Hall v. Vanderpool , 156 Pa. 152 ( 1893 )

Opinion by

Mr. Justice Mitchell,

A discontinuance is in strict law only by leave of the court. While we do not see any injury that would have resulted to any of the parties from a discontinuance of the feigned issue in this case, its allowance was in the discretion of the court below, and is not re viewable here.

The plaintiff’s second point was properly refused, as it failed to include in its statement of facts, the claim of Eunice Hall to the property, which was the most important claim on which the sheriff based his application for an interpleader. While her claim was existing and undetermined, the interpleader could not be quashed as the point requested.

The third point was also properly refused for the same reason, and also because the priority of the Crimmins fi. fa. against both Hall and Vanderpool did not necessarily entitle it to the money, without regard to which of them the property belonged to. The Crimmins writ -was a fifth pluries fi. fa. (not yiits fi. fa. as the local usage seems incorrectly to call it), and it was charged that these successive executions had been issued and held open without levy for nearly two years, not in good faith but to protect the debtor’s property from other creditors. If that was established, then the defendant’s writ though later in date would have taken precedence, as the learned judge charged in his answer to plaintiff’s first point.

The fourth assignment is perhaps the most important, for while the rule invoked by the learned judge is well established, yet the terms in which he laid it down were somewhat broad. It was thus stated by Chief Justice Thompson, in Frick v. Barbour, 64 Pa. 120: The evidence in a case “often consists in what is not proved as well as what is proved. Where withholding testimony raises a violent presumption that a fact not clearly proved or disproved exists, it is not error to allude to the fact of withholding, as a circumstance strengthening the proof.” Fully expressed, it is this: where evidence which would properly be part of a case, is within the control of the party whose interest it would naturally be to produce it, and, without satisfactory explanation, he fails to do so, the jury may draw an inference that it would be unfavorable to him. It is an inference of fact, not a presumption of law. But though the learned judge used the word presumption, we do not think it wras intended to be a binding instruction or that the jury could have so considered it. Presumption, it will be observed. was the word that Chief Justice Thompson used in stating the rule, but the context shows in his opinion, as the circumstances do in the learned judge’s charge here, that it was used in the sense of' an inference which the jury were at liberty to draw. The plaintiff, Mrs. Hall, was a daughter of Nelson Vanderpool, and was claiming the property levied on as hers by transfer from her father; the defendant was a creditor of Nelson Vanderpool, who was resisting the claim on the ground that the alleged transfer was not made at the time it professed to have been, and was fraudulent in law if hot in fact. Under those circumstances Vanderpool was of course a most iinportant witness, and the judge might well feel called upon to draw the jury’s attention to the omission to call him in support of the alleged transfer. The terms in which he did so were forcible, but we do not think they could have misled the jury. The latter must have understood, as the learned judge intended, that the matter was left to them on the whole evidence, including the inference from testimony that ought naturally to have been put in the case but was not.

Judgment affirmed.