
    [Philadelphia,
    January, 12, 1824.]
    BABB against CLEMSON.
    IN ERROR.
    "Where the vendee wilfully alters a bill of sale, for the purpose of covering property from execution, scuh altered instrument is not evidence to go to the jury.
    If the owner continues in possession after an assignment goods is per se, unless thepassession is according to some condition or trust expressed in the assignment.
    Evidence of the declarations of the servant of a debtor who liad made an assignment of property, that he was hired by the debtor and was still in his employ about the property, made after the assignment, though not in the presence of the assignee, is good to show the assignment colourable.
    On a writ of error to the Court of Common Pleas of Chester county, and bills of exceptions to the admission of evidence, and to the opinion of the court in their charge to the jury, in this suit brought by Elizabeth Clemson, plaintiff below and defendant in error, against Sampson Babb, sheriff, of Chester county, plaintiff in error, the following appeared to be the case.
    This suit was brought to recover the value of certain property, mostly stock on a farm, with some few articles of household furniture, levied on by the defendant, on the 15th January, 1822, and sold under an execution issued on a judgment entered up by Joseph Boyd, against Benjamin Pusey, on the 24th December, 1831, but which the plaintiff, E. Clemson, claimed under an assignment from B. Pusey, dated the 31st December, 1821, of which the sheriff had received notice before the sale. This assignment was duly executed in the presence of two attesting witnesses, in consideration of a precedent debt of 1560 dollars due by B. Pusey to E, 
      
      Clemson, who was his wife’s sister. It was impeached by the defendant as fraudulent against creditors, and also as void because it had been altered, 400 bushels of lime and some geese having been interlined, after ita execution,and subsequently erased. These were claimed in the notice to the sheriff, but not in the present suit.
    By the evidence on behalf of the plaintiff it appeared that the assignment was delivered by B. Pusey to the plaintiff, on the evening of the day on which it was executed, and was accepted by her as payment of part of her debt: that he had no charge or controul over the property after the bill of sale was executed, it was in the possession of E. Clemsoñ, and she employed a man to take care of the property and cattle out of doors, who did so till the sheriff’s sale. This man (Peter) had lived with B. Pusey before, and she employed him when his time was out. She had lived there before and at the time of the assignment and continued there afterwards. The next day after the execution of the assignment, E. Clemson discovered that several articles (the lime, &c.j were forgotten, and told Mrs. Pusey \a set them down, and she did so: they were after-wards told it was improper, and E. Clemson said she would erase them. One of the attesting witnesses, called by the plaintiff, stated, that B. Pusey put the value on the articles: that for the most, part they remained after the assignment as they were: that he saw nothing more than that B. Pusey continued to occupy the house and make use of the articles in the house afterwards: the property remained on the premises till the sale by the sheriff. B. Pusey said that the creditors were coming to take the property away and he might as well let E. Clemson have part. This witness stated that the assignment was made to prevent the other creditors from taking the property: and that something was said about putting a low price on the articles for the purpose of covering all the goods. After this evidence the plaintiff offered the assignment, but the defendant objected tct its admission in evidence. The court however allowed it to be read and the defendant took an exception.
    The defendant gave in evidence, that the valuation of the goods was made by B. Pusey, his wife and E. Clemson, and it was made as low as possible so as to include it all in the amount of E. Clemson’s debt. _ After the assignment was executed it was offered by B. Pusey to E. Clemson, who laughingly refused it. B. Pusey then put it in his pocket book, and said it would prevent his creditors from taking any more of his property. None of the property was delivered to E. Clemson. B. Pusey continued in the house, and made use of the property: rode a horse, and killed one of the cattle mentioned in the assignment. It was further proved by a witness for the defendant, that when Peter, the hired man’s time was out, Mrs. Pusey requested E. Clemson to lend her money to pay him, which she was unable to do. Peter was employed in the ordinary business about the place. Stacey Kinsey, a witness for defendant, also stated, that he worked for B. Pusey, and heard him give orders to Peter, and he never heard E. Clemson direct him. He had hoard Peter and B. Pusey speak of the contract between them, when E. Clemson was not present.
    The plaintiff then objected to any further statement of this conversation by the witness: but the defendant insisted on asking the witness from what source he acquired any knowledge on the subject of Peter's being hired by D- PuSey, without then stating what that knowledge was. The court thereupon proposed to the witness the following question. “Have you any knowledge of a contract of hiring of Peter from having been present at sucli contract, or have you any such knowledge from conversation with or in the presence of E. Clemson, the plaintiff?” To this question the witness answered in the negative, and thereupon the court overruled the question proposed by the defendant, and the defendant took an exception.
    The defendant below requested the court to charge the jury:
    1. That it was necessary the paper of the 31st December, 1821, should have been delivered at the time of the execution in the presence of the subscribing witnesses.
    2. That an actual delivery of the property should have taken place at the time of the execution and delivery of the paper in question.
    And the court instructed the jury,
    1st. That it was not necessary the paper of the 31st December, •1821, should have been delivered atthe timeof signing, or inthepresence of the subscribing witnesses, that it might be signed at one time, and in the presence of one witness, and delivered at another, and not in the presence of the subscribing witnesses, and it would have effect from the delivery.
    2d. As to the second point, the law is clear that possession should accompany, and follow the assignment of personal chattels, or it is fraudulent and void as against creditors, but only such possession is required as the nature of the thing admits of. Goods shipped to a foreign port, possession is sufficiently changed by the delivery of the bill of lading. The possession of 20 tons of plaister of Paris sufficiently passes, by the vendee taking the actual care and charge of it, without removing a single stone. So of horses, cattle, &c., there possession is as much changed by the vendee going to the goods, as by carrying the goods to the vendee. But the possession should be exclusive and entire, the whole charge taken by the vendee and given up by the vendor; if possession be thus entirely charged and bona fide, the vendee becomes the true' owner, and may afterwards give or lend them to his sister, brother, or any other; it is then a question of fact for the jury, whether the actual possession was so changed, if it was, then the sale was not fraudulent and void; (here the court referred to the evidence on this point.)
    3d. On the third point the court refused to lay down the principle as contended for by the counsel, not perceiving that the evideuce at all warranted the appellation of fraudulent, and so instructed the jury.
    The defendant excepted to the opinion of the court.
    
      Edwards, for the plaintiff in error, now supported the errors assigned.
    1. The writing under which the plaintiff claimed ought not to have been received in evidence because the alteration in it by inserting the limo and geese without the knowledge of B. Pusey, after its execution rendered it void. It was proved that when the paper was signed by B. Pusey, these articles were not contained in it: it was incumbent therefore on the plaintiff to show his consent to the alteration, or else in point of law the instrument was destroyed. When a deed is altered in a point material by the plaintiff himself, or by any stranger without the privity of the obligee, be it by interlineation, addition, rasing, or by drawing of a pen through a line, or through the midst of any material word, the deed thereby becomes void. Pigot’s case, 11 Co. 27. The same rule applies to writings that are not deeds. An alteration of the date of a bill of exchange whereby the payment would be accelerated, avoids the instrument, and no action can be afterwards brought upon it, even by an innocent holder for a valuable consideration. Master v. Miller, 4 T. R. 320. So forgery is the fraudulent making or alteration of a writing to the prejudice of another man’s right. 4 Bl. Comm. 247. 2 Bl. Comm. 308. In Rex v. Ward, 2 Sir. 747. 2 Ld. Ray. 1461. the defendant was convicted of forging an indorsement on the back of a certificate of an order to charge the amount of a certain allum. So that writings not under seal are held equally sacred from alteration with specialties. It is another reason why the writing ought not to have been received i n evidence, that there was no proof of its delivery, by the subscribing witnesses.
    2. The second error is in the court’s not admitting the question proposed by the defendant to Stacey Kinsey, namely, where he obtained his knowledge on the subject of the hiring of Peter. Perhaps he derived his knowledge from E. Clemson herself; and if so it was clearly evidence. If it was a confession by Peter after the contract of hiring was made, it was not hearsay evidence, but an admission of the fact in what capacity he acted. This was the best evidence the nature of the case admitted.
    3. The charge of the court was wrong. They ought to have charged the jury that the mixed possession which was proved was a legal fraud. The possession of property assigned to a creditor ought to follow-and accompany the instrument. It was settled in Clow v. Woods, 5 Serg. § Rawle, 275, that where this is not done the transaction is fraudulent and a judgment creditor may take the goods in execution.
    4. The writ issued before the course of action accrued as stated in the declaration. This appears by the docket entry and by the praecipe. Gordon v. Kennedy, 2 Binn. 287. Charles v. Delpeux, 2 Brown, 319. Skinner v. Robinson, 2 Brown, 357. 1 Caines, 69. 1 iS'erg. # Raiole, 202, are authorities to show that this objection is fatal.
    
      Dillingham and Chauncey, contra.
    1. The execution of the bill of sale having been proved it was proper it should go to the jury. It was immaterial whether it was delivered at the time of execution or afterwards. The modern practice is, in cases of rasure, interlineation, &c. to leave them to the jury. But still it is a question whether the court ought to have charged that this instrument was void in consequence of the interlineation. This question is to be determined by considering the nature of the' instrument. It was not a formal bill of sale. It was no more than an inventory of the goods and receipt for the value. It was merely evidence of an executed contract. The evidence is that on the day after the receipt, some of the articles which had been valued were' ascertained to have been omitted. They were inserted at the request of E. Clemson, but afterwards erased on a supposition that their insertion was improper. It does not appear that the insertion was made without B. Pusey s consent. Either he consented, or on being informed of what had been done, objected and the articles were struck out. In any of these cases the writings remained good. The rule that writings are avoided by alteration is confined to contracts executory. The cancelling of a deed for land does not divest the estate which had passed by the deed. . 9 Mass; Rep. 307. It has never yet been decided that a writing which is only evidence of an executed contract is so entirely avoided by an alteration of it, that it cannot go to the jury; or if it does go that the jury should be charged that it is void. The receipt at the' foot of the paper was never altered, and at the trial the paper was in the same state as when executed.
    2. As to the question put to Stacey Kinsey. It related to a ■contract of hiring between B. Pusey and the servant Peter. The only legal evidence of that to affect a third person would be the' oath of a person who was present at the contract. Pusey and Peter were both legal witnesses and might have been produced on the trial.
    3. As to the possession the court charged fairly, that change of possession was necessary, and left that fact to the jury.
    The court relieved the counsel from speaking to the fourth point.
   The opinion of the court was delivered by

Duncan, J

This question respects the validity of a sale oí certain goods by Benjamin Pusey to his sister-in-law Elizabeth Clemson, plaintiff below, defendant in error, who claims them against a levy made by the plaintiff in error, the sheriff of Chester' county on an execution of Joseph Boyd, against Benjamin Puseip subsequent to the date of the sale, but on a judgment previously obtained. After a judgment has been obtained, a conveyance by the defendant of his- goods and chattels, has always been looked on as wearing a deep complexion of fraud, and as subjecting to a very jealous examination, the conduct both of alienor and alienee, and such acts are void both at common law, and under the statute of Elizabeth, if done without consideration, or, though given on due' consideration, if the possession remain with the debtor; whereby he is enabled to deceive the world by holding out a false appearance of property, and that was Twynes’ case, 3 Rep. 85. The issue between the parties was, whether the assignment by Pusey to Miss Clemson, was valid, or was fraudulent according to the policy of the law. We are not discussing a question of contract executed or executory between the parties to the contract, but whether according to that policy, there was a contract 'binding on Boyd the judgment creditor; and Our attention is first called to the written instrument of the 31st December; 1821, denominated in the bill of exceptions, a bill of sale. There was no doubt but that two articles, the lime and the geese, were interlined after the instrument was signed, and witnessed; and delivered, and without any assent by Pusey, or subsequent ratification, and done by the assignee, who claimed the lime under the bill of sale, after it had been levied on by the sheriff; though it is not now claimed, or suit brought for it. Now, was the paper evidence to go to the jury; of the contract between Pusey and Miss Clenisonl It is not, whether the original contract was avoided by the falsification of the evidence of it; but whether, where a party to a written instrument wilfully alters it, for the purpose of covering property from execution, that instrument so altered, can be used as a medium of evidence. It is not an alteration by a stranger, nor an immaterial one. by the party, nor a question of interlineation to be left to a jury to decide, whether made before or after the signature, but where the plaintiff offering it makes it part of her own case, that it was wilfully done for her. The defendant, after the delivery, told the debtor’s wife, there were two or three things forgot, and desired her to set them down, which she did, and being afterwards informed, this was improper, the plaintiff said she would erase them. Formerly, the judges, if a deed was rased or interlined, declared it to be void; but in modern times, it is referred to' the jury. But where it is part of the plaintiff’s own case, that the deed was altered, fraudulently altered, as I understand the principles of the law of evidence, such altered or falsified paper Cannot be received in evidence. For when the assignee added to it, it was a new making, and framing the contract, or the evidence of it, and it is quite immaterial, whether the action is founded on the written evidence, or it is exhibited as evidence of the contract. An interest that would pass without deed, would pass though the deed was afterwards interlined, or altered; for the interest thereby vested doefe not return back again, for the deed is only evidence that it did pass, but by statute it is necessary in many cases, to show the writing under the hand of the party, and where such writing is necessary to support the claim, the party claiming must make it out by the very perfect and unaltered writing on which the contract was founded; otherwise, where such writing is considered not as a formal instrument, under which title passes, but as mere general proof of an agreement. 2 Roll. ab. 29. In Lofft’s Gilb. 650, in the ease of the altered deed, it is put on the rational ground, that the rasure does not destroy the estate, though it destroys the deed. Cro. Car. 399. The ease cited from Massachusetts can only be supported on this principle. There the exception was not to the evidence, but whether the alteration revested the estate; and one ground of the decision was, that the alteration was done innocently, and tono injurious purpose. ■ The law of evidence rests on principles, and has accommodated, and is accommodating itself to the changing state of society. We do not now, said lord Mansfield, sit here to take our rules of evidence from Siderfin and Keble. Anciently almost all writings were by deed, and it was doubted down to the King v. Ward, 13 G. 1, 2 Ld. Ray. 1464. 2 Stra. 147, whether a forgery could be committed of any other writing than a deed, will, or record, and there the forgery of a mere informal order respecting a credit for a quantity of allum, was determined to be indictable at common law as a forgery; because the nature of the offence was the same, et ubi eadem est ratio, eadem est leg. The fraudulent alteration of this paper, give it what denomination you will, is a forgery punishable at common law. There is no magic in a name. Be it a receipt, a bill of sale, assignment, written agreement; call it what you will, it is a writing, the fraudulent alteration of which is a forgery, falling within the exact definition of the officer. I by no means intend to consider those ladies as criminals, or arraign them as culprits on the charge of forgery. Their conduct has every thing to palliate it. No doubt, they never imagined they were committing an act of moral turpitude. The very candid and simple relation of Mrs. Pusey acquits them of all that. They thought it no more harm to mend this instrument, than to mend a ruffle. But courtesy to the sex, indulgence to their habits and course of life, mingling little in affairs of this kind, and the real simplicity which marks this alteration must not make us forget the civil rights of others; and though we may acquit them of crime, yet it does not follow that any aid should' be derived from the paper. It is not an unreasonable infliction to say, though the alteration of this paper does not destroy the sale, does not depriveyou of an opportunity of proving the sale aliunde, yet having falsified, you have destroyed It, you have suffocated it. For venial as it may be in foro conscientise, it is so far fraudulent, that it ceases to exist for any legal purit is of all credit. we it the mild appellation of pious fraud, still it is, by the policy of the law, fraudulent, and attended with all the noxious and vitiating qualities of fraud, as it is said of the juramentum scriptum est indivisibile, et non est admittendum in parte verum et in parte falsum; falsum in uno, falsum in omnibus. You shall not recover through the medium of a falsified paper. Prove an honest case in any other way than by a dishonest paper. This, I think, may be done, laying aside the paper; for where there is a subscribing witness to a receipt, whom you cannot produce, other evidence may be given of payment by witnesses. Haine v. Hechert, 6 Binn. 16. So here, the fact of sale may be proved by other witnesses. If the subscribing witnesses were dead, proving their hand-writing, the falsified instrument would be evidence of the sale of the lime. This would be a consequence and amost unjust one. All written contracts, whether by deed or not, are intended to be standing evidence against the parties entering into them, and so much of the business of the world depends on this kind of evidence, that it should be fortified by every legal sanction, and therefore it is, that all instruments altered in a material part are thereby avoided. There is a most beneficial effect resulting from this, that persons having the custody of these will not alter them for fear of losing their security, and the reason applies as well to instruments, intended as standing evidences of the contract, as instruments which are depended on as the sole security; and the true reason is, that it would be extremely dangerous to permit the party to recover by the medium of written evidence as it originally stood, after an attempt to commit a fraud by covering property from execution not included in the written contract. The policy ofthelawis, thataman, (nor woman either,) shall not take the chance of committing a fraud, and when the fraud is detected, use the instrument, as if he never had altered it. In that case the law intervenes and avoids the falsified instrument or writing. If it avoids it, it does not do so partially, but for every legal purpose, and in reason there can be no difference, whether it is made use of as an instrument of title, or evidence of it; both are within the same reason, and ought to be within the same law. I have not been able to find a decision in specie the same, but in reason, and by analogy to the principles of evidence, it appears to me clear as any axiom in law, that the writing is defunct, and ought not to have been received in evidence, and I think also the evidence of Kinsey as to Peter, (whom Mr. Pusey testified, Miss Clemson had hired to take care of the cattle, &e.) ought to have been received. It was evidence in an important'point, to prove the possession of 'Miss Clemson, by means of the hiring of Peter, but the question respected the actual, visible, notorious possession. It then became undoubted and very important evidence to show how the matter really was, to prove that while Peter was employed; he and Pusey both declared that he was the hireling of Pusey; and when the question was put from what source you had knowledge, the court took the witness out of the hands of the counsel, and put certain prefatory questions, and restrained the witness from giving any evidence of any conversation between Peter and Pusey as to a hiring, unless it was in the presence of Miss Clemson, or proof of an original hiring. This-was not mere hearsay evidence; it was the best evidence the nature of the thing was capable of; the declaration of the master, and of the servant at the time they were employed about the property. It was not to charge Miss Clemson, nor to destroy a contract by a conversation between others; but the declaration of persons in possession, in what character they were in possession. It was the ?'esgesta itself. It was very proof of actual possession in Pusey. It destroyed the colourable possession of Miss Clemson by means of Peter, and showed the reality of the possession to be Pusey’s. Peter had before been in the employment of Pusey in the same way; he continued to act under his orders, was acting under his orders at the very time the witness spoke of. It was much stronger evidence to show the unaltered course of possession in Pusey than the evidence by Mrs. Pusey of a hiring by Miss Clemson was to show Ihe contrary. The declaration of a tenant in possession is constantly received, as to whom he held under; not as evidence of title, but as evidence of possession, and the character of the possession. I am, therefore, of opinion, that the witness should have been suffered to prove the conversation between Pusey and Peter about the hiring, and that he was then acting as the servant of Pusey.

The points on which the instruction of the court was requested by the defendant in error, are not stated with precision. These are more abstract questions of law, than predicated on any statement of the facts given in evidence. This is always wrong, nor was the court bound to answer them in that form. The answer to the first point was correct. It was not necessary that the paper should be delivered to the assignee in the presence of the subscribing witnesses. It was not a deed taking effect from delivery. The witnesses do not state it as a deed delivered in their presence. She had possession of it by the delivery of Pusey.

The 2d was an abstract proposition which the court properly answered in the affirmative. Had the question been put to the court in this form, whether the possession, as proved by the defendant was sufficient to vest property in Miss Clemson, against the creditors of B. Pusey, the answer should have been, I apprehend, that it was not. There was no contested fact to be submitted to the jury; nothing from which a continued legal possession could be inferred. There was no real change of possession. Every thing continued in the same state occupied and used in the same way, and by the same persons, after as before the sale. Miss Clemson was an inmate in the house before: she continued so after the sale. Peter was a hireling in the family before, he continued so after. All things remained in statu quo. No one coming to deal with Pusey could possibly discern any alteration. Every act of ownership which the the property was susceptible of, went on in the old way. The possession of Peter was entirely colourable. He just did as he had done before; acted by order and under the direction of Pusey. The sale was inconsistent with a continuing possession in Pusey. An absolute unconditional assignment of goods, the former owner continuing in possession of them, is not barely evidence of fraud, but it is fraud itself, unless where the possession is consistent with some condition or trust expressed in tire assignment, and unless the court are prepared to unsay and to unsettle all that was said and settled in Clow v. Woods, 5 Serg. fy Rawle, 275, this transaction was fraudulent and void as to creditors. That case was very fully argued, and the judgment given on much deliberation We adopted no new principle, set up no new doctrine, but allowed a stream of authority, which established the law, that an unconditional sale, where the possession does not accompany and follow the assignment, is, with respect to creditors, on a sound construction of the statute of Elizabeth, a fraud, and should be so declared by the court. I now speak of things capable of delivery. There cannot be a concurrent possession in the assignor and assignee; it must be exclusive, or it is deemed colourable and fraudulent. To defeat the execution, there must have been a bona fide substantial change of possession. It is mere mockery to put in another person to keep possession jointly with the former owner. A concurrent possession with the assignor is colourable. I do not put the case on the ground of actual fraud and want of consideration. I presume the debt of Miss Clemson to be a just one, which her brother-in-law ought in moral duty to have secured, and in point of honour to have preferred. But on the policy of the law, looking to general consequences, without turning to the right or to the left, as particular cases of hardships may occur, the plaintiff’s own case showed a visible possession to all the world, remaining in the debtor, just as it did before the assignment. There was no weighing of evidence, no inferential circumstances, nothing from which a jury could draw a different conclusion.

The court erred in the answer to the 3d proposition of the defendant in error, as I have before stated. The alteration rendered the writing null and void to all purposes. Master v. Miller, 4 T. R. 424, was adopted by this court in the Bank of the U. States v. Russel & Boone, 3 Yeates, 391, and there it was determined, that the alteration of a promissory note by the payee, whereby the time of payment was retarded, avoided the note in the hand of an innocent indorsee.

The 4th specified error does not appear on the record, and the court will not review evidence of a fact to reverse a judgment. The declaration lays the cause of action as between the teste and return of the writ. The day when the writ issued is no part of the record. The memorandum of the day when the writ was taken out on the issuing docket, might be evidence of the fact in a case requiring proof; as of the day when a writ issued to save the statute of limitations, on a replication of assumpsit infra sex annos; or it might be shown on the trial as evidence that the defendant had shown a cause of action subsequent to its commencement when the jury would be directed, to find against plaintiff, or he become non-suit. Though in the formal making up of a record, the date of the time of actually issuing process is never inserted, because it is no part of the record, and the prsecipe is not, to this purpose, a part of the record, courts will use it to advance justice by amending writs agreeably to the prsecipe, but never to defeat a judgment. But this very point was settled in the court of errors and appeals. Skinner v. Robeson. And the verdict would cure it, for it could not be found for the plaintiff but on evidence of a causé of action, a taking before the action brought. 4 Mass. 264. But for the other caus e, the judgment is reversed, and a venire facias de novo awarded.

Judgment reversed, and a venire facias de novo awarded.  