a trial between the same parties. This was to legalize the evidence of John B. Harrison, Esq. who after-wards proved that one Sheriff Glover, since dead, had been examined as a witness on that trial, and testified as to his making sale of the lands in dispute, to Edmund Brewer on execution of his belief that he had made him a deed (which the plaintiff alledged was lost). The introduction of these minutes as well as the evidence of Mi*. Harrison, was objected to, and the objection over-ruled. In this, I think there was error. In the first placo [380]*380the entry tliere did not prove the alledged fact, that tiiere liad been a trial between the same parties. It was merely entitled William Brewer and others v. Felix Fisler and others, who these others were, did not appear. But the minutes of a court are never evidence for the above purpose. Either an examined 'copy of the'record properly authenticated,or the postea, at least, must be produced. Arch. Pl. and Ev. 362; 2 P. Wms. 564; 5 Esp. 56;Bul. N. P. 242; Ros. Ev. 156 and cases cited- The same point moreover has been ruled in the court of appeals of this State.
Still if this were the only point of objection, I should hesitate about granting a new trial. The court i:i its charge fold ¡lie jury that in its opinion, if the plaintiffs’ right to recover depended upon their belief of such a deed, they ought not to recover. That the evidence of such a deed, was quite too slender, and if they could find for the plaintiff on no other grounds, they might consider all that evidence about a deed as over-ruled. This direction would cover the evidence of Mrs. Brewer, the widow of Edmund Brewer,which was objected to, as well as aii others applying to this brand] of the case.
The counsel, on the argument, contended with some force,that the court had no right to refuse to over-rule evidence when called upon, and then put it to the jury with an adversary opinion, merely touching its weight. In this, the counsel was doubtless right. The evidence was either legal or illegal. If legal, its weight was for the consideration of the jury. If illegal,it ought not to have been put to the jury, or made the subject of comment by the court. Still, this application for a new trial, is to our discretion, and wc cannot help seeing that if the jury pursued (he instructions of tiie court, no harm was done. They were told if they could not find for the plaintiffs on other grounds than a belief of a deed, they might consider all evidence in relation thereto, as over-ruled. The presumption therefore is, tlias they did find on oilier grounds. It is' true, some of the cases go so far as to say that the bare admission of illegal evidence, though it. be afterwards over-ruled, may be á ground for a new trial ; this means, I apprehend, where the case is itself doubtful, and there is reason to believe that the jury lias been operated upon by illegal evidence, though the same were afterwards over-ruled. It is one of those matters which in the exercise of a proper discretion, [381]*381the court may in some cases consider, though the party cannot claim it as a legal right. I again repeat that if this objection stood alone and the verdict were in other respects satisfactory, I would hesitate about making this rule absolute.
Some additional evidence of an illegal character was admitted, as that the consideration of the deed from Abraham Leonard to Charles Wood and others, under which the defendants in part justified, had not been paid to Leonard, according to the agreement made at the time of the sale. There is nothing to justify this evidence — it was aside the issue, and though the court in its charge took off, perhaps effectually, its edge, yet it was not overruled.
3. The next error assigned is that the court erred in its charge to the jury. It would be almost matter of surprise if under this general assignment of error, some objectionable matter couid not be found in the very thorough and elaborate charge delivered in this case. But upon careful consideration, I apprehend there is not much ; and what there, is lias originated in the hurry incident to a trial at the circuit. The court in one part of its charge said to the jury “if you are satisfied that the plaintiffs’ father had the title of Abraham Leonard, by virtue of such Sheriff’s deed, as has been asserted,” or by 20 years’ adverse possession, &r., then the plaintiff may maintain their action,&c. and yet I apprehend the court did not mean to leave it an open question whether such deed had in fact been made, for as before said, the jury were instructed that the evidence of the existence of such a deed,was so slender that unless they could find for the plaintiff) on other grounds, they might consider all the evidence in relation to a deed, as over-ruled. And that it ought to have been over-ruled as illegal, I have already shown. That part of the charge therefore, abo\c alluded to, called their attention to a false issue, and in this particular, was objectionable.
So too, the charge represents Abraham Leonard as having sworn that about the year 1800 or 1806, he yielded up the whole tract to .Edmund Brewer, never afterwards exercised any acts of ownership — got his firewood by permission — and though not recollecting any particular agreement- — considered himself as having no tille, and living under Brewer.
If this were so, the question of adverse possession was hardly [382]*382an open one, and there was scarcely a point left for the decision? of the jury. But if the state of the case be correct, the witness-not only did not say anything about Ids not recollecting any particular agreement, but he said he paid no rent — took no lease, and considered himself as living, under nobody. This evidence was most important as connected with the question of adverse possession; and should have been left to the jury. With these exceptions which apply more to the statement of facts, than the' law of the charge, it appears to me, that the complaints of the defendants’ counsel, are without grounds.
4. it was lastly argued that admitting the admission of illegal evidence, &c., the verdict is sustained by other legal evidence- and by law. But of this I do not feel so well assured, as I could-wish, in a case where I would deny a re-hearing, notwithstanding manifest and important illegalities upon the trial. We are not in such cases to-look merely into- the weight of evidence; to assume the province of the jury ; and after rejecting that held by us illegal, go into-a careful estimate of the amount which remains, and then substitute our judgment upon the facts, in place of that of the jury. The legal principle, is intended to apply to* plain cases; not to burthen this court with the investigation of complex questions of fact, peculiarly within the province of another tribunal.
In view of this whole case, I cannot help thinking, the purposes of justice will be best answered by a new trial.
Fokd, andNEVius, Justices, concurred.