
    Norwood vers. Fairservice.
    1765.
    Whether an alleged Alteration in a Deed was made before or after its Execution, is a Question of
    Faft for the Jury.
    In Debt for Rent upon an Indenture, the Defendant
    may, under the Plea of Non dimisit, give in Evidence the Counterpart of the Indenture which reserves a different Rent.
    NORWOOD brought his Action against Fair-service on an Indenture, for that Fairservice covenanted to pay £13., 6., 8. per Quarter for Rent of a Sand-Bank, and had not paid, &c. Defendant pleads, Non dimisit. The Plaintiff produces in Evidence, to support his Demand, one Part of the Indenture figned by the Defendant, wherein the Demise is acknowledged, and Payment of the above Sumper Quarter is covenanted.
    
      Mr. Auchmuty, for the Defendant,
    
    offered to give in Evidence to defeat the Demand, the other Part of the Indenture, signed by Norwood, wherein he demises as aforesaid, for the same Sum per Year.
    
      Mr. Fitch, for Plaintiff,
    
    then suggested a Fraud in the Defendant, from whence this Difference arose, and prayed Judgment, whether this Indenture produced by Defendant should go in Evidence to the Jury.
    
      Mr. Auchmuty.
    
    I take it, the Gentleman is too early in his Objection; for Fraud or no Fraud shall be try’d by the Jury, and not by the Court. It is a plain Matter of Fact, of which the Jury are the sole Judges. Besides, of what Advantage will it be for the Court to determine this Matter? The Jury, after all, will determine whether this Variance was made before, or since the Execution of this Deed; and will give what Credit they please to it; so that for this Court to pass their Judgment will avail Nothing. Neither do I think the Court have any Right to determine this Matter; for ’twill be abridging the Priviledges of the Subject, to settle a Point which wholly lies with the Jury to determine.
    In Answer to which, it was urged by Messrs. Gridley & Fitch, that it had always been the Custom of this Court to determine in such Cases. To which the Court agreed; and Justice Lynde said that he knew a similar Case of one Lanson’s, in Middlesex: But the Chief Justice answered, that he had always doubted in those Cases, but whenever they arose, the Court always affirmed the constant Practice, and so he was silent.
    ’Twas then further urged by the Plaintiff’s Council, that this Practice was well founded, and the Reason of it was this, that Nothing should go to a Jury which would only tend to deceive and inveigle them; and that therefore when a Piece of Evidence was offered, on the Face of which Fraud appeared, the Court rejected the Evidence, as ’twould only tend to mislead. And, as to what Mr. Auchmuty had said, that the Court’s Opinion would be of no Effect, ’twas answered, that, if the Court, upon Inspection, were of Opinion that the Indenture had been fraudulently altered, it was then not Norwood’s Deed — therefore no Evidence. For Courts will never admit that to go in as Evidence, which, prima Facie, they judge a Fraud; and the Jury can’t judge of that which is not admitted to go to them.
    
      
      Just. Oliver.
    
    
      This properly belongs to the Jury. I am for admitting it to go in.
    
      Just. Cushing.
    
    The Jury is fole Judge of this; they must give what Credit they please.
    
      Justice Lynde.
    
    As the Pratice of this Court has always been otherwise I am for viewing it.
    
      Ch. Justice.
    
    I know the Custom has been otherwise, but, for my Part, I think 'tis Time it was altered — am for admitting it. ()
    Another Objection was then made on Behalf of the Plaintiff, against: this Counterpart of the Indenture being Evidence: For that the Indenture declared on was the Defendant’s Deed — had been produced, and, by being admitted, the Defendant was estopped to fay the contrary; that, if the Counterpart produced by the Defendant should be admitted, it would prove Nothing against: his own Deed.
    
      Mr. Auchmuty.
    
    It has been said, we have admitted the Indenture produced was our Deed. So far from admitting Anything, we have denied their whole Declaration; for we have pleaded, Non dimisit. We could not possibly have been farther from admitting this Deed than by pleading as we have done. Besides, our Part and theirs make but one Instrument; for in all the Books ’tis, Hœc Indentura. They have declared on a certain Indenture, made between the Plaintiff and Defendant, which is not complete without our Part, for they have produced only one Part, and the other lays with us to produce.
    
      Mr. Gridley.
    
    We have declared, that, by one Part thereof, signed by the Defendant, he, in Consideration that we had demised, &c., he covenanted, &c. He has pleaded, Non dimisit. To prove our Allegation, we have produced his Deed; and he is estopped to fay the contrary, and offer in Evidence an Inssrument that he fays was signed by us. — What can it prove ? That we did not demise ? That is the Issue. And here is his Deed in which he acknowledges that we did demise, and that he covenanted as we have declared. ’Tis absurd to offer this Paper to defeat his own Deed. It can’t be done.
    Oliver, Just.
    
    I think it can’t be admitted. No
    
      Cushing, Just.
    
    He is estopped, I think. No
    
    
      Lynde, Just.
    
    I am very far from being fo clear in it.
    N. B. No Authorities were produced, and the Council on each Side acknowledged the Points were unexpectedly started.
    
      
      
        Sed vid. 4 Bac. Abr. 84.
    
    
      
      (1) See Ely v. Ely, 6 Gray, 442; 1 Smith’s Lead. Cas. (Hare & Wallace’s notes) 961, 2.
    
   The Chief Justice,

who had been absent the whole Argument of this last Objection, came into Court soon after this last Determination; upon which Mr. auchmuty moved for his Opinion : But Mr. Gridley objected, his Honour not having heard the Argument, and the Ch. Justice said, he the rather declined giving his Opinion, as there was but 4 Judges present; and two being against admitting it, his Opinion would avail Nothing. But, on the State of the Cafe by his Brethren, he seemed inclined to admit the Counterpart of the Indenture to go in as Evidence.

Mr. Auchmuty then ordered a Review to be minuted, and said, if he was wrong now, he never was right in his Life.

At the next Trial, which I did not hear, the Court admitted the Counterpart of the Indenture to go in, as Mr. Auchmuty informed me. () 
      
      (2) The first judgment was reverted on the review.
     