
    [167] [*] WAMBAUGH against SCHENCK.
    IN BOWES.
    Trial of issue on death of the husband, by witnesses, without jury. Proof of absence from the State seven years, deemed sufficient.
    The test of a writ not conclusive evidence of commencement of a suit. Parol evidence admitted to specify the day.
    This was an action of dower, and issue taken on the death of the husband. The trial of this issue being by witnesses examined by the court, without the intervention of a jury, was of course at bar. On the trial it appeared that the husband of the demandant, Peter Wambaugh, left the country about seven years ago, last June or July, and there was no satisfactory evidence of his being alive since: but a vague report of the death of a man of his name, in the parts of Pennsylvania, where it was thought he went, had been circulated. The demandant, on this evidence, relied on the presumption raised by the act of Assembly, Pat. ®JpL, of death, in cases of persons absenting themselves from the State seven years, unless proof be made that they were alive within the time.
    
      Mr. Leake, for the tenant,
    first contended, that the issue in this case was on the demandant; that she was bound to prove the death of the husband. But,
    
      The Court said, proof being made, that he has absented himself from the State seven years, the statute attaching on this fact, raises the presumption of his death, which, however, may be rebutted by proof of his having been alive within the seven years.
    
      Mr. Leake, then contended that there was a deficiency in proof; that the fact of the death of the husband should be proved by two witnesses at least, for which he cited 3 Blac,. Com. 336, and 6 Com. Dig. Title Trial, B. 5. But,
    The Court said, that the fact of absence out of the [*] State, has been proved by two witnesses and more; that the presumption raised by law, was created by the statute.
    
      Mr. Leake, then insisted, that the seven years had not been made out; that the writ in this action was sued out in May Term, 1806; and that according to the evidence, the seven years’ absence was not complete until June or July after.
    
      Mr. Maxwell, for the defendant,
    then offered to prove by the attorney in the cause, that although the writ was tested in May Term, yet that it was not actually sued out until the latter part of August; and cited Johnson v. Smith, 2 Bur. 950, as warranting the proceeding; to this
    
      Mr. Leake, objected, and said that the test of the writ being a matter of record, could not be contradicted by parol evidence; and that even accoi’ding to [168] the case in Bur. it ought to be pleaded.
   Kirkpatrick, C. J.

— Thought the objection a sound one, and that the testimony could not be received.

Rossell, J. — -Was of opinion, that the objection ought to be overruled and the testimony admitted.

Pennington, J.

— Said that he had understood the law to be settled, that whenever the actual time of suing out the writ became material, it might be shown in contradiction to the fictitious test of the writ: which for form sake, only had relation to the preceding terra, and that in the present case, the demandant had been under necessity of pleading it, it was not made necessary by the pleadings of the tenant.

[*] Mr. Leake. — If I had so plead, I should have plead very ignorantly.

Pennington, J. — I did not say it was necessary or proper, for you to plead in that manner; but I think the evidence admissible without pleading; the question arises collaterally on trial. — Objection overruled.

The attorney being sworn, proved satisfactorily that the writ was not sued out until the latter part of August, 1806.

Mr. Leake then contended, that our act of Assembly had no relation to dower, but was an abstract of the statute of 6 Ann, chap. 18, which only had relation to guardian, trustees, remainder-men, &c.

The court was of opinion that there was no similarity between the two acts; that the one was not founded on the other, or abstracted from it, and concurred in rendering

Judgment for the defendant.

Cited in Crosby v. Stone, 2 Penn 988; Updike Ex v. Ten Brock, 3 Vr. 105. 
      
       In 2d Bur. 962, Lord Mansfield says, The court will not endure that a mere form or fiction of law, introduced for the sake of justice, should work a wrong, contrary to the real truth and substance of the thing, and they have (for 150 years) uniformly held, and when it became material to distinguish, they would consider the day when the writ was taken out, as the substance, and the test as the form.
      
     