The opinion of the Court was delivered by
Rogers, J.
This was an action on the case, brought by Mary Towers against the executors of her deceased husband, John Towers, to recover money lent to him during the coverture. Mr. Justice Kennedy charged the jury, that by the marriage, without the intervention of an agreement, the husband acquired an absolute right to the possession of his wife’s real estate, and an absolute right of property to all her personal estate, including her money, or right to claim money reduced into possession. • But although the husband, by the mere operation of law, became entitled to all her property, whether in possession or a chose in action, yet, that the parties, before marriage, may, by articles of marriage settlement, alter the law, so that notwithstanding the marriage, she may act in respect of her separate estate as if she were a feme sole. According to the legal effect of the agreement between Towers and his wife, before marriage, Mrs. Towers continued the owner, in equity, of her estate, as if no marriage had taken place. Her husband had no right whatever to her money, nor to the rents and profits of her real estate. She had a right to dispose of them as she pleased, either by gift or loan, as well to her husband as to a stranger ; and that, if lent to the former, he was as much bound to repay her, as the latter. If Captain Towers received any of her rents, without her consent or autho[57]*57rity, he was bound to account for them; but if he received them with her consent, without any complaint or objection being made, the presumption would be that they were a gift from her to him. Earl Digby v. Howard, (6 Eng. Com. Law Rep. 273). To the general principles contained in the direction, neither party can take any just exception; nor is there any thing in the ^particular exception to this part of the charge. We do not understand Mr. Justice Kennedy to have ruled that the single fact, that harmony did not always exist between Captain Towers and his wife, would, of itself, render his estate liable, but that, among other circumstances, might be taken into consideration by the jury, in determining the material question, whether the various items given in evidence, were gifts or loans. The chief evidence of the plaintiff is derived from entries made by Captain Towers himself. In some of the entries, the money is expressly entered as borrowed; and when this is the case, the judge ruled it as a matter of law, in which direction we concur, that it must be taken as borrowed, because it is so denominated; but in, all other enti-ies, where she is simply credited with so much cash, the question whether it is a loan or a gift, must be left to the decision of the jury. Neither party have any just cause of complaint on account of the remarks of the judge on this part of the case; for we concur with him in the opinion, that there is nothing in the form of the entries, which proves that the money was received as gifts, and not as loans.
The counsel for the defendants except to that part of the charge, which relates to 'the item of $940. A misdirection in relation to this, which was the principal item in the account, will undoubtedly entitle the defendant to a new trial. “ The item of $940,” say the Court, “has been much commented upon; and this, it must be observed, was read to you as being in the handwriting of Captain Towers, without any objection; and although the fact of its being wholly in his proper handwriting was not directly denied, yet a course of observation has been pursued, tshow that it may be well doubted. It would have been better had the counsel for the defendant apprised the counsel for the plaintiff of their doubts as to this, so as to have afforded them the chance of proving that the figures, $940, as well as the rest of the item, were in his handwriting. If the plaintiff had witnesses in attendance to prove the fact, the defendant’s counsel, by permitting the entry to be read, without objection, hesitation or remark, may, themselves, have thrown the plaintiff off his guard, and induced him„ to dispense with calling his witnesses. [58]*58Tinder this view, the defendant is too late in objecting to the entry, as not having been made by Captain Towers.” In this conclusion, we are of the opinion, the Court was in error. The defendant cannot be said to have expressly admitted that the entries were in the handwriting of Captain Towersbut for the purpose of avoiding expense, and giving the party unnecessary ■ trouble, they agree to dispense with the preliminary proof, which it would otherwise have been incumbent on the plaintiff to give, before the evidence could be received. But the Court would seem to have put it on the ground of an admission, which amounts to an estoppel; and this the facts do not warrant. But if the case be viewed as merely with the of handwriting, there is no *principle of law or policy which precludes the party from showing, either from external or internal evidence, that one, or all the items of a complicated and intricate account, are forgeries or erasures; or, from some other cause, are not properly the grounds of charge. In the course of the remarks of the counsel, they endeavoured to show, that the face of the papers exhibited appearances which were calculated to excite reasonable doubts of the genuineness of this item. Whether they succeeded in this, or not, is not for us to say. It is sufficient, that by the positive direction of the Court, the defendant was, in effect, precluded from going into the inquiry. If it should be ruled, that whenever a party dispenses with proof of handwriting, he is prevented from an investigation of the truth of the facts, whatever internal evidence there may be of improper conduct, there will be an end of a practice, so worthy of imitation, which has obtained in this part of the state, so correct and proper in itself, and which is attended with such obvious conveniences to counsel and suitors. We are of the opinion that the justice of the case required that it should have been left as an open question of fact, to be decided by the jury ; or if there was an allegation of surprise, a juror should have been withdrawn, so as to have given an opportunity for a more deliberate examination of this part of the account. But independently of the strict legal objection to the charge, there is a reasonable doubt whether justice has been done; and for this reason, connected with the peculiar circumstances which attended the trial, we think that the cause ought to be committed to another jury.
The opinion of the Court on the last point, would answer the defendant’s purpose, but there are other exceptions which have been pressed upon the Court, and which it may be proper briefly to notice. The defendant’s counsel have no just ground of exception to the direction as to the entries in the books. There is no evidence to show that any books were withheld by the plain[59]*59tiff. The presumption is, that the books which were alleged to be withheld, were in the possession of the executor ; nor is this presumption rebutted by the fact, that the will was not proved until one month after the death of the defendant. The presumption is, notwithstanding, that he has the possession of all the testator’s papers ; and there was nothing in evidence, which raised a reasonable ground of suspicion, that the plaintiff had any books or documents, except those which were produced. And the same may be said as to the objection, that the judge refused to permit the counsel for the defendant to give in evidence certain entries in the cash book. The law is correctly stated in Withers v. Grillespy, (7 Serg.
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The opinion of the Court was delivered by
Rogers, J.
This was an action on the case, brought by Mary Towers against the executors of her deceased husband, John Towers, to recover money lent to him during the coverture. Mr. Justice Kennedy charged the jury, that by the marriage, without the intervention of an agreement, the husband acquired an absolute right to the possession of his wife’s real estate, and an absolute right of property to all her personal estate, including her money, or right to claim money reduced into possession. • But although the husband, by the mere operation of law, became entitled to all her property, whether in possession or a chose in action, yet, that the parties, before marriage, may, by articles of marriage settlement, alter the law, so that notwithstanding the marriage, she may act in respect of her separate estate as if she were a feme sole. According to the legal effect of the agreement between Towers and his wife, before marriage, Mrs. Towers continued the owner, in equity, of her estate, as if no marriage had taken place. Her husband had no right whatever to her money, nor to the rents and profits of her real estate. She had a right to dispose of them as she pleased, either by gift or loan, as well to her husband as to a stranger ; and that, if lent to the former, he was as much bound to repay her, as the latter. If Captain Towers received any of her rents, without her consent or autho[57]*57rity, he was bound to account for them; but if he received them with her consent, without any complaint or objection being made, the presumption would be that they were a gift from her to him. Earl Digby v. Howard, (6 Eng. Com. Law Rep. 273). To the general principles contained in the direction, neither party can take any just exception; nor is there any thing in the ^particular exception to this part of the charge. We do not understand Mr. Justice Kennedy to have ruled that the single fact, that harmony did not always exist between Captain Towers and his wife, would, of itself, render his estate liable, but that, among other circumstances, might be taken into consideration by the jury, in determining the material question, whether the various items given in evidence, were gifts or loans. The chief evidence of the plaintiff is derived from entries made by Captain Towers himself. In some of the entries, the money is expressly entered as borrowed; and when this is the case, the judge ruled it as a matter of law, in which direction we concur, that it must be taken as borrowed, because it is so denominated; but in, all other enti-ies, where she is simply credited with so much cash, the question whether it is a loan or a gift, must be left to the decision of the jury. Neither party have any just cause of complaint on account of the remarks of the judge on this part of the case; for we concur with him in the opinion, that there is nothing in the form of the entries, which proves that the money was received as gifts, and not as loans.
The counsel for the defendants except to that part of the charge, which relates to 'the item of $940. A misdirection in relation to this, which was the principal item in the account, will undoubtedly entitle the defendant to a new trial. “ The item of $940,” say the Court, “has been much commented upon; and this, it must be observed, was read to you as being in the handwriting of Captain Towers, without any objection; and although the fact of its being wholly in his proper handwriting was not directly denied, yet a course of observation has been pursued, tshow that it may be well doubted. It would have been better had the counsel for the defendant apprised the counsel for the plaintiff of their doubts as to this, so as to have afforded them the chance of proving that the figures, $940, as well as the rest of the item, were in his handwriting. If the plaintiff had witnesses in attendance to prove the fact, the defendant’s counsel, by permitting the entry to be read, without objection, hesitation or remark, may, themselves, have thrown the plaintiff off his guard, and induced him„ to dispense with calling his witnesses. [58]*58Tinder this view, the defendant is too late in objecting to the entry, as not having been made by Captain Towers.” In this conclusion, we are of the opinion, the Court was in error. The defendant cannot be said to have expressly admitted that the entries were in the handwriting of Captain Towersbut for the purpose of avoiding expense, and giving the party unnecessary ■ trouble, they agree to dispense with the preliminary proof, which it would otherwise have been incumbent on the plaintiff to give, before the evidence could be received. But the Court would seem to have put it on the ground of an admission, which amounts to an estoppel; and this the facts do not warrant. But if the case be viewed as merely with the of handwriting, there is no *principle of law or policy which precludes the party from showing, either from external or internal evidence, that one, or all the items of a complicated and intricate account, are forgeries or erasures; or, from some other cause, are not properly the grounds of charge. In the course of the remarks of the counsel, they endeavoured to show, that the face of the papers exhibited appearances which were calculated to excite reasonable doubts of the genuineness of this item. Whether they succeeded in this, or not, is not for us to say. It is sufficient, that by the positive direction of the Court, the defendant was, in effect, precluded from going into the inquiry. If it should be ruled, that whenever a party dispenses with proof of handwriting, he is prevented from an investigation of the truth of the facts, whatever internal evidence there may be of improper conduct, there will be an end of a practice, so worthy of imitation, which has obtained in this part of the state, so correct and proper in itself, and which is attended with such obvious conveniences to counsel and suitors. We are of the opinion that the justice of the case required that it should have been left as an open question of fact, to be decided by the jury ; or if there was an allegation of surprise, a juror should have been withdrawn, so as to have given an opportunity for a more deliberate examination of this part of the account. But independently of the strict legal objection to the charge, there is a reasonable doubt whether justice has been done; and for this reason, connected with the peculiar circumstances which attended the trial, we think that the cause ought to be committed to another jury.
The opinion of the Court on the last point, would answer the defendant’s purpose, but there are other exceptions which have been pressed upon the Court, and which it may be proper briefly to notice. The defendant’s counsel have no just ground of exception to the direction as to the entries in the books. There is no evidence to show that any books were withheld by the plain[59]*59tiff. The presumption is, that the books which were alleged to be withheld, were in the possession of the executor ; nor is this presumption rebutted by the fact, that the will was not proved until one month after the death of the defendant. The presumption is, notwithstanding, that he has the possession of all the testator’s papers ; and there was nothing in evidence, which raised a reasonable ground of suspicion, that the plaintiff had any books or documents, except those which were produced. And the same may be said as to the objection, that the judge refused to permit the counsel for the defendant to give in evidence certain entries in the cash book. The law is correctly stated in Withers v. Grillespy, (7 Serg. & Rawle, 10.) Where books are produced, on notice, and entries read in evidence by the party calling for them, the party producing them may read other entries, necessarily connected with the same entries, if made prior to the commencement of the suit. And if the party producing them may, *then the opposite party may do so also. But the item offered was not necessarily connected with the entries which had been given in evidence. It might have been used as an argument, bearing upon other entries; but this of itself does not bring it within the principle of the case cited, and which rules the point.
It remains now to notice the exception of the defendant to the charge on the statute of limitations. This point depends on the question when the right of action accrued; for until then, in those cases where the remedy is suspended, the statute does not begin to run. Although the debt existed at the time of the loan, yet the remedy was postponed until the death of the husband. In Pennsylvania, a wife cannot sue her husband, nor can she maintain a suit, except, perhaps, as a feme sole trader, against a stranger, without joining her husband. In contemplation of law, the wife is scarcely considered to have a separate existence: she and her husband constitute but one person, and all the rights and duties which are hers at the period of the marriage, become his during the continuance of'that union. This unity of the persons of the husband and wife, is the source from which her disability to maintain suit is derived. The separate property of the wife was vested in trustees by the marriage settlement; but the money, for which the suit was brought, was received by her from the rents of the property, and paid to her as income. It was money, over which the trustees had no control, and for which they could not maintain an action. If we should rule that the statute bars this suit, it would, in effect, deprive wives of all remedy, when they had made a direct loan of money, derived from their separate property, to their husbands.
[60]*60The plaintiff has also filed several reasons for a new trial, two of which only it is material to notice.
The exception on which he principally relies, is the exclusion of the testimony of Mary Towers. Mary Towers, who was the original plaintiff, now deceased, assigned all her interest to her son, for whose use the action was tried. She was offered as a witness at the arbitration; and being objected to, the sum of $50 was paid to Mr. Norbury, one of the arbitrators, to cover costs. There is some difference between the counsel whether this amount was fixed by the arbitrators, or by the plaintiff’s counsel; but for the purpose of this case, we shall take it to have been fixed by the arbitrators. After this, she was examined as a witness. The notes of counsel, proved to contain the whole of her testimony, were offered in evidence. The $50 ultimately proved inadequate to cover-the costs of the suit. The arbitrator retained the money until the filing of the award, and then asked the plaintiff’s counsel to receive it, and apply it towards the expenses of the arbitration. He received it accordingly, and applied $39 to the payment of the arbitrator’s fees, and the remainder towards room-hire. The full amount of the remaining costs was paid into court, during the trial. The fact of *the payment, of the $50 did not appear on the records of the Court.
The Court were right in rejecting the evidence, on several grounds. Because the costs should have been paid to the prothonotary, the arbitrator having no right to receive ■ them; because although the arbitrators may have fixed the amount, yet it afterwards turned out to be entirely inadequate to the payment of costs; and because the payment did not appear on the records of the court. It is well settled, that where the interest of a party on record is entirely divested by an assignment, and by payment of a sum of money, sufficient to pay all costs which have, or may accrue, the witness is competent.* But the payment of all costs is indispensable; for where a scintilla of interest remains, it is but serving the ends of justice, to exclude the witness. And here it must be remarked, that the opinion of the witness as to his interest, cannot affect his competency. It is the fact of interest at the time the witness is sworn, that is a criterion of competency. If the facts had been known, Mrs. Towers’s testimony would have been excluded; for at the time of her examination she was clearly interested. The person who wishes the benefit of such testimony, must take the risk on himself, in paying an amount sufficient to cover all costs; and where it is not done, in case of death, he has no right to complain, that the evidence has not been received. We are also of the opinion, as has been before [61]*61intimated, that the arbitrator had no right to receive the costs, but that they should have been paid to the prothonotary; and also that the evidence was properly excluded, for the reasons assigned by Mr. Justice Kennedy, that the payment of the costs' did not appear on the record. This case is but a sample of the difficulties in which we should be involved, if the fact of payment depended on parol evidence, which is often contradictory and uncertain.
As the cause goes back to another jury, it is necessary to notice the charge in relation to interest. The jury were instructed to allow-interest on the money lent, from the time of the death of the husband. But whether, the plaintiff should have interest 'until the death of Captain Towers, was left to the discretion of the jury, with, however, a strong intimation, that if the jury believed the parties lived together -on good terms, during the coverture, and no interest was ever demanded, interest ought not to be allowed. In an ordinary case of loan, by a wife to her husband, of her separate estate, independent of contract, interest ought not to be given; because, usually, it would not enter into the contemplation of either party. Buf when coercion was used, or there was any impropriety of conduct on the part of the husband in obtaining the money, the jury would be justified in giving interest. The jury were, in substance, so instructed, and in this we perceive no error.
New trial awarded.
Cited by Counsel,'5 Wharton., 122, 141; 8 Watts, 15; 4 Watts & Sergeant, 547; 1 Barr, 328; 7 Casey, 452; 9 Id. 526 ; 14 Wright, 379; 1 P. 1. Smith, 73; 2 Id. 412; 5 Id. 417.
Cited by the Court below, 8 Wright, 173.
Cited by the Court, 4 Wharton, 453; 7 Barr, 204; 4 Wright, 94; 11 Wright, 310; 14 Id. 386.
See 11 Harris, 462; 7 Casey, 452; 9 Wright, 533 ; 14 Id. 138 ; 10 P. P. Smith, 415.