Douglass v. Mitchell's Executor

• Citation: 35 Pa. 440
• Parties: Douglass versus Mitchell's Executor.
• Decision Date: 01 January 1860
• Court: United States State Supreme Court of Pennsylvania

Page 440

35 Pa. 440

Douglass versus Mitchell's Executor.

Supreme Court of Pennsylvania.

CERTIFICATE from the Court of Nisi Prius.

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McMurtrie and Thayer, for the plaintiff in error.

Rawle and Hirst, for the defendant in error.

The opinion of the court was delivered by STRONG, J.

The bill single and the promissory note given in evidence, made out a primâ facie case against the defendant. The signature to the instruments is admitted to have been genuine, but the defence is, that no consideration passed from Douglass to Mitchell for the instruments; that no money was loaned as the plaintiff claims, and from this it is inferred, that the instruments must have been forgeries written over genuine signatures. The disputed ground of the case, therefore, was in the question, whether Thomas S. Mitchell had actually received from Douglass the sums of money for which it was claimed the notes were given. To maintain that he had not, was the avowed purpose of all the evidence rejected by the court, and to the rejection of which exception was taken. Now, it is to be observed, that the fact in controversy was not fraud itself, but a thing from which fraud was sought to be inferred. Where the question is one of fraud, it has often been said, that wide latitude is to be given to the admission of evidence; that is, collateral facts may be proved, having only a very remote bearing upon the question, a bearing so remote that they would not be considered legitimate on the trial of other questions not of fraud. But though this is true, yet those collateral facts, from which the inference of fraud is sought to be drawn, must be proved precisely as facts are proved in other cases. Now, in other cases, no one will argue that a party, sued for an alleged loan of money, can disprove the claim by giving in evidence his own books, or showing that he had made no memorandum of the receipt of any such money. The inquiry is not, what has a moral tendency to persuade the mind, but what has a legal tendency. Proof of good character of a defendant would be persuasive, in many cases, that he had honestly complied with his contracts, and would doubtless affect the minds of a jury, but it is not on that account admissible. It is true, that in some rare cases, evidence of the acts of a party has been admitted in his own favour, but his written or oral declarations, or his silence, have not been permitted to aid him. The case which approaches nearest to warranting the admission of such evidence is, perhaps, Brown v. Clark, 2 Harris 471. The question in that case was, whether Mudge and Clark were partners at the time the note in suit was given. A witness was permitted to testify when the formation of the partnership was advertised, and when the last advertisement was published; this he was permitted to state as his means of knowledge. This, however, by no means rules what is claimed in this case; the testimony was admitted because it related to facts from which the witness refreshed his recollection. Considering, then, that the fact in issue, to which the evidence offered was addressed, was debt or no debt, a loan of money to Thomas S. Mitchell or no loan, we think...