The opinion of the Court was delivered by
Rogers, J.
This is an ejectment for one hundred and ninety-five acres and ninety-six perches of land, in which the plaintiffs claim title under an improvement by Levi Blew, the right to which is regularly vested in him, by sundry conveyances. The plaintiff gave in evidence the record of a judgment, John Hughes v. Levi Blew and others; a sale of the premises by the sheriff, and a deed by him to James Blew. He also gave in evidence a deed from James Blew to Anthony F. Miller, the plaintiff. The defendant commenced his title with a warrant to John Schall, one of the defendants, in which it would seem, John Drehr, another defendant on the record, was interested. The defendant also relied on a disclaimer of title, by James Blew, who was the purchaser at the sheriff’s sale. The plaintiff offered in evidence the declaration of Dréhr, as to the manner and time the land was taken up, on the Schall- warrant: whereupon the plaintiff was permitted to prove, by Jacob Miller, “ that in the summer of 1824 or 1825, he was in company with Drehr at Orwigsburg: that Drehr said he knew a piece of very good coal land : that if the witness would, advance the money, they would take up the land in company. Said he would, if it was certainly vacant. Drehr said, if witness would help to take it up, he must come up with the horses; and they would go at night, so that nobody should see them. Witness asked Drehr how it came, that nobody was to see them, and then said, if nobody was to see us, he would not do it: that he would not go up at night. After two or three weeks, witness came up again, and asked if the land lay so. Drehr said, no; now he and his neighbour, Schall, had taken it up : that if witness had not been an old woman, he could have had a share of it.” The defendants complain of the admission of this evidence. The object of the testimony was to show a fraud in Drehr, and to deduce an inference from the clandestine proceeding on his part, that he was well acquainted with Blew’s improvement. And in this point of view, it was pertinent testimony against Drehr, who is a party to the record, and at or about the time the transaction alluded to took place, had an interest in the warrant. At this time, he was the principal actor, and was then meditating the plan of surreptitiously obtaining the right to the land. The testimony must be taken together, and must be viewed as one transaction. When the witness saw him again, the land had been taken up on the Schall warrant, on the same conditions, and the jury were asked to infer, in the same manner as was pro[161] posed by Drehr to Miller. The declarations of a person, immediately preceding an act, or at the time, may be given in evidence, to affect him, as part of the res gestee. If Drehr had been the only defendant, it would hardly admit of argument, that his declarations were competent testimony. The admissions of a party to a suit, against his interest, are evidence in favour of the other side, when they bear on the matter in issue, whether made during the time he had the interest, or immediately preceding it, when he was about to acquire one. It is however said, that at the trial, Drehr had no interest; and that his declarations cannot be given in evidence to affect others. Whether the evidence admitted could affect the interests of the other defendants, it is not now material to inquire; as it is sufficient to sustain the judgment, that it was competent evidence against Drehr. The return of the sheriff, by the act of the 18th of April, 1807, is prima facie evidence that the person on whom the service is made, is in possession, whether he be or be not a party named in the writ. Now, although the defendants have given in evidence a release from Drehr, yet non constat, that by subsequent title, he may not have re-acquired an interest in the premises; and it was not for the Court to anticipate that, in a subsequent part of the cause, the defendants would rebut the inference, arising from the sheriff’s return. The defendant alleges that Drehr was made a party to the suit for the express purpose of making his declarations evidence, so as to prejudice the right of others. It sometimes happens, that a witness is made defendant, to exclude his testimony. And when no evidence has been produced against him, he is entitled to his discharge, as soon as the opposite party has closed his case; and may then give evidence for the others. And this is permitted to avoid injustice. But if there is any, even the” slightest evidence against him, he cannot be discharged before the rest, and the case must go altogether to the jury. In analogy to this principle, if there had been no evidence against Drehr, a .verdict might have been taken in his favour. But, as there was conflicting evidence as to the possession of Drehr, although the evidence greatly preponderated in his favour, even if it has been the case of a witness, the defendants would have lost the benefit of his testimony. The defendants say they were greatly prejudiced by the testimony of Miller; but the only way to avoid it was, by praying a special direction to the jury, that it was evidence against Drehr only, and such of the defendants as had notice of the fact. Whether any of the defendants are bona fide purchasers without notice, it will be time enough to decide, when the question properly arises. It is sufficient to decide that the Court were not in error in receiving the evidence at the time, and under the special circumstances of the case. It was evidence, in this stage of the cause, against Drehr; and though there were other defendants, that fact cannot alter the principle. It was in the power [162] of the jury to find a verdict against him, and in favour of the other defendants.
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The opinion of the Court was delivered by
Rogers, J.
This is an ejectment for one hundred and ninety-five acres and ninety-six perches of land, in which the plaintiffs claim title under an improvement by Levi Blew, the right to which is regularly vested in him, by sundry conveyances. The plaintiff gave in evidence the record of a judgment, John Hughes v. Levi Blew and others; a sale of the premises by the sheriff, and a deed by him to James Blew. He also gave in evidence a deed from James Blew to Anthony F. Miller, the plaintiff. The defendant commenced his title with a warrant to John Schall, one of the defendants, in which it would seem, John Drehr, another defendant on the record, was interested. The defendant also relied on a disclaimer of title, by James Blew, who was the purchaser at the sheriff’s sale. The plaintiff offered in evidence the declaration of Dréhr, as to the manner and time the land was taken up, on the Schall- warrant: whereupon the plaintiff was permitted to prove, by Jacob Miller, “ that in the summer of 1824 or 1825, he was in company with Drehr at Orwigsburg: that Drehr said he knew a piece of very good coal land : that if the witness would, advance the money, they would take up the land in company. Said he would, if it was certainly vacant. Drehr said, if witness would help to take it up, he must come up with the horses; and they would go at night, so that nobody should see them. Witness asked Drehr how it came, that nobody was to see them, and then said, if nobody was to see us, he would not do it: that he would not go up at night. After two or three weeks, witness came up again, and asked if the land lay so. Drehr said, no; now he and his neighbour, Schall, had taken it up : that if witness had not been an old woman, he could have had a share of it.” The defendants complain of the admission of this evidence. The object of the testimony was to show a fraud in Drehr, and to deduce an inference from the clandestine proceeding on his part, that he was well acquainted with Blew’s improvement. And in this point of view, it was pertinent testimony against Drehr, who is a party to the record, and at or about the time the transaction alluded to took place, had an interest in the warrant. At this time, he was the principal actor, and was then meditating the plan of surreptitiously obtaining the right to the land. The testimony must be taken together, and must be viewed as one transaction. When the witness saw him again, the land had been taken up on the Schall warrant, on the same conditions, and the jury were asked to infer, in the same manner as was pro[161] posed by Drehr to Miller. The declarations of a person, immediately preceding an act, or at the time, may be given in evidence, to affect him, as part of the res gestee. If Drehr had been the only defendant, it would hardly admit of argument, that his declarations were competent testimony. The admissions of a party to a suit, against his interest, are evidence in favour of the other side, when they bear on the matter in issue, whether made during the time he had the interest, or immediately preceding it, when he was about to acquire one. It is however said, that at the trial, Drehr had no interest; and that his declarations cannot be given in evidence to affect others. Whether the evidence admitted could affect the interests of the other defendants, it is not now material to inquire; as it is sufficient to sustain the judgment, that it was competent evidence against Drehr. The return of the sheriff, by the act of the 18th of April, 1807, is prima facie evidence that the person on whom the service is made, is in possession, whether he be or be not a party named in the writ. Now, although the defendants have given in evidence a release from Drehr, yet non constat, that by subsequent title, he may not have re-acquired an interest in the premises; and it was not for the Court to anticipate that, in a subsequent part of the cause, the defendants would rebut the inference, arising from the sheriff’s return. The defendant alleges that Drehr was made a party to the suit for the express purpose of making his declarations evidence, so as to prejudice the right of others. It sometimes happens, that a witness is made defendant, to exclude his testimony. And when no evidence has been produced against him, he is entitled to his discharge, as soon as the opposite party has closed his case; and may then give evidence for the others. And this is permitted to avoid injustice. But if there is any, even the” slightest evidence against him, he cannot be discharged before the rest, and the case must go altogether to the jury. In analogy to this principle, if there had been no evidence against Drehr, a .verdict might have been taken in his favour. But, as there was conflicting evidence as to the possession of Drehr, although the evidence greatly preponderated in his favour, even if it has been the case of a witness, the defendants would have lost the benefit of his testimony. The defendants say they were greatly prejudiced by the testimony of Miller; but the only way to avoid it was, by praying a special direction to the jury, that it was evidence against Drehr only, and such of the defendants as had notice of the fact. Whether any of the defendants are bona fide purchasers without notice, it will be time enough to decide, when the question properly arises. It is sufficient to decide that the Court were not in error in receiving the evidence at the time, and under the special circumstances of the case. It was evidence, in this stage of the cause, against Drehr; and though there were other defendants, that fact cannot alter the principle. It was in the power [162] of the jury to find a verdict against him, and in favour of the other defendants.
But it is said that the Court erred in rejecting that part of the notes of Judge Blythe, mentioned in the third bill of exceptions, The objection goes to their authentication. “ The notes here produced,” &c., says Judge Blythe in his deposition, “in my handwriting, are my notes of October Term of Common Pleas of Schuylkill County: among the notes of causes then tried, are my notes taken in the cause of Cresson et al. v. Miller, &c., No. 112, October Term, 1881.” It is very evident, that the attention of Judge Blythe was directed solely to that cause, and the evidence given in it; and that the only reason there was a general reference to the notes, arose from a practice of the judge of keeping the notes of all causes tried at a term stitched togeiher in a book for his own convenience. He says in his deposition, that it was his general practice “ to take full notes of causes which there was a probability might be reviewed in the Supreme Court. This was a- cause (referring to Cresson v. Miller) in which I took full notes.” On this statement, the notes in that cause were read without objection; but it would be going an unwarrantable length, to rule that the testimony set down as given in other causes was evidence, on such proof of authentication. It is plainly inferable, from what is said, that it is his practice to take full notes, only in cases where there is a probability that the, cause may be reviewed; but whether the cause of which evidence was sought to be given, was of that description, the judge, in no part of his deposition, informs us. If evidence for this purpose, I do not see how we could exclude any facts which appear on the face of the notes, from the beginning to the end of the term, if pertinent to issues. This w'ould introduce a laxity into the practice, which we are not disposed to countenance. It would be unsafe to extend the rule on this subject further than has been done, in cases already adjudged. The notes, I observe, on inspection, contain the arguments of counsel, the decision of the Court on points of testimony, and a journal of other matters which occur in the progress of the cause. It was not the intention, either of the parties, or the witness, to authenticate every fact noted, so as to make them evidence.
Judgment affirmed.