Allen against M'Masters, 3 Watts 181

Per Curiam. The fraud, if any, was practised on the grantee, who purchased for himself and the heirs of his blood, and not on the grantor, to whom it was indifferent who got the estate, provided he got the price of it. It was indifferent therefore what he knew or thought in regard to the insertion of the name of the grantee’s wife; and the evidence, thus offered in the first proposition, was so far properly rejected.

But proof of the quarter whence the consideration moved, might be proper in connexion with circumstances, and might undoubtedly be made by evidence, competent in other respects, of declarations in the presence of his wife without contradiction from her. Part of the evidence proposed by the second offer was properly rejected : because the ignorance of a grantee will not impede the operation of a conveyance, his assent, being presumed; and because it does not follow in the present instance that there may-not have been a gift to Mrs Jones without her being informed of it. ' But the fact that E.

Jones, the other grantee who paid tire purchase money, did not know that her name was inserted, would be a competent fact if proved by evidénce unexceptionable in other respects. The evidence proposed in the third offer ought to have been received, as the declarations of Mrs Jones against her own interest were undoubtedly admissible. Without saying that the evidence contained in the fourth proposition would have made out a case of election, we think it ought to have gone to the jury.

It is impossible to determine the effect of evidence without having it spread before those who are to judge of it; and this the offering party is frequently unable to do in the first instance, by reason of the unwillingness of witnesses to disclose what they will testify: and it is dangerous to decide a cause on abstract propositions, rather than on facts proved and evidence laid before the jury, whose form and pressure may be perceived and accurately determined.

In doubtful cases it is certainly the preferable course to admit the proof, and to judge of its effect afterwards; and this course ought to have been pursued here. Judgment reversed, and a venire de novo awarded.