Negley v. Gard and wife.

cutor or administrator for distribution, that balance must be distributed. The executor may or may not at his election make returns to the court of this distribution. The act in force which governs the settlement of this estate, is the act of March 12, 1831. Section 14 of this act provides, that after an executor or administrator shall have made his settlement with the court, by which the balance in his hands for distribution, shall have been ascertained, and shall have made distribution such executor or administrator may, at his option, file in court an abstract of his payments with the receipts, etc. He may do it at his option, but he is not bound to do it. The next section makes it the duty of the clerk to give notice within thirty days after the term, of the filing of such abstract and vouchers. And in section 16 it is provided, that at the next term of the court after the notice is given, the receipts filed shall be examined by the court, and if no objections are made, the court shall allow the same and direct the same to be recorded; "and the executors or administrators shall, by such allowance, be discharged from so much of the sum found by the settlement with the court as aforesaid, to be in the hands of such executor [317 or administrator, as the persons whose receipts are allowed as in this section provided, are entitled to." The only effect of this action of the court is to place upon the record the receipts in the hands of the executor or administrator, and make them final as against those who have signed them, as to so much of the distributive share to which they are entitled. But although the receipts may cover the whole property, those who are entitled to a distributive share, and have not received it, are not precluded from enforcing their claim.

We think the court of common pleas did not err in overruling the motion for a nonsuit.

This in effect disposes of the whole case, with the exception of one point made by the plaintiff in error, which was this: That the suit was commenced against him alone, whereas it should have been commenced against him and his co-executor, McClure. It is sufficient to say that this is an action for money had and received, and the record shows that the money was in the hands of Negley as acting executor.

The judgment of the court of common pleas is affirmed with

cost.

Mad River and Lake Erie Railroad Company v. Fulton.

318] *THE MAD RIVER AND LAKE ERIE RAILRoad Company v. COCHRAN FULTON. (1)

The owner of a trunk is a competent witness in a suit brought by him against a common carrier, for its loss, to prove the contents of the trunk, and their value, and for the same reason, the evidence of the wife of the owner is admissible to prove the same facts.

The rule for the admission of such evidence, does not extend further than to the proof of such articles as are commonly carried in a traveling trunk. (2)

ERROR to the court of common pleas of Seneca county.

The action below was assumpsit brought by Fulton against the Mad River and Lake Erie Railroad Company, to recover the value of a traveling trunk and its contents. The declaration avers a contract on the part of the railroad company, as common carrier, to carry the wife of plaintiff below, and her traveling trunk and contents, from Tiffin to Springfield in the railroad cars of said company, and avers the loss of the trunk and contents by said

company.

The facts sufficiently appear in the opinion of the court.

The court below overruled a motion for a new trial, made by defendants below, and the overruling of said motion, and the admission of evidence of the deposition of the wife of the plaintiff below, on the trial, are assigned for error.

LANE, STONE & LANE, for plaintiff in error:

This writ of error presents two questions:

I. Whether the owner of a trunk lost by a railroad company, is a competent witness to prove the contents and their value? 319] *II. Whether the wife of such owner is a competent witness for her husband in such a suit?

I. The main point is one where we can add nothing to the former discussions and obvious reasoning. I have never met with any authority in any respectable book except Greenleaf's Evidence.

(1) See Levi Sams v. Stewart & McKibben, reported in this vol. on p. 69; 7 West. Law Journal, 448.

(2) See State of Ohio for use Monroe Tp. v. Geo. Williams, et al. 13 Ohio,

495.

Mad River and Lake Erie Railroad Company v. Fulton.

His opinion, as a lawyer, has since been deliberately overruled by the Supreme Court of Massachusetts, where the authorities are collected and discussed. 12 Metc. 44. There is no case in the law, (Connecticut book-debt excepted), in which a party plaintiff is a competent witness for himself on the main issue.

II. But if he were competent, his wife is not. His exclusion is on the ground of interest: her exclusion depends on a different rule-a rule of policy, to prevent any possible interference with the marital relation.

If the wife be competent for the husband, she may be called by the other party to testify in chief, or may be even examined as to facts against him. She may be required to testify as to every point connected with the case. If she enumerate the contents of the trunk, she may be even examined as to the title, and required to relate all she may know, however it may affect her husband. We can not doubt the reversal of the judgment.

W. H. GIBSON, for defendant in error:

On the trial in the common pleas, the present defendant in error, "to prove the description and value of the contents of the trunk," offered the deposition of his wife, which deposition was objected to by counsel for plaintiff in error; but the objection was overruled by the learned judge presiding, and the deposition was read. Did the court below err in permitting this deposition to be read? This appears to be the only question for decision."

From necessity, a party must, in certain cases, be allowed to *give evidence in his own favor, to prevent "a failure of [320 justice."

But we insist that the rule adopted on the trial of this canse, in the court below, is at once a reasonable and necessary rule. When an individual contracts to be carried on a railroad, his baggage is taken into the care of the company. It is removed from the eye and control of the owner. The company has full power to protect the property thus committed to its exclusive care, by all necessary vigilance. Its failure to do so is not chargeable on the owner, as he has no power to control or prevent it. He is absolutely excluded from his baggage, and the latter is secured by the application of locks and guards, and placed beyond the observation of the owner.

The company may, as a protection against bad faith and false swearing, shield itself: First. By a return of the property, to the

Mad River and Lake Erie Railroad Company v. Fulton.

owner, which, with ordinary care on the part of the company, no combination of circumstances need prevent its doing. Second. The character of the party is open to assault. It may be discredited, if unworthy of belief. Would a respectable witness, for a few dollars, perpetrate a foul crime? Not often. The statements given by him will generally be entitled to entire confidence. They will often be corroborated, (as in the present case), by the testimony of others. Perjury practiced to injure the company, may be readily exposed and punished. It is a rule as ancient as truthful, that "for every wrong there is a remedy." If the rule insisted upon by the plaintiff in error be correct, the owner can do nothing more than prove the delivery of his trunk to the company -the payment of his fare to its agent, the size and external description of the trunk, and exhibit a check, admitting the receipt. of it into the hands of the company.

This proof he can easily make. But the number and value of the lost articles contained in the trunk, it is often impossible, and always difficult, to prove. The number, description and value of articles in a lost trunk, can not often be proved, except by the 321] oath of the person who placed them in charge of the company, and who is most nominally their owner. Experience and observation teach this.

The necessity for a departure from the common law rule in this particular, is too evident to be overlooked by American courts. In the case cited in Massachusetts (12 Metcalf), the court refused to depart from the common-law rule. Our courts should respect the decisions of the courts of other states, but are not bound by them. A rule that is unsupported by reason, should not be adopted. The authority cited is not founded in reason or justice, and should not influence this court.

We have demonstrated the justice of the rule we claim, and now assume that it is sanctioned by respectable authority. The case of John Romand v. Arthur McGill et al., recently decided in Pennsylvania, is a case directly in point. In that case, suit was brought to recover the value of two trunks and their contents, and tried in the District Court of Allegheny county. The plaintiff's counsel offered in evidence the deposition of plaintiff and his wife, to prove the articles lost, and the value of each. Among the items were valuable articles of jewelry. The depositions were objected to, but the court permitted them to be read to the jury.

Mad River and Lake Erie Railroad Company v. Fulton.

The case was taken to the Supreme Court, on writ of error, and one of the errors assigned was, "that the court erred in admitting the testimony of the plaintiff and his wife, as to the value of the articles in the trunk." Rodgers, J., in delivering the opinion of the court, appears to recognize it as an established rule, that a party may, under certain circumstances, prove, by his own oath, the contents of a box or trunk, and says the rule "applies, with as much, if not greater force, to the wife, as to the husband." To reject her as incompetent, the court says, "will amount almost to a repeal of the rule, and in most cases to a denial of justice. This cace is precisely analogous to the case at bar. And the rule laid down by the learned judge, is necessary and reasonable, and we think entitled to great weight. See 3 Barr (Pa.), 451.

*Prof. Greenleaf, of Massachusetts, a man whose legal [322 attainments are surpassed by few in the United States, in his. treatise upon the Law of Evidence, vol. 1, p. 416, and notes, affirms the rule laid down in the case cited in Barr-the rule which we insist upon in this case.

Story on Bailments, 3 ed. 454; Herman v. Drinkwater, 1 Greenl. (Me.) 27; Clark v. Spencer, 10 Watts (Pa.), 335; Dugham v. Rogers, 6 Watts & Serg. (Pa.) 500, and Crane v. Whitesell, 8 Watts & Serg. (Pa.) 369. These cases recognized and established the rule. laid down in McGill et al. v. Rowland, and give us a clear advantage in the weight of authority. Our authorities, we think, are at least "respectable," notwithstanding counsel say they have never met with any "respectable" authority laying down the rule that we claim. The decisions of the Supreme Courts of Pennsylvania and Maine are regarded by the profession as of great respectability.

The learned counsel of plaintiff in error assume that if the party were competent as a witness, the wife is not. They say "her exclusion depends on a different rule; a rule of policy to prevent any possible interference with the marital relation." In Littlefield v. Rice, 10 Metcalf's (Mass.) Reports, the wife who keeps her husband's books was held to be competent as a witness "for him, in a suit upon his book-account, to testify that she made the entries by his direction and in his presence."

There are other cases in which the wife may be a witness for the husband. The cases just cited in Pennsylvania are conclusive, as to her competency in a case like the one at bar.

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