Brubaker's Administrator v. Taylor , 76 Pa. 83 ( 1874 )

Mr. Justice Sharswood

delivered the opinion of the court, May 25th 1874.

Under the second section of the Act of Assembly of April 15th 1869, Pamph. L. 30, when the plaintiff below was called to the stand as a witness by the defendants they had a right to examine her as if under cross-examination — put to her leading questions— and draw from her any facts or admissions which would corroborate their own case or weaken hers. The act provides that “ the party calling for such examination shall not be concluded thereby but may rebut it by counter testimony.” It is evident that she was to be considered in all respects as if originally offered and examined as a witness in her own behalf. We think it clear then that the questions overruled by the learned court and which form the subject of the first three assignments of error were entirely proper. The answers would either have corroborated the testimony of Mrs. Hauek, the witness examined by the defendants, or if desired, Mr. and Mrs. Spiehlman could have been called to contradict her. If she had really made such admissions, Mrs. Taylor would have had the opportunity of explaining how she came to make them. To this she surely had no right to object. It was not the case of contradicting and discrediting an ordinary witness in a material point by showing inconsistent declarations out of court, when according to the well settled rule, such questions are in general necessary in order to give the witness an opportunity of explaining; but as Mrs. Taylor was the party, these declarations were evidence in themselves and could be proved without giving such opportunity. It is supposed, however, that they were not relevant to the issues. The pleas were nil debet and payment. It is true that nil debet to a declaration on a sealed instrument is bad on general demurrer. But if the party chooses to go to trial upon it without objection, it is not to be treated as a nullity: Ziegler v. Sprenkle, 7 W. & S. 179. It is in effect not indebted, the same as in debt on simple contract. Surely then if she declared at any time that the note had been destroyed, and that it would not be brought forward unless the estate was not properly settled, and she did not get her rights, it tended to show that there was no existing debt, whether it had been discharged by payment, release or in any other way. But even under the plea of payment strictly construed the evidence was admissible. Nineteen years had elapsed between the maturity of the note and the institution of this suit, and although not long enough to raise the presumption of payment in law, yet quite enough to justify leaving the question to the jury with other circumstances. Now these declarations, if made by Mrs. Taylor, would amply justify the court in submitting to the jury as a question of fact, to presume that the debt had been paid or discharged.

As to the part of the charge complained of in the fourth assignment, as the learned judge evidently referred to payment in money or its equivalent, we cannot say that it was an error.

Judgment reversed, and a venire facias de novo awarded.