#### *Harrison v. Middleton.

July Term, 1854,

Lewisburg.

(Absent Allen, P.)

1. Unlawful Detainer—Removal of Cause.—If a-case of unlawful detainer has been pending in a County court for more than twelve months without a final decision, it may be removed, on motion, to the Circuit court.

2. Civil Actions—Removal of Cause.*—All civil causes of which the Circuit court has either original or appellate jurisdiction, may be removed from the County to the Circuit court, upon motion, after they have been pending in the County court for one year.

3. Unlawful Detainer—Removed—Order of Hearing.— An unlawful detainer case removed to the Circuit court is properly placed on the docket at the head of the civil causes in the court.

4. Evidence—Witnesses—Refreshing themory—Use of Paper.†—A witness may refresh his memory by reference to a paper, whether an original or a copy, and whether written by himself or another; but he must then speak from his own recollection thus refreshed.

5. Same—Same—Surveyors—Use of Diagram.‡—But a surveyor who made a survey from a diagram handed him by the plaintiff, and which he has in court, may refer for the courses and distances to the diagram, though he may not be able to remember them independent of the diagram. The diagram is itself evidence, and he may point out on it what lines he ran.

6. Same—Same—Same—Extract of Field Notes.—An extract or copy taken by a surveyor from his field notes, is not evidence; and he can only use it to refresh his memory; and must then speak from his recollection.

7. Same—Same—Interest—Case at Bar.—A witness is offered to be introduced, who is objected to as being interested, and proof *aliunde*of his interest is introduced. 1-Ie is then examined by the party offering him, on his *voir dire*to show that he has no interest, and this is objected toby the other party; but before he is sworn in chief, a deed is produced which shows he has no interest. If it was error to examine him on his *voir dire*it was cured by the introduction of the proof of his want of interest, before he was sworn in chief.

8. Landlord and Tenant—Agreement to Surrender Possession When Desired—Effect.—An agreement under seal by a tenant that he' will surrender possession whenever a purchaser from the landlord requires it, constitutes him a tenant at will or at sufferance; and he is not entitled to six months’ notice to quit.

9. Same—Tenant Holding Adversely—Right to Notice of Suit,—If a tenant claims to hold adversely to his landlord, he is not entitled to notice.

*10. Same —Unlawful Detainer — Who Should Bring Suit.§—A landlord sells land in possession of his tenant, by agreement under seal, and the tenant refuses to deliver possession; the landlord is the proper party to institute a proceeding of unlawful detainer, to obtain possession.

*267a i. Evidence—Deeds Collaterally Introduced— How Non-execution Hay Be Shown.—Xí a deed of a defendant is introduced collaterally upon the trial, as evidence, he may show that it is not Ms deed, without making- oath to the fact: And for this purpose may introduce a subscribing witness to it, to prove that it was misread to the defendant.

12. Same- Proof That Deed Misunderstood -Admissibility—Case at Bar.ǁ—Proof that, the deed when read was understood in a very materia) respect as different from what it is, may tend to show that it. was misread, and therefore is competent evidence. But if the deed was correctly read, the misunderstanding of it by a party cannot affect its validity as a deed.

This was a writ of unlawful detainer brought in the county of Jackson, by Henry O. Middleton against Josiah Harrison, to recover possession of a tract of seven thousand nine hundred and twenty-three acres of land. The case was docketed in the County court of Jackson in June 1847, and was continued on the docket of that court without a trial until August 1848, when the court being about to adjourn, on the motion of the plaintiff, it was ordered that the case be removed to the Circuit court of Jackson county. And in September of the same year, the. plaintiff produced in that court the original papers, and the orders made in the cause, and on his motion it was docketed, and was placed at the head of the civil causes on the docket.

At the August term 1850 of the Circuit court, when the cause was called, the defendant by his counsel, moved the court to strike it from the docket, on the ground that it was not one of the cases contemplated by the act of March 28th, 1843. Sess. Acts 1842-43, ch. 9. But the motion was overruled by the court: And he excepted. The defendant then moved the court to place the cause on what he insisted was its proper place on the docket, viz: only before such cases as had been brought in that court after the cause had been docketed there. But the court overruled, the motion, because the case occupied the place on the ^docket which it had occupied ever since it had come into the court; and had priority over all civil causes in the County court, and was entitled to the same priority in the Circuit court that it had in that court. And the defendant again excepted.

On the trial of the cause the plaintiff introduced in evidence an agreement between himself and the defendant, bearing date the 22nd of February 1847, in relation to the land in controversy. This agreement recited that Harrison lived on a tract of land of seven thousand nine hundred and twenty-three acres, patented to Thomas A. Taylor, under Taylor’s representatives, as tenant; that Middleton had become the owner of the tract, and had sold it, and wished immediate possession: And then Harrison agreed to surrender the plantation and houses by the 10th of April 1847, and to surrender- the farm at any time that William Fisher (the purchaser from the said Middleton) may think proper to take possession. And in consideration of Harrison’s agreeing to give up as aforesaid, Middleton agreed to refer it to arbitrators to say what Harrison should be allowed for his improvements beyond the use of the plantation for the time he had enjoyed it. And it was agreed that on signing that agreement, all controversy between the parties was to be at an end; and that Harrison was to give up to Middleton all claims and leases theretofore set up by him. The agreement was under seal and attested by three witnesses, of whom Alexander Harrison was one. The plaintiff also introduced the patent under which he claimed, which was a grant in 1786 to Thomas A. Taylor. He then called a witness, who stated that some years previous to the trial he survej'ed two or three of the lines of the survey on which the defendant Harrison lived. That when he ran these lines he had no authentic document to run them by; and only had a paper with a diagram of the seven thousand nine ^hundred and twenty-three acre tract, which paper had an endorsement on it in the handwriting of the plaintiff, stating that it was the tract on which defendant lived; and which diagram was made by the plaintiff. To this diagram the witness referred for courses and distances, and admitted that he did not remember how far he had run or what courses he had run, without reference to said paper, and did not remember either course or distance independent of the paper. To the witness refreshing his memory from said paper, the defendant objected, which objection was overruled by the court; and the witness often referred to the paper to refresh his memory; the court directing the witness not to state anything set out in the paper; but only to state what acts he did in running the lines aforesaid, and what he found on the ground. To this the defendant again excepted.

The same witness, in order to answer *268other questions propounded to him by the plaintiff, referred to a memorandum made by himself but two days before the trial, copied by him from his field notes of the survey before spoken of; the said field notes being then at his home; but he did not pretend to say that he recollected the courses or distances deposed to from said memorandum independent thereof. This evidence was also objected to by the defendant, because the original field notes from which the copy was taken, were not produced: But this objection was also overruled; and the witness was permitted to refer to said paper to refresh his recollection of the running of the lines done by him. And to this the defendant again excepted.

In the further progress of the trial William Risher was offered as a witness, and was objected to by the defendant; who offered the agreement between the plaintiff and the defendant, before mentioned, to prove his interest. This agreement stated that the land in controversj' had been sold by the plaintiff to Risher. *The plaintiff then proposed to examine Risher on his voir dire, to show that the agreement for the sale to him had been rescinded; and that he had no interest in the controversy. To this the defendant .objected, because he had shown the interest of the witness otherwise than by his own oath. But the objection was overruled; and the witness was sworn on his voir dire, and stated that he had no interest, because he and the plaintiff had, by a contract made on the 5th of August 1847, rescinded the previous contract between them: And this contract of the 5th of August was produced, and provided especially for the rescission of the previous contract for the sale of the land in the possession of the defendant. To this the defendant again excepted. This witness being sworn in chief, stated that previous to his purchase from the plaintiff he had heard the defendant say that he had no title to the soil on which he lived, and did not claim the land. And that in the spring of 1847 he was with the defendant, but not on or near .the land, and asked him if he would give up its possession, to which the defendant replied that he would not.

In the further progress of the trial the defendant offered Alexander Harrison as a witness. He was a subscribing witness to the agreement aforesaid of the 22d of Rebruary 1847, between the plaintiff and defendant, and had . been previously sworn and examined as to that fact by the plaintiff. This witness was offered by the defendant to prove that at the time of the execution of that agreement, both the witness and the defendant, who was the father of the witness, understood said paper, which is in the handwriting of the plaintiff, as referring the title to the land to the arbitrators therein named; and that the witness was present when it was read to the defendant; and that both the witness and the defendant did not understand or believe that the said paper made the defendant the tenant *of the plaintiff, nor did they know that such a thing was in the paper. And further that both the witness and the defendant understood said paper as it was read to them, as simply referring to the arbitrators the question of right to the land; and not that the defendant had thereby given up his right to it, and referred to the arbitrators the defendant’s title to compensation for his improvements to be set off against the rents of the land. To the admission of this evidence the plaintiff objected, and the court sustained the objection: And the defendant again excepted.

After the evidence in the cause had been introduced, the plaintiff moved for an instruction to the jury, “that if they believed all the evidence before them, the plaintiff had a right to maintain his suit at the time of its institution, and was entitled to recover in this action.” The court thereupon enquired whether the defendant intended to ask for any instructions; when he by his counsel objected to the instruction asked for by the plaintiff as being too broad and general, and asked the court to instruct the jury as follows:

1. That if they believed, from the evidence before them, that the defendant was, at the time of the institution of this suit, a tenant of the plaintiff, he was entitled to six months’ notice to quit before he could be turned out as unlawfully detaining the land under the contract of Rebruary 1847; and that the language of said contract, “to surrender the farm at any time that William Risher the purchaser of Middleton might think proper to take possession,” was not a certain time either in contemplation of law, or by the true interpretation of the contract.

2. If the jury were satisfied from the evidence before them, that before the institution of this suit, William Risher had purchased the, land in controversy of the plaintiff, and that such purchase, at the time this suit was instituted, was in force and not rescinded, *the plaintiff had no right to the possession of said land, and could not maintain this suit against the defendant.

There was a third instruction asked by the defendant substantially the same as the second.

The court refused to give the instruction asked for by the plaintiff, because it was too general, and because it called on the court to decide upon the sufficiency of the evidence before the jury; and declining to give the instructions asked for by the defendant in the form in which they were asked, proceeded to instruct the jury, “that if they believed from the evidence, that the defendant was at the time of the institution of this suit, a tenánt from year to year of the plaintiff, he was entitled to six months’ notice to quit; and he would not be liable to be turned out of possession of the land in controversy -without such notice: But if they should believe from the evidence, that the tenant was a tenant to the plaintiff, *269and that his time was to end at a certain time, that then no notice to quit would be necessary. The court further instructed the jury, that that part of the contract of the 22d of February 1847, which provides for the surrender of the farm at any time that William Fisher might think proper to take possession, would not necessarily create a tenancy from year to j'ear, and entitle the defendant to six months’ notice; and that if the evidence satisfied the jury that a demand of the possession had been made of the defendant by the said Fisher, and the defendant had refused to surrender such possession, it was not necessary to give the defendant six months’ notice before the institution of this suit.

The court further instructed the jury, that they must be satisfied from the evidence, before they could render a verdict for the plaintiff, that at the time of the institution of this suit the plaintiff had the right of possession to the premises in controversy in this suit, and that the contract of the 22d of February *1847, between the plaintiff and the defendant, did not in the opinion of the court, of itself furnish such evidence of a transfer of the right of possession from the plaintiff Middleton to Fisher, as to disable the plaintiff from maintaining this action in his own name, provided he has shown himself otherwise entitled to maintain it; or that the said contract so transferred to or vested in the said Fisher such right of possession as would have enabled him to maintain this action against the defendant. To the refusal of the court to give the instructions asked by him, and to the giving the instructions given by the court, the defendant excepted. There was then a verdict and judgment for the plaintiff; and on the application of the defendant, a supersedeas was awarded by this court.

Fisher, for the appellant, insisted:

1. That this was not a case which could be removed from the Count3' to the Circuit court. That the case having arisen before the 1st of July 1850, the question W’as to be determined under the act of March 28th, 1843, Sess. Acts of 1842-43, ch. 9, *l 4,*p. 17. That from the time when the constitution of 1829 went into operation, the County and Circuit courts had concurrent jurisdiction in chancery causes; and in 1838 the act was passed authorizing the removal of such causes from the Countyto the Circuit courts; but that this act only applied where the Circuit court had original jurisdiction of the subject matter involved in the cause. In March 1843 the act was passed allowing the removal of common law causes “upon the same terms and in the same manner in all respects as if it were a suit in equity;” and therefore this act must be construed to apply to the same class of cases as the act of February 1838; which were cases in which the Circuit court might have taken original jurisdiction. This construction was confirmed by the act of February *7th, 1849, Sess. Acts 1848-49, ch. 75, *\*1, p. 42, in relation to the removal of causes where the amount in controversy was under fifty dollars. And he insisted that this being indisputably a cause of which the Circuit court could not have taken original jurisdiction, it was therefore illegal^' removed to the Circuit court, and was therefore coram non judice, and all the proceedings were null and of no effect.

2. That although a case of unlawful detainer has priority in some cases, yet that there is no law which gives it this priority where the special court fails to meet, and the cause goes regularly on the docket of the Counti' court.

3. That the court erred in permitting the witness to refer to the diagram and a copy of his field notes, and to state facts from them, of which he could not speak of his own recollection. 1 Greenl. Evi. § 436; 1 Stark. Evi. 128; Doe ex dem. Church v. Perkins, 3 T. JR. 749.

4. That the court erred in swearing the witness Fisher to ascertain his want of interest, after the defendant had proved his interest. Vincent v. Huff’s lessee, 4 Serg. & Eawle 298; 2 Stark. Evi. 756; Offutt v. Twyman, 9 Dana’s E. 43.

5. That the court erred in excluding the evidence to prove that the agreement of the 27th February 1847 had been misread to the defendant. If the paper had been the foundation of an action of covenant, the evidence would have been admissible: And it was a fortiori admissible when the paper was offered collaterally. 1 Chitty’s Plead. 479; Van Valkenburgh v. Eouk, 12 John. E. 337; Taylor v. King, 6 Munf. 358. This last case is conclusive of the question. It decides that if a paper is misread to a party, he may plead non est factum.

6. That the court erred in refusing to give the instructions asked for by the defendant. The contract *under which the plaintiff claims bears date in February 1847; and that shows he had sold the land to Fisher. The proceeding was commenced in June of that year; and the contract with Fisher for the rescission of the sale bears date in August. Not the plaintiff but Fisher was entitled to the possession at the time this proceeding was commenced. Or if Fisher was not the party to bring this action, neither can the plaintiff do it. Fisher had purchased from him, and he claimed as purchaser from Taylor’s heirs under whom Harrison had been in possession for years. If Fisher’s purchase from the plaintiff did not authorize him to sue, neither could the plaintiff’s purchase from Taylor’s heirs, it not appearing that he had received a conveyance, entitle the plaintiff to sue.

But further: A tenant is entitled to six months’ notice to quit. It is true this law' does not apply to a tenancy which is to determine at a fixed period, nor where there is an express agreement to dispense with notice. But the only time fixed, and the only agreement, is when Fisher shall think *270proper to take possession; which is neither certain as to time, nor does it dispense with notice: Nor indeed is there satisfactory-proof of any demand of possession by Fisher.

7. That the instructions given by the court were improper and erroneous: Improper, because the instructions were not asked for by either party; and because it referred the construction of the written agreement to the jury, when it should have been construed by the court: And it was erroneous, in so far as it varied from the instruction asked for by the defendant.

Price, for the appellee:

The first point made by the appellant’s counsel must depend upon the construction of the act of March 28th, 1843. That act says, “Whenever any civil ^action in a court of law shall have been, or shall hereafter be, pending in a county court for the space of one year without a final decision thereof having been made, it shall be lawful,” &c. Is this a civil action? • If it is, and who doubts it, it is embraced within the terms of the law. It is equally embraced within the spirit and object of the act. The object is to obviate the delays of the county court. It is true the act refers to the act of 1838, but that relates to the time and manner of removing the cause. The object of the statute and its language apply to all cases in which the Circuit court has either original or appellate jurisdiction.

Upon the second point made by the appellant’s counsel, the court allowed the witness to refer to the papers to refresh his memory, but he was only to state what he then remembered. And this seems to be the settled rule on the subject. 1 Greenl. Fvi. $ 436. This author says, it is not necessary that the paper referred to should have been written by the witness, or should be an original paper. It matters little how the memory is refreshed; but the witness is to speak from his then recollection.

As to the competency of the witness Fisher: It was a question before the court; and, not only his competency was shown by the evidence, but by the contract for the rescission of his purchase.

Upon the fifil point made by the counsel for the appellant, it is to be observed that the evidence was not offered to prove that the agreement was not correctly read, but that it was not correctly understood. The design of this evidence was to invalidate the deed; and if it was not sufficient for that purpose, it was not admissible.

But further: The evidence, if competent, was not admissible without the affidavit of the, defendant that *the paper was not his deed. The court is referred to 3 Bac. Abr. title Fraud, letter A, p. 294-95.

Upon the instructions given or refused, it is enough to say that the objection that the court should have construed the agreement is not well taken, as the court does in fact construe it in the instruction given. That this was not a tenancy from year to year, so that the law in relation to notice does not apply; and there was in fact a positive agreement to give up the premises whenever required by Fisher, which of course dispensed with notice. As to Fisher’s right, his was a mere executory contract, giving him neither title or right of possession, which still remained in Middleton; and it was for him to enforce it, that he might execute his contract with Fisher.

*

Civil Actions in County Court—Removal after Pending Twelve Months—The principal case holds that all civil causes (of which unlawful detainer is one) of which the circuit court has either original or appellate jurisdiction, may be removed from the county to the circuit court, upon motion, after they have been pending in the county court for one year. For the above proposition the principal case is cited and approved in the following cases: Hale v. Burwell, 2 P. & H. 610; Kincheloe v. Tracewells, 11 Gratt. 598; Gas Co. v. Wheeling, 7 W. Va. 25. See generally, monographic *note*on “Unlawful Detainer” appended to Dobson v. Culpepper, 23 Gratt. 352.

†

Evldence—Witnesses—Refreshing themory—Use of Paper.—For the proposition that a witness may refresh his memory by reference to a paper, whether an original or a copy, and whether written by himself or another; but he must then speak from his own recollection thus refreshed, the principal case is cited and followed in Vinal v. Gilman, 21 W. Va. 307.

‡

Same—Same—Use of Diagram Made by Witness.— For the proposition that a map or a diagram made by a witness, and shown by him to be correct, may be given in evidence and shown to the jury for their consideration, see in accord with the principal case, Poling v. Ohio River R. Co., 38 W. Va. 645, 18 S. E. Rep. 782.

§

 Unlawful Detainer—Who Should Bring Action.—In Hawkins v. Wilson, 1 W. Va. 121, where the vendee in an executory contract for the purchase of land brought unlawful detainer against the vendor for the possession of the land, the court said; “In *Middleton v. Harrison, 11 Gratt.,*it was held that ‘a landlord who sells land, in the possession of his tenant, by agreement under seal, and the tenant refuses to deliver possession) the landlord is the proper party to institute a proceeding of unlawful detainer to obtain possession.’ This affirms the right of the vendor, in an executory contract for the sale of land, to bring the suit to obtain the possession. And the inference would seem fair that the converse of the proposition was equally true, *267that the vendee in an executory contract for the purchase of land, could not bring the suit to obtain the possession.

"But when the case of *Middleton*v. *Harrison*is carefully considered, it will be found to embrace both propositions, substantially. For the learned ami able judge of the circuit court of Jackson county, who tried the cause in the court below, instructed the jury substantially to that effect. And Judge Moncurb, in delivering the opinion of the court of appeals, says expressly that, ‘in regard to the instructions, I think the court did not err in refusing to give those which were asked for by the parties, or in giving those which were given by the court.’ ’’

ǁ

 Evidence—Proof That Deed Misunderstood—Admissibility.—In the last headnote of the principal case it is held that, proof that the deed when read was understood in a very material respect as different from what it is, may tend to show that it was misread, and therefore is competent evidence. In a long quotation from the principal case on this point, the court, in Morrow v. Rathey, 8 VV. Va. 329, says that this is certainly the settled law in this state.

MONCURE, J.

I am of opinion that the Circuit court did not err in overruling the motion of the defendant to strike this case from the docket. I think the case was properly removed from the County court to the Circuit court, under the fourth section of the act of March 28, 1843; Sess. Acts, p. 18; which declares “that whenever any civil action in a court of law shall have been, or shall hereafter be, pending in a county or corporation court for the space of one 3Tear, without a final decision thereof having been made, it shall be lawful for any party in any such civil action, or his or her legal representatives, to obtain, by motion, without notice, an order of such court for the removal of such cause to the Circuit superior court of law and chancery of the same *county*or corporation, upon the same terms, and in the same manner in all respects, as if it were a suit in equity, and the same proceedings shall be had in reference to the removal and trial of such causes as are directed by the act passed the 18th (12th) of February 1838, (Sess. Acts, p. 61,) entitled “An act to authorize the removal of *causes in equity from the inferior to the superior courts. ’ ’ The case at the time of its removal was a civil action in a court of law, and had been pending in the County court for the space of one year, without a final decision thereof having been made. It was, therefore, within the literal terms of the statute. Was it not within its spirit and meaning also? I think it was. The manifest object of the statute was to avoid the great evil of delay in the trial of causes in the County courts. This evil existed in regard both to chancery suits and civil actions; but in a greater degree, to the former. The act of 1838 was intended to remedy the evil in regard to chancery causes, and the act of 1843 in regard to civil actions. The action of unlawful detainer is peculiarly and especially within the scope of the policy of the legislature, as indicated by these acts. It is a remed3r for a wrong which requires immediate redress. The law has, therefore, provided that it shall be prosecuted in a most summary wa3r, and have precedence for trial over all other civil causes. It was probably not contemplated by the legislature that such a proceeding for the redress of such a wrong would ever ‘ ‘ be pending in a County court for the space of one year, without a final decision thereof having been made.” But if it would, surely the legislature intended that it might be removed to the Circuit court, in the same manner in which any other civil action, under similar circum*271stances, might be so removed under the act of 1843.

The ground on which the counsel of the plaintiff in error contended that the action of unlawful detainer is not a civil action within the meaning of the act of 1843, is that that act applies only to civil actions of which the Circuit court has original jurisdiction; and the Circuit court has not original jurisdiction of an action of unlawful detainer. It is true that the Circuit court has not original jurisdiction of an action of *unlawful detainer. The only reason for not giving such jurisdiction is, that the nature of the wrong for which the remedy lies, requires a more speedjT redress than could well be afforded by that court, sitting as it does but twice in a year.

Formerly the County court, though 'holding a session every month, was not considered by the legislature as affording the means of a sufficiently speedy redress of the wrong; and, therefore, a tribunal composed of at least two justices, and meeting not less than ten nor more than twenty days after the date of the warrant, was provided for the trial of actions of unlawful detainer. They are now triable by the County court; but at any term whether monthly or quarterly: and are still tried in a summary way, and have precedence over all other civil causes on the docket. But -while the Circuit court has never had original, it has always had appellate jurisdiction in actions of unlawful detainer; and I think the act of 1843 was not intended to be confined to civil actions of which the Circuit court has original jurisdiction, but was intended to embrace all civil actions of which that court has jurisdiction, whether original or appellate. I can see no good reason for the restrictive meaning contended for, contrary to the literal terms and obvious policy of the act. It was contended that as the act of 1843 declares that the same proceedings shall be had in reference to the removal and trial of causes under that act, as are directed by the act of 1838 in regard to causes in equity; and as the act of 1838 declares that the Circuit court shall have the same jurisdiction of a cause in equity removed under that act, and shall proceed therein in all respects as if the cause had been originally instituted in that court; therefore, no civil action of which the Circuit court has not original jurisdiction can be removed under the act of 1843, because no case in equity of which the *Circuit court has not original jurisdiction can be removed under the act of 1838. In other words, it was contended, if I rightly understood the argument, that the act of 1843, in consequence of its reference to the act of 1838, is to be read as if the words, “and the Circuit superior court shall have the same jurisdiction thereof, and shall proceed therein in all respects as if the cause had been originally instituted in the Circuit superior court, ’ ’ which are contained in the act of 1838, had been repeated in the act of 1843. And that as an action of unlawful detainer could not be originally instituted in the Circuit court, therefore that court could have no jurisdiction thereof, if removed from the County to the Circuit court. This argument, though plausible, is, I think, unsound. The words referred to were not used in the act of 1838 for the purpose of excluding from its operation any causes in equity of which the County court had jurisdiction and the Circuit court not; for there were no such causes. If the jurisdiction of the two courts in such causes was not entirely concurrent, certainly the Circuit court had jurisdiction of every cause in equity of which the County court had. The words could only have been used for the purpose of giving to the Circuit court the same jurisdiction of a cause in equity removed to it as of a cause instituted therein. Different words might and probably would have been used if there had been any causes in equity cognizable in the County, and not in the Circuit, court: but as there were not, the words used conveyed the idea intended as well as any that could have been selected. The act of 1843 refers to the act of 1838 merely to avoid repetition ; and the legislature could not have intended, by the implied adoption of ambiguous words, to exclude from the operation of the former, the action of unlawful detainer, which, as I have already said, is embraced both by the letter and the spirit of the act. *The act of February 7th, 1849, Sess. Acts, p. 42, though passed after the removal of this case, -was referred to in the argument as serving to show that prior to that act a civil action, in which the Circuit court had not original jurisdiction, could not have been removed from the County to the Circuit court under the act of 1843. The act of 1849 is somewhat of the nature of a declaratory law. At all events, while it adopts a rule for the future, it does not even express the opinion of the legislature as to what had been the true rule before. It recites that different constructions had been put upon the 30th section of the act of April 16th, 1831, Sup. Rev. Code, p. 146, and the 4th section of the act of March 28th, 1843, and that it wa s desirable to have uniformity in the construction of the said sections. It then declares that the Circuit courts shall have power to award a writ of error and supersedeas to any judgment, &c., of the County courts in which the latter have original jurisdiction; and to order the removal of any civil action pending in such courts in the manner provided in the fourth section'of the last recited act, notwithstanding that the amount in controversj- in such judgment &c. may be less than fifty dollars.

When the act of 1849 was passed, the Circuit court had no original jurisdiction in pecuniary actions, in which the amount in controversy was less than fifty dollars; and it seems to have been supposed by some that the Circuit court had no appellate jurisdiction in such cases. Those who entertained that supposition, as a natural consequence, also supposed that as the Circuit court had neither original nor appellate *272jurisdiction'in such-cases, they Gould not therefore be removed from the County to the Circuit court under the act of 1843. And hence the act of 1849 was passed to remove all doubt on the subject, by declaring that the Circuit court should have jurisdiction of such cases, ' whether removed to it by writ of error &c. under *the act of 1831, or an order of removal under the act of 1843.

The act of 1849 indicates the sense of the legislature that the jurisdiction of the Circuit court under the act of 1843 should be coextensive with its appellate jurisdiction. The words “notwithstanding that the amount in controversy in such judgment &c. may be less than fifty dollars,” were certainly not designed to exclude the jurisdiction of the Circuit court in an action of unlawful detainer removed to it under the act of 1843. It wo'uld be strange indeed, if the legislature intended by the act of 1849 to confer jurisdiction on the Circuit court under the act of 1843, in cases in which it had not original, and was supposed by some not before to have had appellate jurisdiction, and at the same time to exclude its jurisdiction under that act_ in a case in which it always had appellate jurisdiction.

I am further of opinion that the Circuit court did not err in overruling the motion of the defendant to change the place of the case upon the docket; and that the reason assigned by the court, to wit, “because this case occupied the place on the docket which it has occupied ever since it came into this court, and had priority over all civil causes in the County court, and was entitled to the same priority here that it had in that court, ’ ’ was well founded, and a good reason for overruling the motion. If, however, there had been any error in this respect, I do not see how it could have prejudiced the parties, or been any ground for reversing the judgment.

In regard to the exceptions of the defendant to opinions of the court permitting a witness who had surveyed, or partially surveyed, the land in controversy for the plaintiff, to refresh his memory by referring to certain papers which he had in his hand: The law on this subject is thus laid down in Greenl. on *Evidence, § 436: “Though a -witness can testify only to such facts as are within his own knowledge and recollection, yet he is permitted to refresh and assist his memory, by the use of a written instrument, memorandum or entry in a book, and may be compelled to do so if the writing is present in court. , It does not seem to be necessary that the writing should have been made by the witness himself, nor that it should be an original writing, provided, after inspecting it, he can speak to the facts from his own recollection.” “And it is not necessary that the writing thus used to refresh the memory, should itself be admissible in evidence.” Numerous authorities are cited by the author, which, I think, fully sustain his view of the law; though there is certainly some conflict, at least in the dicta of some of the judges.

The doctrine established by the authorities seems to be that if a witness, after looking at the paper to recall the facts, can speak from his own recollection ' of them, and not merely because the3r are stated or referred to in the paper, his evidence will be admissible, notwithstanding the manner in which his recollection was revived, and no matter when or by whom the paper was made, nor whether it be original, a copy, or an extract, nor whether referred to b3r the witness in court or elsewhere. 4 Philips’ Evi.; Cowen & Hill’s Notes, part 2, p. 734. This kind of testimony is liable to abuse; the chief objection to it being that the paper referred to operates on the mind of the witness like a leading question : but it is rendered necessary by the frailty of the human memory; and the abuse to which it is liable must be guarded' against by the vigilance of the court. If after looking at the paper the witness cannot speak from his recollection merely, his testimony, so far as he cannot speak from his recollection, is inadmissible;' and the paper itself, if admissible evidence, either alone, or so far as» it may*be supported by the recollection of the witness or other testimony,' must be produced. In Jacob v. Lindsay, 1 East’s R. 460, the witness was permitted to refer to a paper which- itself was not admissible evidence. In Henry v. Lee, 2 Chitty’s R. 124, 18 Eng. C. L. R. 273, a withess was allowed to refresh his memory from a document though not written by himselL “It is sufficient,” said Lord EUenborough;' C. J., in that case, “If a man can positively’ swear that he recollected the fact, though he had totally forgotten the circumstance before he . came into court; and if upon looking at any document, he can so far refresh his memory as to recollect a circumstance, it is sufficient; and it makes no difference that the memorandum was written by himself, for it is not the memorandum that is the evidence, but the recollection of the witness.”

I see nothing in Starkie on Evidence, nor in the case of Doe ex dem. Church v. Perkins, 3 T. R. 749, so much relied on by the counsel for the plaintiff in error, which is in conflict with the doctrine as laid down by Greenleaf. On the contrary, the case of Doe v. Perkins is one of the cases cited by that author, and tends to support the doctrine. -The point decided therein, as stated in the marginal abstract, was that a witness may refresh his memory by any book or paper, if he can afterwards swear to the fact from his own recollection. But if he cannot swear to the fact from recollection, any further than as finding it entered in a book or paper, the original book or paper must be produced. Mr. Justice Buller in Doe ex dem. Church v. Perkins, referred to a case of Tanner v. Taylor, in which, being an action for goods sold, “the witness who proved the delivery, took it from an account which he had in his hand, being a copy, as *273he said, of the day book, which he had left at home: and it being objected that the original ought to have been produced, Mr. Baron Begge said that if he would swear *positively to the deliver}- from recollection, and the paper was only to refresh his memory, he might make use of it. But if he could not, from recollection, swear to the delivery, any further than as finding them entered in his book, then the original should have been produced; and the witness saying he could not swear from recollection, the plaintiff was non-suited. ’ ’

This doctrine is of easy application to the case under consideration. The witness was permitted to refer to two papers to refresh his memory. The first was an original paper; being a diagram made by the plaintiff of the tract of land claimed by him, which paper had an endorsement thereon in the handwriting of the plaintiff, stating that it was the tract on which the defendant lived. The witness stated that some years before, he surveyed two or three lines of the survey on which the defendant lived, and when he run the lines he had no authentic document to run them by, and only had the paper with the diagram and endorsement aforesaid. To this diagram the witness referred for courses and distances, and admitted that he did not remember how far he had run or what courses he had run, without reference to said paper; and did not recollect either course or distance independent of said j>aper. To the witness refreshing his memory from said paper, the defendant objected; but the court overruled the objection, directing the witness not to state anything set out in the paper, but only to state what acts he did in running the lines aforesaid, and what he found on the ground. I think there is no error in this ruling and direction of the court.

The witness had run certain lines, at the request of the plaintiff, and according to a paper containing a diagram, which the plaintiff placed in his hands. The fact that such lines were run, was a link in the chain of the plaintiff’s evidence. Whether they were lines *of the patent under which he claimed, depended upon a comparison with the patent which was before the jury, and the evidence of the surveyor as to the appearances upon the ground, &c. There was no objection to the fact as irrelevant evidence, but only to the use made of the paper, on the ground that not having been written by the witness, and he not recollecting what course or distance he had run independently of the said paper, it could not be referred to by him to refresh his memory. It was an original paper; was in court; was identified by the witness; and, in connection with his testimony, was the very best evidence of the lines he had been requested by the plaintiff to run. The witness might have recollected the courses and distances of these lines; and if so, might have given evidence of them, without reference to the paper. But it could hardly be expected, after the lapse of several years, that he could remember them without such reference, or even with it. All that he could reasonably be expected to be able to say, was, that, at the plaintiff’s request, he ran certain courses and distances set forth in the paper which he had in court, and held in his hand. This he did say, and it was admissible evidence to prove the fact accordingly. In this and the like cases, the paper itself, being a part of the evidence, must be produced.

The other paper, to which the witness was permitted to refer, was an extract or copy from his field notes of the stirvey before mentioned, which notes were at his home. He said that the copy was accurately made by him, but did not pretend to say that he recollected the courses or distances deposed to from said copy, independently thereof. The defendant objected to the evidence, because the original field notes were not produced. The court overruled the objection, and permitted the witness to refer to the copy to refresh his recollection of the running done by him. If the witness, *after referring to the copy, had said that he had no recollection of the facts therein contained, and could only say they were true, because they were therein contained, I think, according to the authorities before cited, it would have been necessary to have produced the original. There may be some ambiguity on this subject in the bill of exceptions, which might produce some difficulty, if the question were material; but in this case it is not. Understanding the court as permitting the witness to refer to the paper merely to refresh his recollection of the running done by him, or of the facts therein set forth, I think there was no error in so doing.

In regard to the objection that the court permitted the witness Fisher to be sworn on the voir dire after his interest had been shown by evidence aliunde: It is sufficient to say that the error of the court, if any, was cured by the fact, that before the witness was sworn in chief a deed was produced and proved, which terminated his interest.

In regard to the instructions: I think the court did not err in refusing to give those which were asked for by the parties, or in giving those which were given by the court. The agreement of the parties, which was by deed exhibited and proved to the jury, if it did not terminate the defendant’s right to hold the land in controversy on the 10th of April 1847, at least made him a tenant at will or at sufferance after that day; and such a tenant is not entitled to six months’ notice, to which a tenant from year to year is entitled. The most that he can require is reasonable notice, and he is entitled to no notice if he claims to hold adversely, or attorns to some other person, or does some other act disclaiming to hold as tenant. 1 Bom. Dig. 165. In this case there was evidence that the defendant refused to surrender possession of the land to Fisher according to the agreement. I think that the plaintiff, *being invested *274with the legal title, had a right to maintain the action at the time it was instituted, notwithstanding his executory contract with Fisher.

In regard to the only remaining question: I think the court erred in excluding the evidence of the witness Alexander Harrison, offered by the defendant. In a suit brought upon- a deed, the plaintiff is not required to prove it without a plea of non est factum, verified by oath. But when, as in this case, a deed is introduced collaterally as evidence, it must be proved by the party introducing it, according to the rules of law; and the other party, without any denial of the deed on oath, may assail it by any evidence which shows, or tends to show, that it is not his deed; indeed, by any evidence which would be admissible on the plea of non est factum. He may, therefore, introduce evidence tending to show that there was fraud in the execution of the instrument, as that it was misread to him, or his signature obtained to a different instrument from the one he intended to sign. Taylor v. King, 6 Munf. 358; Dorr v. Munsel, 13 John. R. 430; Van Valkenburgh v. Rouk, 12 Id. 337.

In the last case, the court said, “If a deed be misread or misexpounded to an unlettered man, this may be shown on non est factum, because he has never assented to the contract. So, if a man be imposed upon, and signs one paper while he believes he is signing another, he cannot be said to have assented, and may show this on non est factum. ” It does not certainlj’ appear whether the defendant in this case was unlettered or not. His signature to the deed purports to have been made by himself, and the presumption therefore is, that he was not. But the admissibility of evidence tending to prove fraud in the execution of an instrument does not depend upon the fact that the party whose deed it purports to be, was unlettered; though the weight of the evidence is materially increased thereby.

*In this case, the defendant offered to prove by one of the subscribing witnesses to the bond, that he and the defendant both understood the agreement (which is in the handwriting of the plain - tiif) as referring the title to the land to the arbitrators named in said paper; that said witness was present when it was read to the defendant, and neither the witness nor the defendant understood or believed that said paper made the defendant the tenant of the plaintiff; nor did they know that any such thing was in said paper; and further, that both the witness and the defendant understood said paper as read to them, as simply referring to the arbitrators the right to said la'nd, and not that the defendant had by that paper given up his right to the land, and referred to arbitrators his right to pay for improvements, to be set off against the annual rents of said land. If the paper was correctly read to the defendant at the time of its execution, ,his misunderstanding of it could not affect its validity as a deed: And so far as the evidence offered tends to show a mere misunderstanding of the paper, it is wholly immaterial and irrelevant to the issue. But if it tends, in any degree, however slightly, to show that the paper was materially misread to the defendant at the time of its execution, and that he was thus induced to execute it, the evidence is admissible. I think it has such tendency, and ought to have gone to the jury, to be weighed by them with the other evidence in the case. It may be of little weight in itself to prove fraud in the execution of the paper, and of less or none when taken in connection with the other evidence. But of that the jury are the exclusive judges. The witness was selected by the parties to attest the instrument; and it-was his duty to notice the circumstances attending its execution. He did not say that the paper was misread, nor how it was read to the defendant at the time of its execution. He may not have remembered particulars, of been able to state *more than his understanding of the substance of the paper as read to the defendant. That understanding was materially different from the plain meaning of the paper itself; and it is difficult to conceive that he could have so understood it, if he is a man of ordinary intelligence, and heard the paper correctly read. But these are matters for the consideration of the jury, and are adverted to here only to show that at least the evidence is relevant and admissible; which is the only question the court has to decide in regard to it.

I am of opinion that the judgment should be reversed, the verdict set aside, and the cause remanded for a new trial to be had therein.

LEE and SAMUELS, Js., concurred in the opinion of Moncure, J.

DANIEL, J., dissented.

Judgment reversed.