(Smith v. Jenks and others.)

of land, and involved a dispute between the plaintiff and the defendant, concerning their lines, both claims adjoining tracts by conveyance from a person in whom the title had been vested. The conveyance under which the defendant claimed, was of 40 acres, to himself and two others as tenants in common, under which, it was proved, that 40 acres and half allowance were to be surveyed to them. Partition was afterwards made among the tenants in common. The jury found the following verdict: "we do find that Robert Smith should have the third share of the 41 acres and 32 perches neat and if any overplus, it goes to the plaintiff." On motion of the plaintiff's counsel the court appointed T. Woodside a surveyor, to go upon the land in question, and survey the same, and ascertain the quantity for each party, agreeably to the finding of the jury. Afterwards, on motion of plaintiff's counsel, and exhibiting to the court a diagram of the survey made by T. Woodside, agreeably to the order of the court, (which was filed in court,) and notice to the defendant being proved, the court directed judg ment to be entered for the plaintiffs, for the 4 acres, 91 perches, and 3 per cent. allowance designated by the diagram.

Several bills of exceptions were taken by the defendant on the trial, and were now argued by

Merrill and Bradford, for the plaintiff in error, and Bellas and Greenough for the defendants in error.

PER CURIAM. This verdict is too uncertain-a judgment cannot be entered on it. The ejectment is for S acres of land. The jury find that the defendant is entitled to one third of the 41 acres, and 32 perches, and if any overplus, it goes to the plaintiff. What these 41 acres and 32 perches are, or where they lie, is unknown, or in what part of them the defendant is to have his one third. Nor do the jury find whether there was any overplus, or whether any thing was in possession of the defendant which belonged to the plaintiffs. The court cannot say, from this finding, whether the defendant was guilty of any trespass. If the verdict was uncertain in itself, the court could not mend it, by sending out surveyors to carry into effect what they supposed to be the intent of the jury. They could but guess at their meaning. A verdict is not good, unless it carries certainty upon its face, or refers to things by which it may be rendered certain.

Judgment reversed, and a venire de novo awarded.

[SUNBURY, June 16, 1823.]

CROUSE and another against MILLER.

IN ERROR.

When a party gives in evidence his books of original entries, kept by another, who is absent from the state, and whose handwriting is proved, the opposite party may give evidence as to the general character for honesty of such absent person. Where the suit was brought in November, 1818, and one count in the declaration averred, that in consideration that the plaintiff at the special instance, &c. of defendants, agreed to suffer them to occupy certain premises for the term of four years, commencing in August, 1816, and to board one of the defendants, plaintiff did suffer them to occupy the same for the said term of four years, and boarded one of the defendants, and a general verdict was given. Held, that though on demurrer it would be a fatal objection, that the jury gave damages for a period after the commencement of the suit, yet the defect was cured by verdict. If an exception is taken to the opinion of the court rejecting evidence, and the same evidence is afterwards admitted, the exception cannot avail the party.

ERROR to the Court of Common Pleas of Columbia county. Assumpsit in the court below, brought on the 21st November, 1818, by Henry Miller, the defendant in error, plaintiff below, against Andrew Crouse and Charles B. Crouse. The declaration which was filed in November, 1820, contained three counts: the first was in indebitatus assumpsit, stating that on the 1st November, 1818, the defendants were indebted to the plaintiff in 500 dollars, for the use and occupation of a store-house and buildings, and laying the promise on the same day: the second count was on a quantum meriut for the same: the third count stated, that whereas afterwards, to wit, on the day and year aforesaid, at, &c. in consideration that at the special instance and request of the said A. Crouse and C. B. Crouse, the said H. Miller agreed to suffer and permit the said Andrew and Charles to hold, use, occupy, possess, and enjoy a certain store-house, with the appurtenances, in township, and county aforesaid, for the term of four years, commencing the day of August, 1816, and also to board the said. Charles; the said Andrew and Charles agreed to pay to the said Henry, the sum of 500 dollars, in quarterly payments; and the said Henry avers, that confiding in said promise and undertaking of the said Andrew and Charles, so made as aforesaid, he the said Henry did suffer and permit the said Andrew and Charles to hold, use, occupy, possess and enjoy the said store-house for the said term of four years, and that he boarded the said Charles according to the term of his said agreement; yet the said Andrew and Charles, not regarding, &c. to the plaintiff's damage, 1000 dollars.

On the trial, the plaintiff gave evidence of a parol agreement by the defendants for boarding Charles, and for the premises for four years, and that possession was accordingly taken in 1816; he also proved his boarding the defendant Charles for some time; and the

(Crouse and another v. Miller.)

partnership of the defendants in the store. The defendants relied on a set off: and offered in evidence the defendants books, containing entries of goods delivered to the plaintiff, and also of cash paid him, having previously produced some of the arbitrators and others as witnesses, to show that these books were before them at the arbitration, and that the plaintiff looked over them, and did not deny these entries of cash, but objected only to some of the entries of goods delivered, and of a settlement between the parties. One of the arbitrators, however, swore that Miller objected to the books, and alleged that a great part of them were false: that he had never got such things.

The entries of cash paid to the plaintiff were objected to by the plaintiff, as evidence, and overruled by the court, and the defendants tendered a bill of exceptions.

The books were kept by Charles B. Crouse, and the entries were in his handwriting. He was absent in another state, but his handwriting was proved. The plaintiff proposed to ask one of the witnesses produced on the trial, what was the character of Charles B. Crouse for honesty, generally. The defendants objected to this question, but the court allowed it to be put, and sealed another bill of exceptions.

The jury gave a verdict for the plaintiff below for 150 dollars, 37 cents.

Bellas and Marr, for the plaintiffs in error.

1st bill of exceptions: Generally speaking, books are not evidence of cash paid, but they become so if admitted by the opposite party, or if not objected to, when he is called on to admit or deny them. In the present case, the books were material before the arbitrators, and there was evidence to show, that the plaintiff admitted their correctness in general, or at least, did not dispute it. If there was other evidence to show that he did object, all should have gone to the jury, that they might decide how far the plaintiff was bound by his former acts. In Coe v. Hutton, 1 Serg. & Rawle, 398, a cash account shown to the defendant, and not ob jected to by him, was held to be evidence, on which the jury, under all the circumstances of the case, might decide, though it was not per se regular evidence.

2d bill of exceptions. The question allowed to be asked by the plaintiff, as to the character of Charles B. Crouse, for honesty, was improper. He was one of the defendants. His character was not in any way in question on the issues of non assumpsit, and set off. Besides, where you examine as to the character of a witness, the question can only be as to his veracity.

3d. The last count in the declaration is bad, because it shows a cause of action which did not exist at the time of commencing the suit. The contract stated is, for the occupation of a store-house and buildings for four years, from August, 1816. But this suit was commenced on the 21st November, 1818, and the verdict is

(Crouse and another v. Miller.)

general on all the counts: so that the jury have given damages for the occupation of the premises after the suit brought. In Baker v. Bache, 2 Ld. Ray, 1382, the judgment was reversed on error, because the declaration averred a promise by the defendant on the 19th June, 1718, to pay for the necessaries the plaintiff should provide for his sons, and an averment that he found necessaries for five years and nine months: whereas the action was commenced before the expiration of that time. In Hambleton v. Veere, 2 Saund. 169 the plaintiff declared for procuring his apprentice to depart from his service, and for the loss of his service for the whole residue of the term of his apprenticeship, which was not expired at the commencement of the action: and general damages being assessed, the judgment was arrested. These decisions are explicitly recognized in the case of Gordon v. Kennedy, 2 Binn 287, where the plaintiff's declaration stated a promise by the defendant on the 8th July, 1805, to pay him 800 dollars per annum, and to find him a lodging room, bed, and fuel, and laid breaches of the contract in every part, upon which the jury assessed general damages: judgment was reversed, because it appeared by the record that the action was brought to March, 1806, before the 800 dollars were due. This decision is a strong authority in favour of the plaintiff in

error.

Grier and Greenough, contra.

1st bill of exceptions. It is admitted that books are not evidence of cash paid per se; and as to the express or implied admissions of the plaintiff before the arbitrators, the evidence was contradictory. The case of Coe v. Hutton, only proves, that if an account is shown to a party, and he does not object to it, it is evidence against him: but it was proved in the present case that Miller objected to the books as false.

2d bill of exceptions. The character of a defendant for honesty may certainly be inquired into, when he brings forward his own books of original entries as evidence, because he stands in the situation of a witness, and the character of any witness may be questioned. If Charles B. Crouse had been present he must have been

sworn.

3d. The declaration is good after verdict. Beckwith v. Nott, Cro. Jac. 504. Though it avers a contract and occupation for four years, it does not claim the whole 500 dollars as due.

The opinion of the court was delivered by

GIBSON, J. As the matters contained in the first bill of exceptions were offered again in a subsequent stage of the cause, and admitted, it is unnecessary to say any thing with respect to the propriety of their rejection when first offered. There is, however, another bill of exceptions which it is necessary to consider. The defendant below had given in evidence his books of original entries a part of which was in the hand writing of his son Charles

(Crouse and another v. Miller.)

B. Crouse, who was not called, being out of the state; and the plaintiff proposed to examine a witness to his general character for honesty: which he was permitted to do, and the defendant excepted.

Books of original entries are at best a dangerous kind of evidence. They are admissible on grounds of necessity, not of convenience: and the decisions in their favour have already gone as far as expediency can require, or prudence justify. Such books are barely competent, and although they often afford perfectly satisfactory evidence, yet being the act of the party using them, and affording extraordinary facilities to the practice of deception in a way that renders detection difficult, they are entitled to no peculiar protection, but are liable to have their credibility impeached by every means in the power of the opposite party. It is obvious that the books of a man notorious for roguery, ought not to claim any thing like the degree of respect which is due to the books of a man who has established a character for honesty and fair dealing: and although the point under consideration is in some measure new, I would not hesitate, were analogous principles wanting, to decide it on the principles of common sense. There are decisions, however, that contain a principle which when applied to this point, fully decides it. Where the subscribing witness to a will or a deed impeaches it on the ground of fraud, and accuses another subscribing witness, who is dead, of having been an accomplice, the party claiming under it may give evidence of the general good character of such deceased witness, and this on the ground that if living he might have been examined, when if his character had been attacked it might have been defended in the same way. The handwriting of a witness is less satisfactory than his oath, and is competent from necessity only when his oath cannot be had; and standing in the place of the oath, it derives its claim to respect from the consideration that the law presumes every man honest till the contrary appears. Here had Charles B. Crouse been present these books would not have been evidence without his oath; and the next best evidence having been given in his absence, his character was open to the same kind of animadversion that it would have been subject to if he had been a witness in the cause. But it is objected that if he had been a witness, his character for honesty could not have been inquired into, but only his character for veracity. It is true that if the books had been attested by his oath, his oath might have been impeached on the ground of veracity; but I will not say that the books might not also be impeached on the ground of want of honesty. Here however the books were not attested by his oath, but by evidence of his handwriting; and deriving all their claim to respect from his character, whatever affected the one, very fairly had a direct tendency to affect the other.

An objection is made to the declaration, that the action is for use and occupation by the permission of the plaintiff for a term of years, and that it is so laid as to be apparent that the term could