Heslop v. Heslop

• Decision Date: 02 January 1877
• Citation: 82 Pa. 537
• Parties: Heslop <I>versus</I> Heslop.
• Court: Pennsylvania Supreme Court

82 Pa. 537

Heslop versus Heslop.

Supreme Court of Pennsylvania.

October 26, 1876.

January 2, 1877.

October 26th 1876.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON and WOODWARD, JJ. WILLIAMS, J., absent

Error to the Court of Common Pleas of Cambria county: Of October and November Term 1876, No. 41.

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Samuel S. Blair, for plaintiff in error.

R. L. Johnston and D. McLaughlin, for defendant in error.

Mr. Justice WOODWARD delivered the opinion of the court, January 2d 1877.

In the charge to the jury the court instructed them that "where a party in a cause attempts to manufacture testimony, the jury are justified and warranted in presuming that his case is not well founded." This instruction is the subject of the third assignment of error. While the testimony offered on behalf of a party whom the jury find to have tampered with witnesses should be carefully and even suspiciously scrutinized, yet that testimony is not to be utterly disregarded and set aside, and the verdict be left to rest on a presumption arising from the party's misconduct, however flagrant and however clearly proved. It is manifest that the court did not intend to lay down a rule that would produce such a result, for in the same connection the jury were told to consider the testimony on this question, and give to it such weight as it might be entitled to. Still, the effect of the rule which was stated could easily have been to mislead the jury, and to induce a verdict against evidence which might have been found to be conclusive under a more guarded charge.

Under the peculiar circumstances of this case the evidence specified in the fourth assignment of error ought to have been received. Alice Heslop, the plaintiff below, sought to recover dower in lands of which Joseph Heslop, whom she claimed to have been her husband, died seised. By his will Joseph Heslop devised the land to Mary Heslop, the defendant below, during her life, and after her death to their son, Joseph Heslop, Jr. The plaintiff alleged that she was married in 1828, and the fact of the marriage has been found by the verdict. The substance of the evidence offered by the defendant, which the court rejected, was that she was entirely ignorant that Joseph Heslop had ever been married to the plaintiff when she herself married him; that he had at that time no means of his own; that she had an estate of several thousand dollars, which he appropriated and invested in the property in which dower was claimed in this suit; and that she earned during her residence in Johnstown considerable sums of money, which were applied towards the maintenance of Heslop's family. If Heslop was the husband of the plaintiff, the defendant was certainly not his wife. The second marriage was a mockery and a fraud. It gave to Heslop no right to the possession of the defendant's person and no right to the possession of her property. Even if she gave him her estate, the gift was to a man who had imposed himself upon her as her husband, and...