Opinion of the court. and eighty rods distant from the dwelling-house. No one would contend that a service at this last point could with propriety be called a service at the dwelling-house. Some latitude was, no doubt, intended to be given by this statute. It is not required that the paper shall be delivered to a person who is in the house at the time of such delivery. It may be delivered to one who is at the dwelling-house merely. This expresses the idea of nearness of place, and is less definite than if it had been said, in the house or on the house. To say that one is at home, may mean that he is in the town or city of his residence, or it may mean that he is upon his grounds or in his house. The intended effect of this expression is illustrated by the other portion of the provision, which forbids (by implication) the delivery of the paper to one who is not of the age of ten years or upwards. If delivered to a young child, there would not be that probability of its delivery to the defendant in the suit, which might be expected if it was left with one understanding the necessity of its delivery to the person for whom it was intended. Both the person upon whom, and the place where, service may thus be made, are intended to secure a delivery to the party interested. It is not unreasonable to require that it should be delivered on the steps or on a portico, or in some out-house adjoining 'to or immediately connected with the family mansion, where, if dropped or left, it would be likely to reach its destination. A distance of one hundred and twenty-five feet and in a corner of the yard is not a compliance with this require ment. The case falls within the scope of the authorities in which relief is given against a judgment. When Turner made affidavit that he served the declaration, by delivering the same to John Benson, at the dwelling-house of his son, he erred either as to the law or the fact. If he did not deliver the paper to Benson at all, he was wrong in his statement of fact. If he did deliver it, he was wrong in his conclusion that he delivered it at the dwelling-house of his son. judgment has been entered where the service was insuffi Statement of the case. cient, and the defendant has had no opportunity to defend his estate. It is not necessary to decide upon the conflicting evidence. It is a case, where, either by fraud or by accident, or by mistake, without fault on his part, the defendant has been deprived of the opportunity to make his defence, and within the rule laid down by C. J. Marshall, the judgment must be set aside, and an opportunity afforded to test the question in a court of law. JUDGMENT AFFIRMED. SMITHS V. SHOEMAKER. 1. In an action of ejectment, a letter of the plaintiff's grantor, written to the ancestor of the defendant, is not competent evidence to show that the ancestor entered into possession under the license of the plaintiff's grantor, without some evidence that such letter was received or acted on about the time of such entry by the ancestor. 2. A general objection that such letter is a declaration of the grantor of his own rights was sufficient. 3. If, in the appellate court, the party introducing such a letter relies on any special circumstances as an exception to the rule (as that it was part of the res gesta), that circumstance must appear in the bill of exceptions or by the record in some other manner. The admission will be held to be erroneous unless this appears. 4. There being no extrinsic evidence that the letter was ever received or acted on by the ancestor, the date found in the letter, though near the time of entry, is not sufficient evidence of that fact to justify its admission. The important fact being its receipt by the defendant's ancestor, at a particular time, cannot be established by the date found in the letter for the purpose of admitting the letter. The date would thus prove the letter, and the letter prove the date, without evidence that either was true. 5. When it is argued here that an error in the court below worked no injury to the party complaining, the fact that it worked no injury must be made to appear beyond question. If it is only to be seen by a mere preponderance of evidence, and the error is substantiated, the judgment must be reversed. ERROR to the Supreme Court of the District of Columbia. David Shoemaker brought ejectment, in December, 1868, against Caroline Smith, Mary Smith, et al., for certain real Statement of the case. estate in Georgetown, D. C. The property in question had been conveyed, A.D. 1810, by persons owning it, to one Beal, in trust for a certain Kilty Smith during life, and on his death for his son John Chandler Smith. After the date of this deed, Kilty Smith had another son, to wit, Hamiltou Smith, the father of the defendants. On the trial, the plain. tiff, Shoemaker, having shown title in the above-named John Chandler Smith, completed his title by showing a conveyance from the said John Chandler Smith to himself, dated June 20th, 1868. The bill of exceptions now thus stated the case as made by the defendants: "The defendants, then, to maintain the issues upon their part introduced parol evidence, tending to show that Hamilton Smith . . . entered into the possession of the premises in controversy in the year 1845, with his family, claiming title thereto through a parol gift of the property from his father, John Kilty Smith; that he continued to reside thereon with his family until his death in 1857; that his children, the present defendants, Caroline and Mary, were born upon the said premises; . . . that Caroline was born in December, 1845, and Mary in October, 1847; that the said Hamilton during such occupancy always claimed to own the said premises as aforesaid; that after his death his children continued in the uninterrupted possession thereof continuously, claiming the absolute ownership of said property as heirs-at-law and representatives of their deceased father, which possession was by residence, use, and occupation, and with fixed inclosures, from the entry of the said Hamilton, in 1845, till the present time." The plaintiff then, without giving any account of when it was written, or where it had come from, or how he came possessed of the letter. in order to show that the possession of the defendants was not adverse to the title of John Chandler Smith, but was held under him, and was by license or permission from him, offered in evidence a letter thus: "BALTIMORE, September 10th, 1845. "DEAR BROTHER: I have just received father's letter, dated 26th August, sent to me by you. He is well, and across the Statement of the case. lake with his friend, Mr. Montgomery. My health is better. I hope by strict diet and moderate exercise to recover in time. I am still at uncle's, as they insist upon my staying with them, where I am very comfortable, with good society; and I go out a visiting almost every evening with my two cousins. As regards the advertisement for the rent of the house, there is no necessity for it, as I have determined to place you and your family there, as it will be the very best plan, and you will be better satisfied; so you may take possession as soon as Mr. Bagby leaves it. There is nothing new here whatever. I have just written to father. We are all well here. I wish you to write to me. Give my love to Ellen and all. "Your affectionate brother, "To HAMILTON SMITH, Georgetown, D. C.” "JOHN CHANDLER SMITH. The defendant objected to the reception of the letter in evidence. "1st. Because the plaintiff could not introduce his own declarations, statements, or letter, or the declarations, statements, or letter of those under whom he claims title, to show under whom the defendants or their ancestor went into possession of the property. "2d. Because the letter was not admissible in evidence for any purpose whatever. "3d. Because there was no evidence to show that it was in response to any letter written by Hamilton Smith, or that Hamilton Smith ever replied to it. "4th. Because it was not responsive to the defendant's testimony-in-chief, and was not admissible as a part of the res gesta. "5th. Because it was not competent or admissible to prove any of the issues raised by the pleading or evidence. "6th. Because there was no evidence to show that Hamilton Smith acted upon any instructions or suggestions contained in it. "7th. Because it was irrelevant, inadmissible, and not proper proof." The court, however, under exception, admitted the letter in evidence for the purpose for which it was offered. Statement of the case. The plaintiff then offered two letters from Hamilton Smith. to John Chandler Smith, which were received without objection. They were thus: "GEORGETOWN, March 5th, 1856. "DEAR BROTHER I should like you to sent me the money you promest me in the first of this month Dear Brother I have been very unhappy since you left hear thinking about leaveing my old home where I have lived so long I hope you will change your mind and make it over to me as you and Father has made me menny faithful promises of its being mine and my childrens and now to think that I am to bea turned out of it and to seak shelter somewhere else I have looked forward to bea made happy but now my prospecks are blasted I have had but little pleasures in this world and expeck to have lest if you ever part from this property I hope you will let me have the refusal of it I am not calculated to do enny bisiness and are to depend on your generosity and kindness for Gord knows I miss Father very much It ought to have been me that Died in place of Father for he could do buisness I am fit for nothing on the face of the earth but a begar I hope you will let me hear from you soon all joine with me in love to you and all I remine your affectionate Brother "HAMILTON SMITH." "GEORGETOWN, March 11th, 1856. "DEAR BROTHER I received your letter of the 6 of this month and we were pleased to heare from you I am very sorry that my letter distressed you I should not have wrote to you about the house, but as you said you did not think you would give me this house and as you went to see Brook Williams the night you stayed here I thought he might want you to sell this place to him I am thankful to you to here you say that I may live here as long as I think proper If I have said or done enny thing rong to you to keep me from giveing me this House I am sorry for it and hope you will forgive me... It grieves me to think that I have not a noughf to live on without going in det but I am thankful to God for what I have and hope he will wach over us and proteck us as he dus the foules of the are I am thankful to you for what you have done for me and never shall forget you for your kindness to me you say you will send me one hundred Dollars this month and if I take that to pay my bills with I shall have nothing to live on I |