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    Allison versus Commonwealth.
    1. Where a juror in a criminal case entertains a fixed and deliberate opinion, no matter how formed, of the prisoner’s guilt, he is incompetent ; and his belief that he can try the prisoner impartially will not remove the disqualification. If, however, his opinion be not fixed and deliberate he is competent to serve.
    3. A juror in a criminal case being sworn upon his voir dire, replied, in answer to leading questions by the defendant’s counsel, that lie had formed a deliberate conviction from what ho had read as to the prisoner’s guilt. He then proceeded to say that it would require evidence to remove that conviction from his mind, and that to this extent, his judgment as a juror would be affected. On cross-examination, however, ho testified that he had no other deliberate fixed opinion than that which proceeded from what he had read; that he had nothing more than an impression, which would yield to the evidence in the case, and that ho would act impartially and render a verdict according to said evidence. Held, that though the examination in chief apparently showed that the juror had formed a fixed opinion, and thus prima facie rendered him incompetent, the cross examination showed that such was not actually the case, and that therefore the juror vras competent.
    3i Where a juror in a criminal case has formed an opinion from hearing or reading the evidence upon a former trial, he is incompetent even if the opinion thus formed does not come up to the standard of a fixed opinion.

      4. A mere opinion or impression which is not fixed, and which is not based upon the evidence of a former trial, but upon the evidence taken on some preliminary examination, does not disqualify, provided the juror can act impartially, and render a verdict upon the evidence and upon that alone, uninfluenced by such previously formed opinion or impression.

      5. A person mortally wounded was informed by his physicians that there was no hope, and that he must die. He said he knew it, and told all with whom he conversed upon the subject that he would die from his injuries. He then made certain declarations as to his murderer, and immediately after directed his will to be prepared. Upon the will being brought to him he inquired whether if he got well the will would amount to anything. Being told that it would not, he executed it, and afterwards died. Held, that his inquiry as to the efficacy of the will in the event of his recovery did not, of itself, in the face of the evidence, disclose any expectation of recovery on his part, and that therefore his declarations as to his murderer were admissible in evidence as dying declarations.
    6. The fact that dying declarations have been committed to writing by a bystander, which writing has not been signed by deceased or read over to him, does not exclude parol evidence of such dying declarations.
    October 26th and 27th 1881.
    Before Sharswood, O. J., Mercur, Gordon, Paxson, Sterrett and Green, JJ. Trunkey, J., absent. .
    Error to the Court of Oyer and Terminer of Indiana county: Of October and November Term 1881, No. 167.
    indictment of James E. Allison for the murder of his father, Bobert Allison. Plea, not guilty.
    On the trial, before Blair, P. J., the Commonwealth’s evidence was to the following effect: Bobert Allison, the deceased, was about seventy years of age. Prior to 1877, he lived with his family on his farm in Washington township. His family consisted of his wife, two daughters and three sons. Owing to fights and quarrels with his wife and children, and particularly with his son James, he left his home about January 1st 1877, and went to resido first with his sister and afterwards with his brother Alexander, who occupied an adjoining place to his own. On one occasion, when he returned to his home “ to assert his rights there,” he was kicked out by his son James, for which assault he had James arrested and indicted. This assault was committed March 13th 1880. The indictment was set for trial on June 17th 1880. By the intervention of some friends, the ease was continued when called for trial on that day. There was evidence in connection with said indictment that James made threats that he would shoot his father.
    On the evening of Friday, J une 18th 1880, Bobert Allison was shot near the residence of his brother Alexander. Several witnesses testified that they heard first one shot, and after a few seconds, three others in rapid succession. That after the first shot, they heard Robert Allison exclaim: “For God’s sake, don’t kill me, «Tim, this time,” and after the shooting was over, they heard the expression “ Yon damned old son-of-a-bitch, how do you feel now ?” and recognized James’ voice making it. Robert Allison was found to have been shot four times, two at least of the wounds being of a fatal character. He was taken into his brother’s house, where he was examined by two physicians the same night. On Friday night and on Saturday, the physicians informed him, that Ms wounds were fatal, and that they could do nothing for him, and advised him to prepare for eternity, for he had not long to live. He replied that “ he knew it, and it was his son, James, that killed him.” He repeated this declaration several times, saying further, that he went to the bars to meet Alonzo (one of his sons), and, instead of meeting him, met James, who shot him four times. That at the first shot he fell down and exclaimed: “For God’s sake, Jim, don’t kill me this timehe then got up and started to run, and James caught up with him and shot him three times after that.
    About daylight, on Saturday morning, the 19th of June, Thomas Lukehart, a justice of the peace, was called in to write his will. The deceased stated to Lukehart that his son, James, had shot him with a pistol four times, and that he thought he could not live. He then spoke about the will, and he asked Squire Lukehardt “ if he got well, if the will would have any effect,” to which Lukehardt replied, “ it would not,” and the will was written.
    The counsel for the defendant moved the court to strike out the testimony of Lukehart and others, admitted as dying declarations ; it appearing from the testimony of the -witness, Lukehart, that the deceased had at the time hopes of recovering. This motion was overruled “ for the present,” but being renewed on the following morning, the president-judge addressing the counsel, but in the presence and presumably in the hearing of the jury, granted the motion, and directed the reporter to note that the said testimony was striken out. The court did not, however, at that time, nor subsequently, expressly direct the attention of the jury to the fact that such testimony was stricken out, nor instruct them to disregard it. This omission constituted the seventh, eighth and ninth assignments of error.
    It further appeared that one Mr. ITazlett, being present with Robert Allison, at 3.40 a. m. on Sunday, June 20th, wrote down a statement made by Mm, as his dying declaration, in which he accused his son James of shooting him. This paper wras not signed. It wTas put in evidence by the Commonwealth ; whereupon counsel for the prisoner moved the court to strike out all evidence of so-called dying declarations, “ excepting as contained in the written paper, which is the best means of proof, and necessarily excludes all other.” Motion overruled; exception. (Tenth assignment of error.)
    Robert Allison died Monday morning, June 21st 1880.
    The assignments of error mainly relied upon in the argument related to the action of the court in overruling the prisoner’s challenges to several jurors, for cause, upon the ground that their examinations upon their voir dire showed that they had formed a more or less fixed opinion of the prisoner’s guilt from having read the testimony taken at the coroner’s inquest and reduced to writing, the entire substance of which was printed in several newspapers with comments on the tragedy, and' which had been read by the jurors so challenged. After the court had overruled the said challenges for cause, the prisoner challenged peremptorily the jurors so objected to, with the exception of one, Joseph Atkinson, who was sworn and acted as a juror.
    The several specifications of error relating to this branch of the case recited in full the testimony of the said jurors given upon their preliminary examination, the essential portions of which were as follows,:
    Frank Fleming, called as a juror, testified
    Q. Have you heard of this case ? A. Yes, sir, I have heard of it. Q. Did you read about it in the newspapers? A. Yes, sir, I did. Q. Did you read the testimony that was taken before the coroner ? A. Yes, sir. Q. From what you have read and heard of this matter, will you state whether or not you have formed or expressed an opinion about it? A. Yes, sir, I did; I passed my opinion of what I heard and read. Q. State whether or not that is such an opinion*as would require testimony to remove it from your mind? A. Yes, sir, it would. Q. In view of what you have read and heard about it, could you go into the jury box and try it without some testimony to remove the opinion you have? A. No, sir.
    The prisoner challenged for cause.
    By Mr. Thompson. — Q. You say you have formed an opinion from what you have heard and read ? A. Yes, sir. Q. That opinion is formed from that alone ? A. Yes, sir. Q. If you were sworn as a juror and took your seat in the box as a juror, would you be controlled in your finding by what you heard and read or by the testimony given in the case ? Á. I suppose by the evidence.
    By the Court. — Q. Could you go into the jury box, and after listening to the evidence, render an impartial decision according to the law and the evidence, wholly uninfluenced by any opinion you have formed from what you have heard and read ? A. I suppose I could. Q. If you were sworn as a juror, could you give the prisoner a fair and impartial trial according to the law and the evidence, without being influenced by the opinion formed from what you have heard and read ? A. Tes, sir. Q. Would you give the prisoner, when sworn as a juror, a fair and impartial trial, according to the evidence, uninfluenced by any opinion you may have formed from any testimony you may have heard and read? A. Yes, sir.
    By General White. — Q. Have yon at this moment, from what you have read and heard about this ease, such an opinion as would prevent your rendering such a verdict as the law and evidence given on the trial would warrant ? A. I have, unless it would be removed by evidence given in now.
    Challenge for cause overruled, and exception noted for the prisoner.
    The prisoner challenged peremptorily.
    Jacou Lutz, a juror, upon his examination said:
    Examination by Mr. Clark. — Q. Have you heard anything of this ease ? A. Yes, sir. Q. Have yon formed any opinion ? A. Yes, sir. Q. You have formed an opinion of this case, such an opinion as would influence you as a juror ? A. It would influence without some evidence to change it. Q. That is a fixed opinion, is it ? A. No, sir, not a fixed opinion. Q. How could it be changed? A. By good evidence. Q. You would be influenced then as a juror somewhat by the opinion you have formed? You would be influenced to some extent as a juror by the opinion you have formed? A. Yes, sir. Q. That would affect your judgment to some extent? A. Yes, sir.
    The prisoner challenged for cause.
    By Mr. Thompson. — Q. You say you have a fixed opinion ; what do we understand by that ? A. One that would take good evidence to change my opinion. Q. Would you be controlled in your action as a juror by what you have heard, or by what evidence would he produced on the trial ? A. 1 would go according to the evidence. Q. If the evidence was of a different character from what the report you have heard, the report would have no effect? A. No, sir. Q. Could you, in. making up your verdict, pass fairly upon the evidence? A. Yes, sir. Q. Could you under the opinion you say you have formed, take your seat as a juror and pass fairly between the Commonwealth and the defendant ? A. Yes, sir. Q. Unprejudiced and uninfluenced by this opinion ? A. Yes, sir.
    By General White. — Q. Ho yon entertain at this time any deliberate fixed opinion ? A. No, sir. Q. As to the guilt or innocence of the defendant ? A. No, sir, not at the present time.
    By the Court. — Q. Would the impression or opinion in any degree affect the verdict you would render if you were sworn as a juror ? A. No, sir.
    Challenge for cause overruled and an exception for the prisoner.
    The prisoner challenged peremptorily.
    John Phillips, a juror, upon his examination said:
    Q. Have you heard of this case ? A. Tes, sir; in the papers, the “ Indiana Democrat.” Q. Testimony was printed in that paper ? A. Yes, sir. Q. Will you state whether from what you read and from what you heard you formed in your mind any opinion about the guilt or innocence of the defendant? A. I did form an opinion. Q. Did you form such an opinion as would affect your judgment somewhat as a juror? A. I could not say how that would be until I would hear the testimony; but according to this here testimony I thought he was guilty — them statements that is there. Q. You came to a conclusion on that point? A. Yes, sir, from the testimony that is there. Q. That was your deliberate conviction from what you read? A. Yes, sir, that was from what I read. Q. It would require evidence to remove that conviction from your mind ? A. Yes, sir. Q. To that extent your judgment as a juror would be affected ? A. Yes, sir, it would.
    The prisoner challenged for cause.
    By General White. — Q. With the opinion which you gained from reading the newspaper that you spoke of, could you go into the jury box and render a verdict according to the evidence given here, uninfluenced by this previous opinion ? A. I suppose I might if the testimony was different. Q. Have you any deliberate, fixed opinion about this case? A. Nothing more than "from what I read. Q. Have you anything more than an impression? A. No, sir. Q. You have no such impression as would not yield to the evidence in the case? A. No, sir. Q. Could you then act as an impartial juror between the Commonwealth and the defendant ? A. It would be owing to the testimony. Q. Your verdict would be according to the testimony ? A. Yes, sir. Q. Could you go into the jury box prepared to hear the case, uninfluenced by this previous impression ? A. I consider that I could on account that I never saw this man before. Q. You have no fixed judgment about this case? A. Nothing more than from these accounts in the paper. Q. That would yield to the evidence in the case ? A. Of course. Q. Have you any conscientious scruples about capital punishment ? A. No, sir.
    By the Court. — Q. In answer to the examination of defendant’s counsel you spoke of having a conclusion or a conviction, and in answer to the examination by the Commonwealth’s counsel yon spoke of an impression or an opinion; wbat do you mean by saying that you had a conclusion or conviction in regard to the case; don’t want to know what it was, but what do you understand by it ? A. From the statement in that paper. Q. Did you come to a conclusion upon the question of the guilt or innocence from the statements ? A. I came to a conclusion. Q. That is a fixed opinion? A. I would come to that opinion till it would be removed by other testimony.
    By General White. — Q. Have you any fixed conclusion ibout this case? A. Nothing only from hearsay. Q. Vouldthat hearsay affect you as a juror going in the box? L. I could not say it would. Q. Have you such an opinion or ctnclusion, as you may call it, that would affect your judgment ox the evidence offered in the case? A. I could not say it wmld. Q. When you say conclusion — now conclusion and ojinion is thought by many people to be different things; a coiclusion is fixed, and an opinion may be changed ? A. I cane to the opinion from the statements that was in the paper. Q. Yon have no conclusion about it? A. No more than that. Q. That is what you mean when you speak of a conclusion ? A. Yes, sir. Q. Have you any fixed, deliberate opinion about this case? A. Nothing more than that there. Q. Could you actis an impartial juror between the Commonwealth and the def ndant ? A. I might on the testimony ; it would be owing to tie testimony given by the witness, proven. Q. Could any imjression that you may have now be removed by the testimoiy in the case ? A. Of course it would have to be removed if x was proved different. Q. Would any opinion that you hare now in the case have any effect in your judgment going as i juror on the evidence that would be offered? A. I could no say it would. Q. With the opinion that you have stated, co Id you take your seat as a juror and render a verdict on the evlence uninfluenced by this opinion? A. I think so. Q. Wiat would control you in your verdict ? A. The witnesses. Q. Would your judgment about the witnesses be influenced by tin opinion or impression. A. It would not.
    By the Court. — Q. Would this impression or conviction, or whtever you may choose to call it, in the slightest degree affect yar verdict in this case ? A. No, sir, it would not; it would bcthe evidence I look to. Q. Could you and would yon, if swim as a juror in the case, give the prisoner a fair and impartil trial, being entirely uninfluenced by any previous impressin ? A. I could not say but what I could; if the testimony wmld clear him, of course I could, and if not, I could not. Q I am speaking with reference to your present opinion; could vu give him a fair and impartial trial according to the evidnee, without being influenced in the slightest degree by the impression that you now have, or have had, heretofore ? A. Yes, sir, I could.
    The challenge for cause overruled, and exception for the prisoner.
    The prisoner challenged peremptorily.
    Jacob Wilhelm, a juror, upon his examination said :
    Q. Have you heard anything of this case ? A. Well, I have seen it in the paper, the “ Progress.” Q. The testimony taken before the coroner was printed there, I suppose? A. Yes, sir. Q. Printed in full? A. Yes, sir. Q. Did you hear of the case besides that publication? A. I did, some little Q. Will you state whether after what yon read and heari of the case, you came to a conclusion as to the defendants guilt or innocence? A. Well, I did not in particular cone to any conclusion. Q. Had you formed any opinion n your mind of his guilt or innocence ? A. No, sir, I had n<t. Q. From what you read and what you heard, did you form m opinion in your mind as to the defendant’s guilt ? A. I thougit I did. Q. Did that opinion amount to a conclusion in yar mind? A. Well, it did. Q. That was your deliberate ju<gment of the case from reading and what you heard ? A. Yis, sir. Q. This judgment which, you have formed would to soae extent affect your judgment as a juror? A. Well, I suppose it would. Q. It would require some evidence to remove tat opinion? A. Yes, sir.
    The prisoner challenged for cause.
    By General White. — Q. Have you at this time, at this noment, a fixed, deliberate opinion in your mind about the gu't or innocence of the defendant at the bar ? A. I could not fc it. Q. Is that anything more than' an impression on your mine? A. That is all. Q. Could you go into the jury box and sit asa juror to hear the evidence in this case and render a verdict uiaffected by any prejudice or opinions against the defendan? A. I guess I could. Q. Do you think you could render an iipartiai verdict between him and the Commonwealth accordiig to the evidence? A. I think I could.
    By the Court. — Q. You spoke of having a conclusion r judgment; do you mean that you had such a judgment as a ma would form who heard both sides of a case and all the evidene there was in it ? A. No, sir. Q. What sort of an impression ws it; was it a conclusion or conviction or a mere floating opinion* A. It was a floating opinion. Q. Would that impression c opinion, such as was then made, affect your mind in the slighest degree, favorably or unfavorably to the prisoner, if you wer sworn as a juror ? A. I think not. Q. Could you divest you; self of any influence or impression heretofore received, and rer der a fair and impartial verdict in the case according to the evidence? A. Yes, sir.
    Challenge for cause overruled.
    The prisoner challenged peremptorily.
    John Patterson, a juror, upon his examination, said:
    Q. Have you heard of this case? A. Yes, sir. Q. Did you read of it? A. Yes, sir. In the “Progress.” Q. Did you read the testimony taken before the coroner? A. Yes, sir. Q. Finding of the inquest, etc. ? A. Yes, sir. Q. Have you heard it much talked about ? A. It was at first talked about in the neighborhood. Q. From wrhat you heard will you state whether or not you have formed any opinion as to the guilt or innocence of the defendant ? A. From what I have heard I have formed an opinion. Q. Have you expressed that opinion? A. I don’t know that I have; I do not remember ever having, but I may have; I would not say. Q. Did you come to a conclusion, from what you read, as to his guilt? A. Yes, I did. Q. Come to a conclusion in your own mind? A. Yes, I did, from what I read. Q. What you read convinced you of your conclusion that you had come to ? A. If the facts that I read be true. Q. Then you had come to a conclusion ? A. Yes, sir. Q. Convinced you on the subject? A. Yes. Q. This opinion you would start out with as a juror, would require testimony to remove it, would it ? A. It would. Q. You would start out with the conviction that you have formed? A. Yes. Q. You would be somewhat influenced by it until it was removed ? A. Yes, I would.
    The prisoner challenged for cause.
    By Mr. Thompson. — Q. What is the nature of the opinion you have formed; is it a fixed opinion, settled opinion, one way or the other? A. Well, no; if Iliad evidence that what I have read was not correct I would give way. Q. Is it an opinion or an impression — a floating impression made at the time you read it ? A. Well, yes. Q. An impression that if what was true it would be one way or the other ? A. Yes, sir. Q. If sworn as a juror could you hear this case uninfluenced by anything you had read or heard, if sworn as a juror? A. I believe I could. Q. Could yon pass as a juror between the commonwealth and the prisoner, and give him an impartial trial on the law and evidence ? A. Yes, sir, I could.
    By the Court. — Q. As a juror, would you be influenced in the slightest degree in coming to a verdict, by any previous impression or opinion? A. No, sir. Q. Could you and would you, if sworn as a juror, give him a fair and impartial trial according to the law and the evidence in the case ? A. Yes, sir. Q. Without being in any degree influenced by your previous impression or opinion? A. Yes, sir.

      By Mr. Clark. — Q. Yon would, however, retain the opinion you have until the testimony would satisfy you that it was wrong? A. Yes, sir.
    By the Court. — As a juror would you have an opinion without hearing the evidence? A. I would have an opinion of what I have read. Q. As a juror would you have an opinion without hearing any of the evidence? A. No, not any. Q. I understand you that such opinion or impression as you have would in any degree influence your mind as a juror ? A. I do not think, that it would. Q. What was the character of the opinion; is it a loose opinion or impression, or is it a fixed opinion ? A. It was just a loose opinion coming to my mind when I was reading the paper.
    The challenge for cause overruled and an exception for the prisoner.
    The prisoner challenged peremptorily.
    Joseph Atkinson, a juror, upon his examination, said;
    Q. Have you heard this matter much talked about in your place there ? A. Well, yes. Q. Read something of it in the newspapers? A. Yes, at the time. Q. Where did you read it ? A. I believe it was the “Progress.” Q. Will yon state whether or not, from what you read or heard, you formed an opinion in your mind as to his guilt or innocence? A. Well, I thought by the testimony that I read, that it was rather dark on the prisoner’s side. Q. Not what it was, but whether you formed an opinion; did you have an opinion in your mind as to his guilt or innocence ? A. I hardly know how to answer that; according to the evidence I read there- Q. Did you come to a conclusion in your mind, without stating what that conclusion was? A. Well, yes. Q. Will you state whether or not that was a fixed conclusion in your mind at the time, and remained so? A. Well, no. Q. Would it require evidence to remove the opinion which you have on the subject? A. Certainly it would. Q. As a juror you would start out with the opinion you entertain, and, unless the evidence disproved it, you would retain that opinion? A. Yes, sir. Q. To that extent you would be influenced by what you read and heard? A. Well, until further testimony would offset what I read. Q. Did you read the finding of the jurors ? A. Yes. Q. Your judgment would be somewhat affected by the opinion you have entertained? A. Until contradictory testimony was offered.
    The prisoner challenged for cause.
    By General White. — Q. You have no fixed, positive and deliberate judgment about this case? A. No, sir. Q. You could go into that jury box, prepared to hear the evidence, with all tills impression removed from your mind, and do justice to tlie defendant ? A. Yes, sir, I could. Q. If called on to serve as a juror, you could go into tlie jury box and hear the evidence and make up your mind uninfluenced by any impression you formed when you read this case? A. (Hesitating.) I believe I could. Q. You could render a just and impartial verdict, according to the evidence between the Commonwealth and the prisoner? A. Yes, sir. Q. Would this impression, formed by what you read, in the slightest degree influence your judgment as a juror when you heard the evidence in the case ? A. Well, if the same evidence was given here, that was given at the coroner’s, I do not know wllat effect that would have; it would take pretty strong evidence, and I could not say. Q. Throw that out of your view; if it happens to be the same evidence we cannot help that; could you go into that jury box and act as a juror, and hear the evidence in the case, form your judgment on that, uninfluenced by anything you have heard ? A. Yes, sir. Q. Then you have no positive, fixed, deliberate opinion about this case at this time ? A. No, sir.
    By the Court.— Q. Have you any feeling or prejudice against the prisoner ? A. No, sir, nothing but sympathy. Q. Is the opinion of which you speak a conditional or absolute one; that is, is it conditional upon the truth of what you have heard and read ? A. How is that ? Q. Is the opinion that you have formed a conditional or absolute one; that is to say, if the facts be as alleged, or if the evidence be as you have heard or read, then your opinion is so, and so? A. Yes, sir. Q. Is your opinion then a fixed one, or is it a loose and floating opinion? A. Yes, sir, until further evidence. Q. Is it an opinion or judgment of the question of the guilt or innocence, of such character as that it1 would influence your mind as a juror? A. No, sir. Q. Could you divest your mind of all previous impression or opinion and give the prisoner a fair and impartial trial according to the law and the evidence ? A. I believe I could, sir.
    Challenge for cause overruled and an exception for the prisoner.
    This juror was sworn and sat in the case.
    The prisoner’s defence rested mainly on the evidence of sixteen witnesses, who testified to his good character as a peaceable, orderly citizen.
    The jury found a verdict of guilty of murder in the first degree, and sentence was pronounced by the court. The prisoner took this writ of error, assigning for error, as above set forth, the overruling of his challenges to jurors for cause; the admission of the testimony of witnesses to declarations of the deceased as dying declarations made by the deceased at a time when, as appeared by the evidence of Squire Lukehart, he had some expectation of recovery; and the omission of the court to direct the attention of the jury to the fact that part of such testimony was afterwards stricken out, and should be disregarded; and the refusal of the court to strike out all evidence under the name of dying declarations, except that contained in the written paper.

      Silas M. Glarh and J. G. Ruffner {II. K. Sloan with them), for the plaintiff in error.
    — Our challenges for cause were improperly overruled. A juror, who has simply read newspaper statements, or heard unofficial rumors, from which he has formed only an impression, which he swears will not affect his impartiality, is competent. Rut if he has formed a decided opinion from authentic sources, such as having been a grand juror or having read the testimony taken before the coroner’s jury, or upon a previous trial, then he is not competent, even though he says he thinks he can give an impartial verdict on the evidence. The law on this point, as settled by recent authorities in Pennsylvania, may be summarized as follows :
    1. If the proposed juror has a fixed opinion, derived from curvy source, he is incompetent.
    2. If he has a mere opinion, derived from unauthentic sources, which, he says, will not affect his judgment, he is competent.
    3. If he has derived from authentic sources a strong opinion, based on the same, or similar, testimony as will be given on the trial, he is not competent.
    4. After a juror has testified fully to facts, which disqualify, him under the above definition, he cannot, nnder a leading examination of counsel, swear himself competent again: Staup v. Commonwealth, 24 P. F. Smith 458; O’Mara and Irwin v. Commonwealth, 20 P. F. Smith 424; Ortwein v. Commonwealth, 26 P. F. Smith, 415; Curley v. Commonwealth, 3 Norris 151.
    In this case the objectionable jurors had formed strong opinions, based on reading the full reports of testimony taken at the coroner’s inquest, which was, in all material respects, substantially the same as that produced on the trial.
    The juror, Joseph Atkinson (who was sworn and sat in the ease), testified: “ I thought by the testimony that I read that it was rather dark on the prisoner’s side. Q. Did you come to a conclusion in your mind without stating what that conclusion was % A. Weil, yes. Q. Would it require evidence to remove the opinion which you have on the subject 1 A. Certainly it would. Q. As a juror you would start out with the opinion that you entertained, and unless the evidence disproved it you would retain that opinion? A. Yes, sir. Q. Your judgment will be somewhat affected by the opinion that you have entertained ? A. Until contradictory testimony was offered. Q. Would this impression in the slightest degree influence your judgment as a juror when you heard the evidence in the case? A. Well, if the same evidence was given here that was given at the coroner’s I do not know what effect that would have; it would take pretty strong evidence, and I could not say. Q. Is your opinion a fixed one, or is it a loose and floating opinion ? A. Yes, sir [fixed], until further evidence. Q. Could you divest your mind of all previous impression or opinion and give the prisoner a fair and impartial trial according to the law and the evidence ? A. I believe I could, sir.” Challenge for cause overruled.
    We submit that no man who has formed such an opinion as is here indicated, based upon sworn testimony taken in a legal proceeding before a judicial officer, is competent, psychologically, to say that he can divest himself at will of its influence, so that he can enter upon the investigation of the prisoner’s guilt or innocence, and form a new and impartial judgment, unaffected by his previous state of mind, and based solely upon the evidence to be given on the trial. In Ortwein’s case, Agnbw, C. J., speaking of the weight to he attached to coroner’s inquests, as affecting a public opinion, in which a juror probably participates, remarks: “We know the looseness with which these investigations are generally conducted, especially since the law permitting them to bo bad before justices of the peace in lieu of the coroner.” But this remark does not apply to this case, where the inquest was held by the coroner in person and the jury wras composed of prominent citizens.
    [Siiarswood, C. J. Were the prisoner’s peremptory challenges exhausted when the court overruled his challenge for cause to the juror Atkinson ?]
    No, but wo could not afford to exhaust our peremptory challenges at that stage of the case, in cases where we had a right to challenge for cause. If we had such right, the court was hound to grant it, and refusal was error. A prisoner’s right to twenty peremptory challenges cannot he so abridged.
    The assignments of error relating to evidence of dying declarations should be sustained: Kilpatrick v. Commonwealth, 7 Casey 215 ; Kehoe v. Commonwealth, 4 Norris 127 ; Del. & Hudson Canal Co. v. Barnes, 7 Casey 193; Albert v. Miller, 7 W. N. C. 477 ; Bailroad Co. v. Decker, 1 Norris 119 ; Zell v. Commonwealth, 13 Norris 258; Bex v. Beason and Tranter, 1 Strange 499; Meyers v. Commonwealth, 2 Norris 131 and 132.

      Harry White (with him M. C. Watson, district-attorney, and Joseph M. Thompson), for the defendant in error. —
    The testimony of each juror who was objected to, considered in its entirety, will show that the overruling of the prisoner’s challenges for cause fell within the principles established in Ortwein’s case and the other decisions of this court, cited by plaintiff in error. Moreover the prisoner cannot complain of being forced to peremptory challenges, if his peremptory challenges were unexhausted when the panel was filled. Krebs v. State, 8 Tex. App. 1. The record shows but eighteen peremptory challenges altogether.
    It being clear from the testimony that the deceased at the time of making his dying declarations was convinced that death was imminent, the mere inquiring about the effect of the will “if he should get well,” docs not render the declarations inadmissible : Rex v. Bonner, 6 C. & P. 386; 1 East, P. C. 385 ; Kilpatrick v. Commonwealth, 7 Casey 215 ; R. v. Bernadotti, 11 Cox C. O. 316 ; R. v. Craven, Lewis’s C. C. 77, 78.

      “ If a dying declaration was reduced to writing when made, it is not competent for the prosecution to prove it by parol without accounting for the production of the writing; but if the deceased made the declaration on several occasions, the fact that it was reduced to writing on one occasion; does not preclude parol evidence of the unwritten declaration on the other occasions:” Krebs v. State, 8 Texas App. 1; Woodcock’s Case, 2 Leach 566; Rex v. Tranter, 1 Strange 500; State v. Sullivan, 51 Iowa 112; Wharton’s Criminal Evidence, 295.
   Mr. Justice Paxson

delivered the opinion of the court, November 14th 1881.

The first six assignments allege that the court below erred in overruling the prisoner’s challenges for cause to the jurors who are respectively named in said assignments.

As all of these challenges rest upon the same principle, it will be sufficient to discuss one of them. I have selected that of the juror John Phillips, which is believed to embody all of the objections made to either of the others.

The juror had stated on his voir dire that he had formed an opinion ; that he believed the prisoner guilty. The prisoner’s counsel then asked him this question: “ That was your deliberate conviction from what you read?” Answer. Yes, sir, that was from what I read.” The juror then proceeded to say that it would require evidence to remove that conviction from his mind, and that to this extent his judgment as a juror would be affected.

Prima facie this would disqualify the juror. A “ deliberate conviction” is the equivalent of a “fixed opinion,” which, according to the modern authorities, is the test: Staup v. Commonwealth, 24 P. F. Smith 458; O’Hara v. Commonwealth, 25 Id. 424; Ortwein v. Commonwealth, 26 Id. 414. It is to be observed, however, that the foregoing statement of the juror was in response to leading questions. The words were suggested by the prisoner’s counsel. It is true he adopted them, hut it is only fair to the juror and to the court below to turn to the cross-examination to see what he really meant when he answered the questions referred to in the affirmative. We there find the following: “ Q. Have yon any deliberate, fixed opinion about this case ? A. Nothing more than from what I read. Q. Have you anything moi’e than an impression ? A. No, sir. Q. You liaye no such impression as would not yield to the evidence in the case ? A. No, Sir. Q. Could youthen act as an impartial juror between the Commonwealth and the defendant? A. It would be owing to the testimony. Q. Your verdict would be according to the testimony? A. Yes, sir.” It will thus be seen that his cross-examination dispels the idea of his having a fixed deliberate opinion, and explains and qualifies his previous statement. If it had appeared upon his cross-examination that the juror intended upon his examination in chief to say that he had a fixed opinion, he would have been incompetent. He would have put himself outside of the jury-box so far as the trial of this case is concerned. Where it clearly appears that a juror has formed a fixed opinion as to the prisoner’s guilt, lie should not be permitted to say that he can act impartially. He may honestly think so, but the prisoner should not to be subjected to such a risk. Jurors arc but men, and are not perhaps above the average citizen either in intelligence or mental self-control, and may be affected by a previously formed fixed opinion without intending or even knowing it. Eesides, few jurors are willing to acknowledge publicly that they cannot act impartially. The law wisely delivers the accused from such a peril.

Of the remaining jurors it is sufficient to say, briefly, that Frank Fleming expressed no fixed opinion ; Jacob Lutz said he had not a fixed opinion; Jacob Wilhelm said he had formed a conclusion or deliberate judgment, but the words were suggested by a leading question, and he explains, upon cross examination, that it was nothing more than an “ impression upon his mind ” made by reading the accounts of the transaction in the newspapers; John Patterson said he had come to a conclusion, but that it was a mere floating impression formed from wbat he bad read; while Joseph Atkinson, the remaining juror, both upon his examination in chief and cross-examination, denied having formed a fixed opinion. Each of the jurors stated that the opinion formed was not of such a character as would influence his mind as a juror, and that he could and would give the prisoner an impartial trial. That the impressions formed would require some evidence to remove is not material. Impressions formed upon the mind necessarily remain until something occurs to remove them. This is a law of our nature, and cannot be changed by human agency. As was said in Ortwein v. Commonwealth, supra, “ That evidence would be required to change their first impressions has but little weight. Such must always be the fact even in case of slight impressions or loose opinions. An impression once formed necessarily exists until something else changes it.”

It was urged, however, that inasmuch as the opinions of the jurors were in part formed by reading the testimony taken before the coroner’s jury, the case comes within Staup v. Commonwealth, supra, where it was held that opinions formed from reading the evidence upon a former trial are more to be regarded than those which are merely based upon rumor, or upon newspaper accounts. But in Ortwein v. Commonwealth, a distinction was taken between a previous trial and a healing before the coroner. A juror, who has attended a previous trial, or who has read the evidence delivered thereat, is in possession of the whole case, both what the Commonwealth alleges and what the prisoner offers by way of defence. An opinion formed from such knowledge excludes the idea of impartiality, and it would be perilous to a prisoner to allow such a juror to be sworn in the case. This is not true, to an equal degree, with preliminary examinations. They are in no sense a trial, but rather an inquiry into probable cause. As a general rule such examinations are conducted iu a loose manner, but a small part of the Commonwealth’s testimony given, and none on the part of the person accused. It would be going very far to extend the principle of Staup v. Commonwealth to any preliminary examination whatever. The judge who tries the cause has no knowledge of such examination, or of what evidence was offered thereat, nor can he know if it will even resemble that which is about to be offered upon the trial. It would be a fruitless proceeding for the court below to go into an examination of the character of the evidence offered before a coroner or committing magistrate, to test the competency of a juror.

The true rule, deducible from the authorities, in regard to the competency of jurors, is as follows:

1. Where the juror entertains a fixed or deliberate opinion, no matter how formed, of the prisoner’s guilt, he is incompetent ; and his belief that he can try the prisoner impartially will not remove the disqualification.

2. Where the juror has formed an opinion from hearing or reading the evidence upon a former trial, he is incompetent, even if the opinion thus formed does not come up to the standard of a fixed opinion.

3. A mere opinion or impression, which is not fixed, and which is not based upon the evidence of a former trial, does not disqualify, provided the juror can act impartially, and render a verdict upon the evidence and upon that alone, uninfluenced by such previously formed opinion or impression.

Close questions in regard to the competency of jurors may bo frequently avoided by standing the juror aside. In such cases he is not called again until the panel is exhausted, which, in many instances, docs not occur.

The publication of the evidence given at preliminary examinations in important criminal cases often seriously embarrasses the administration o f justice. While such publications are eagerly sought for and read, they never benefit the community, and are often productive of much harm in various ways. It is a matter worthy the consideration of the legislative department of the government whether the publication of the evidence in criminal cases should not be altogether prohibited by law.

The seventh assignment is without merit. There was no necessity of striking out the testimony of Thomas Lukehart. There is nothing in the case to show that when Robert Allison made the declaration to the witness he did not expect to die. Lie was mortally wounded. Ilis physicians had informed him there was no hope, and that he must prepare for death. He said he knew it, and told all with whom he conversed upon the subject that he would die from his injuries. There is nothing to contradict this; and the remark by the deceased to the witness, when his will was being prepared, that if he got well the will would amount nothing, does not of itself, in the face of the evidence, disclose any expectation of his recovery. The remark was perhaps natural, but altogether unimportant. What has been said under this head covers also the eighth and ninth assignments.

The tenth, and last, assignment alleges error in not striking out all the oral evidence of the dying declarations of the deceased, upon the ground that the written paper offered in evidence as dying declarations excluded such oral evidence. We see no error in this. The evidence referred to was properly received, and the paper- in question cannot have the effect claimed for it. If objected to it would not have been admissible. It was but a statement of what the deceased said as to the cause of his death, reduced to writing by a person who heard it. The paper was not signed by the deceased, nor does it appear to have been read to him, or that he assented to its correctness. It might have been used by the person who wrote it to refresh his memory. Beyond this it had no value.

We find no error in this record.

The judgment is affirmed, and it is ordered that the record be remitted to the court below for the purpose of execution.

Merour, Justice, dissents, “as the jurors held opinions so strongly fixed as to disqualify them under Staup v. Commonwealth.”


source: Caselaw Access Project

author: Mr. Justice Trunkey

license: Public Domain

text:
    Rumberger versus Golden.
    The payee of a note payable at a time certain with interest agreed with the maker prior to maturity that the time of payment should be extended, the note to continue to bear interest at the same rate originally fixed. Held, that the agreement being without consideration was .nudum pactum and could not be set up by the maker as a defence to an action on the note.
    October 27th 1881.
    Before Sharswood, C. J., Merour, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Armstrong cov/nty: Of October and November Term 1881. No. 215.
    Assumpsit, brought June 29th 1880, by William F. Rumberger and Mary, his wife, in her right, against Edward S. Golden, upon the following due-bill:—
    “ Borrowed of Mrs. Mary Ann Rumberger thirty-five hundred dollars, payable in one year, with interest from date, June 1st 1877.
    $3500. E. S. Golden.”
    The plaintiff’s affidavit of claim, filed with the copy, claimed the amount of the due-bill, with interest, less the sums of $1,000 and $1,200 “ paid on order to E. F. Rumberger,” and two payments of interest of $75 each, which were admitted^as credits, leaving the balance claimed, $1,787.50.
    Tire defendant filed an affidavit and supplemental affidavit of defence, averring (1.) That he borrowed the money, and gave the note at the express request of Mrs. Mary A. Rumberger, in her husband’s presence, she stating that her husband would thereafter act as her agent. (2.) That soon after the note became due defendant saw Wm. E. Rumberger, the husband, and asked him to bring the note to him that he might pay it; he replied he would see his wife and let defendant know if she wanted the money. A short time afterwards he met defendant and told him that11 Mrs. Rumberger did not want the money; that the bank and the commissioners would not pay six per cent, interest; that he and liis wife wanted defendant to keep the money, and that if he (defendant) would pay six per cent, interest he should ha,ve the money for ten years from the date of the original loan, and upon those terms alone defendant agreed to retain the money, and it is not, therefore, due and payable.” The defendant denied that he liad paid, or allowed any application of payments, on account of the said note, and averred that the payments of $1,000 and $1,200 credited by the plaintiff were not paid on the note in suit, but upon another account.
    The plaintiff took a rule to show cause why judgment should not be entered for want of a sufficient affidavit of defence, which rule the court discharged, whereupon the plaintiffs took this writ of error, assigning for error the order of the court discharging the said rule.

      Barton de Son and J. Ml. Hunter, for the plaintiffs in error. —
    There was no consideration for the alleged agreement of extension; it was, therefore, nudum pactum: Partridge v. Partridge, 2 Wright 78; Campbell v. Daly, 25 Leg. Lit. 124; .Blackburn v. Ormsby, o Wright 97; Hartman v. Danner, 24 P. F. Smith 36 ; Shaffer v. Clark, 9 Norris, 94.

      W. B. Patton and J. P. Colter, for the defendant in error. —
    The advantage to Mrs. Rumberger that the defendant would pay the full legal rate of interest, which was above the market rate, and more than she could get from any one else, was a sufficient consideration to support the new contract to extend the time of payment. A very slight advantage to one party, or a trifling inconvenience to the other, is sufficient consideration to support a contract. The case is not ruled by Partridge v. Partridge, as contended. There the rate of interest was fixed by the mortgage, and it was not shown that the market rate was less, nor that the debtor had offered to pay the debt. In Hartman <o. Danner, cited on the other side, Sharswoot>, J., says: “ It may be, that when there is a contract to pay interest for a specified period on a debt already due, so that the debtor, without the consent of the creditor, is thereby precluded from paying the debt and interest until the term expires, there is an appreciable benefit to the creditor as well as an injury to the debtor.” Such agreement enabled each party to accomplish what each may be assumed to have desired, viz.: a further investment for a definite period at an advantageous rate of interest for the creditor, and an extension of credit for the same time for the debtor. The consideration was mutual and sufficient, and the legal effect of the agreement was to disable the creditor from enforcing collection, and the debtor from making payment, until the expiration of the period stipulated : Chute v. Pattee, 37 Maine 102; Smith v. House, 22 Pittsburgh Leg. Jour. 65 ; Manufacturers & Mechanics Bank v. Bank of Penna., 7 W. & S. 335 ; Harlan v. Harlan, 8 Harris 303 ; Carrier and Baum v. Dilworth, 9 P. E. Smith 406 ; Wilgus v. Whitehead, 8 Norris 133 ; McNish v. Reynolds, 10 W. N. C. 26.
   Mr. Justice Trunkey

delivered the opinion of the court, November 14th 1881.

Shortly after the note became due the parties agreed that the maker should have the money for ten years from the date of the original loan, June 1st, 1877, at six per centum interest. The note had been and was bearing the same rate. The maker wanted to pay it; the holder wanted him to keep the money, because she could not loan it to the bank or commissioners at that rate, and their negotiations resulted in the agreement for extension of time for payment. What was the consideration in this arrangement? It has been decided, none at all. Partridge v. Partridge, 2 Wr. 78. In that case, before the debt became due, the parties agreed that the time of payment should be extended to certain dates, the money to bear interest at the rate of six per centum per annum, and when due the debtor was to deposit it in specie, in a bank in Pittsburgh, and send the certificate to the creditor, who resided in Ohio. This was held to be nudum pactum, for it was already the contract relation of the parties. Having been made before the debt was due, it was deemed of like effect as if made after, though in many cases a contract m ade before, would be binding, which would not, if made after; as where a creditor, in consideration of the payment of interest in advance, agrees, before the debt has become due, to extend the time for payment.

Payment of usury, after the maturity of a note, is a payment which may be applied on the debt, which payment the debtor was under obligation to make, and therefore is not a consideration for a contract; but payment of part of a debt, before due, is a consideration sufficient to support a contract to give time: Hartman v. Danner, 24 P. F. S. 36. Where lawful interest, together with usurious, was paid on a debt past due, it was not a consideration for a new contract as to time of payment of the debt: Shaffer v. Clark, 9 Nor. 94. These cases rest on a similar principle as Partridge v. Partridge, supra, namely, that a promise to pay the legal rate of interest made before a debt becomes due, or after, or a part payment of an overdue debt, is not a good consideration for a contract to forbear to sue.

The cases relied on by the defendant do not apply to a loan or obligation for the payment of money. When the time in a contract for the delivery and purchase of goods, before breach, is extended, the mutual promises to deliver and accept and pay, are sufficient consideration for a new contract: Carrier v. Dilworth, 9 P. F. S. 406; McNish v. Reynolds, 10 W. N. C. 26. So, when there is a lease by the year, and before the end of the year the lessor and lessee agree to change the time of payment of tiie rent from the beginning to the end of the month for the next year, the new agreement is valid: Wilgus v. Whitehead, 8 Nor. 131. In these and similar cases the change involves some advantage to one party or disadvantage to the other; and often, if such new agreement were void, one party could mislead the other into a breach of his contract, greatly to his injury.

Wo are of opinion that the defendant’s affidavits set out no legal defence and are insufficient.

The record is remitted with directions to the court below to enter judgment against the defendant for such sum as to right and justice may belong, unless other legal or equitable cause be shown to the court why such judgment should not be entered.


author: Mr. Justice Mercer

text:
    Williams versus Irwin.
    1. In an equitable ejectment to enforce the payment of purchase-money, where the defendant Í3 some person other than the vendee, it is incumbent upon the plaintiff to prove that such defendant entered into possession under the vendee.
    3. A. sold a tract of land by articles of agreement to B. B. leased the land to various tenants and afterwards died. O. brought an action of ejectment against said tenants, recovered judgment and took possession of the land. Subsequently he obtained a quit-claim deed from B.’s heirs. A. having afterwards brought an action of equitable ejectment against O. to enforce the payment of purchase-money, and proved the above facts, Held, that the evidence indicated a title in C. hostile to B. and not under him, and that therefore plaintiff was not entitled to recover.
    3. In the above caso, A., in oi’der to prove title in himself, gave in evidence a judgment against one S.; an execution issued thereon, a sheriff’s sale of the land in question as the property of S., and a sheriff’s deed therefor to A. He further proved that S. had lived on the land and built a house thereon, but failed to prove title in S. Held, that the evidence failed to show title in the plaintiff supeiior to that of defendant, and that hence a nonsuit was properly awarded.
    October 27th 1881.
    Before Shakswood, O. J., Mbbcub, Gob-don, Paxson, Tbunkev, Stebbett and Green, JJ.
    Error to the Court of Common Pleas of Armstrong county : Of October and November Term 1881, No. 181.

      This was an equitable ejectment, brought in August, 1860, by Thomas Williams against Hugh Donaldson, Jonathan Grinder and Mrs. Joseph Jarvis, to enforce payment of the purchase money of four lots and a building in the borough of Freeport, under articles of agreement dated July 12th 1841, whereby the said Thomas Williams agreed to sell said premises to one Joseph Wilson, in consideration of $2,200, of which amount $200 was paid on the execution of the agreement, and the balance was to be paid in-five annual instalments of $400, with interest. Wilson took immediate possession, and for a number of years occupied the premises as a tannery. He afterwards rented the premises to the defendants, Hugh Donaldson and Joseph Grinder, who sublet a part to Mrs. Jarvis. He then moved out of the county, and died sometime prior to 1849.
    The writ in this case was served August 18th 1860, on the defendants Donaldson et ah, and on March 18th 1861, judgment was entered for want of an appearance.
    In 1866, one P. S. Weaver brought an ejectment against Donaldson et ah, recovered judgment and obtained possession of said premises under a claim of title (as stated by defendant’s counsel) paramount to that of Williams. On August 10th 1868, Weaver obtained a quit-claim deed from the heirs of Joseph Wilson, for the consideration of $500. This deed was recorded March 18th 1869. Weaver put one Miller McRae in possession as his tenant.
    On December 13th 1869, counsel for the plaintiff in this case moved to strike off the judgment entered by default, in 1861, against Donaldson et al. This motion was dismissed in 1872, but was afterwards, in 1876, reinstated, and on March 6th 1876, the court entered an order striking off the said judgment. In May, 1876, the death of the plaintiff, Thomas Williams, was suggested, and his administrators, Sarah D. Williams and Thomas Williams, Jr., were substituted as plaintiffs.
    In June 1876, the plaintiffs issued an alias summons in ejectment, and caused it to be served on P. S. Weaver and his tenant Miller McRae, and ruled- them to plead. Weaver, protesting that he was not in possession at the time the suit was brouglrt and the writ served, and that he should not be a party to this suit, pleaded not guilty, and that Donaldson and the other defendants (except McRae) are not in possession, having been ousted by him in the above mentioned ejectment, before the striking off of the judgment in this case. McRae pleaded not guilty, under the like protest. Subsequently the deaths of all the defendants, except Weaver and McRae, were suggested, and Weaver having been declared a bankrupt, his assignee in bankruptcy, Isaac Irwin, was substituted as sole defendant.
    The case was called for trial February 9th 1880, before Bra-din, P. J., and the jury was sworn as to Thomas Williams, administrator of Thomas Williams, deceased, plaintiff, and Miller McRae and Isaac Irwin, assignee in bankruptcy of P. S. Weaver, defendants. The plaintiff put in evidence the articles of agreement of 1841, between Thomas Williams, Sr., and Joseph Wilson, and claimed that Weaver’s title was derived from Wilson. In support of this claim, they offered in evidence the deed of August 10th 1868, from the heirs of Joseph Wilson to P. S. Weaver. Objected to as irrelevant, being dated after the commencement of this suit. By the Court. — “We cannot receive this testimony for that purpose; it not being proposed to follow it by any admission on the part of P. S. Weaver that he proposed to pay the purchase money to Williams.” Objection sustained. Exception.
    The plaintiff put in evidence, under objection as irrelevant, the record of a judgment, No. 131, December term 1837, Thomas Williams v. Simon Snyder, followed by an execution under which the premises in question were sold at sheriff’s sale to Thomas Williams (the plaintiff), and a sheriff’s deed acknowledged to him therefor. Title was not shown, however, in Snyder.
    The court entered a compulsory nonsuit, filing the following order
    “1880, February 10th. After hearing, the court, being of the opinion that the alias summons in ejectment (served on Peter Weaver sixteen years after the original summons was issued and served on original defendants) was irregular.
    “ And that if the original action by Thomas Williams against Hugh Donaldson, Jonathan Grinder and Mrs. Joseph Jarvis, in which judgment wras taken by default in March 1861, and stricken off in March 1876, on motion of plaintiff, was intended, as is claimed to be, an action to enforce payment of purchase money, the same cannot be sustained' as such for the reason that the heirs and legal representatives of the vendee, Wilson (who was dead before suit was brought), were not made parties thereto.
    “ And if the said action is to be sustained as a possessory action at common law, then the proper parties have not been substituted as plaintiffs, and the striking off the judgment by default was unnecessary and irregular.
    “We direct a compulsory nonsuit to be entered against the plaintiffs as the case now stands on the record, and in which the jury was sworn, Thomas Williams, administrator v. Peter S. Weaver’s assignee; and entertain a motion to take off non-suit.”
    Subsequently the court entered the following order:—
    1880, May 22d, case called. Mr. Gilpin declines to argue case for plaintiff, Mr. Barclay does not appear, and the court being of the opinion that the court had no power to open a judgment by‘default in ejectment, on motion of plaintiff, after the lapse of eight years, at which time the motion was first made, or after fifteen years when the order opening the judgment was actually made, and that said order and subsequent proceedings were irregular and unauthorized by law, do refuse the motion, and exception noted by the court.
    The plaintiff thereupon took this writ of errdr, assigning for error the action of the court in entering the nonsuit and in refusing to take it off.

      Demid Barden/, for the plaintiff in error. —
    In bringing the action, and taking judgment by default, the plaintiff’s attorney believed that Donaldson and the other defendants in possession represented Wilson’s title. In this he was mistaken in fact, they being only tenants under Wilson. When he discovered that Weaver had purchased Wilson’s title from his heirs he rightly moved to strike off the judgment against Donaldson et al., and the court rightly .granted the motion. Weaver, as terre-tenant, was entitled to have the judgment opened, and he suffered no injury by the plaintiff’s action. Where a plaintiff has been injured by the entry of a judgment in his favor by mistake, he may move to strike it off. Equity will relieve in such a case: Gross v. Leber, 11 Wr. 520; Reigel v. Wilson, 10 P. F. Smith 394. Even a third person, not a party to the suit, whose interests are affected by a judgment, may have it opened: Brown v. Simpson, 2 Watts 239. The Supreme Court will, for cause shown, reverse a judgment in favor of plaintiff below on a writ of error taken by him : O’Donnell v. Allegheny Yalley R. R. Co., 14 Wr. 490. The judgment, when stricken off, ceased to have any existence. Tlie action of the court was res adjudicata, and the court could not reverse its former action in this collateral action. Weaver was properly made a defendant in the alias summons, and as he represented Wilson’s title, under his deed from Wilson’s heirs, he was bound to pay the residue of the purchase money under the articles of agreement with Wilson, or give up the land. He mild not escape from the position in which his deed placed him, and if he set up any equitable defence he must show affirmatively such a state of facts as would authorize a chancellor to interfere by injunction : Wain v. Smith, 1 Phila. 362. Lapse of time for more than twenty-one years will not enable a vendee, under articles of agreement, or those claiming under him, to resist payment of the purchase money: Congregation v. Miles, 4 Watts 146.

      Levi Bwd Duff, for the defendant in error.
   Mr. Justice Mercer

delivered the opinion of the court, January 3d 1882.

This was an action of ejectment. The errors assigned are the entering a compulsory nonsuit, and refusing to take it off.

The summons issued in 1860, in favor of Thomas Williams, against three defendants, who were duly served. In March 1861 judgment was taken against them for want of an appearance. In 1873 the plaintiff obtained a rule to show cause why the judgment should not be stricken off. In March 1876 this rule was made absolute. Soon thereafter the death of the plaintiff was suggested, and the names of his administrators substituted. An alias summons issued, and in June following was served on Weaver and his tenant, Mcltae. Weaver, under protest that he was not in possession of the premises, either by himself or tenant, at the time of the service of the writ, and that he should not be made a party to the suit, or bis rights affected thereby, pleaded not guilty, and MeBae did the same. Before the case came on for trial all the original defendants died, Weaver had been decreed a bankrupt, and Irwin appointed Ms assignee. The jury was sworn and cause tried against McNae, and Irwin, assignee in bankruptcy of Weaver, as sole defendants.

On the trial the main reliance of the plaintiffs was on an article of agreement entered into by one Joseph Wilson with Thomas W illiams in 1841; but they gave no evidence that Weaver entered into possession under Wilson. On the contrary Weaver recovered by ejectment against tbe tenants of Wilson six years after tliis suit was commenced, and as the evidence indicates on a title hostile to Wilson’s. It is true evidence was offered by tbe plaintiffs for the alleged purpose of showing that Weaver claimed under Wilson; hut it was rejected by the court, and there is no assignment of error to this rejection. The correctness of the judgment must then rest solely on the evidence received.

Having failed to prove that Weaver entered under the title of Wilson, the only other course for the plaintiffs was to establish a title in Thomas Williams. This they wholly failed to do. They gave in evidence a judgment against one Simon Snyder, an execution thereon, and a sale of the land and deed to Williams. They did not give evidence of any title in Snyder, nor did any witness testify that Snyder ever claimed to own the land. Snyder had moved away from the neighborhood, and was not called as a witness. It was not shown whether he was living or dead. It appeared that Snyder lived on the premises and operated the tannery thereon for several years, and built a house which he occupied. No evidence was given showing under what right or claim he entered or continued in possession, nor whether all the improvements he made were not more than compensated by his use of the premises. The purchase of Williams gave him a right to the possession of Snyder. Under that right he agreed to sell to Wilson who put his tenants in possession. Weaver, having recovered by legal proceedings adverse to that title, can retain possession against the plaintiffs until they show a superior title in themselves. This they wholly failed to establish, and the learned judge committed no error in taking the case from the jury.

Judgment affirmed.


author: Mr, Justice Trunkey

text:
    Borlin, Sheriff, et al. versus Commonwealth ex rel. Hillis.
    1. The rules of court and local statutes throughout this Commonwealth authorizing the entry of judgment for want of an affidavit of defence in actions upon recognizances, judgments, mortgages, bonds, etc., have always been limited in their application to cases where actions are brought upon obligations or contracts for the payment of a sum certain. They are not held to apply in actions for torts, nor in actions upon contracts for the payment of an uncertain sum, or where there is no standard by which to liquidate the judgment.
    3. The rule of court of Westmoreland county, which provides, inter alia, that in actions on recognizances the plaintiff shall, in case of the defendant’s default in filing an affidavit of defence, be entitled to judgment, has no application in the case of an action upon the official recognizance of a sheriff for a breach of his official duty.
    3. Whether the courts have power to make rules which would apply in such case, not decided.
    October 27th 1881.
    Before Sharswood, O. J., Merour, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Westmoreland county: Of October and November Term 1881, No. 72.
    Scire facias by the Commonwealth of Pennsylvania at the instance of William Hillis against James Borlin, sheriff, William Brisbine and others, sureties, sur official recognizance of said sheriff for $25,000, the condition of which was as follows : “ Upon condition that if yon, J ames Borlin, shall, and do, without delay and according to law, well and truly serve and execute all writs and process of the Commonwealth of Pennsylvania to you directed, and shall and do, from time to time, upon request to you for that purpose made, well and truly pay or cause to be paid to the several suitors and parties interested in tlie execution of such writs and process; their lawful attorneys, factors, agents or assigns, all and every sum and sums of money to them respectively belonging, which shall come to your hands, and shall and do, from time to time, and all times during your continuance in the office of sheriff of the county of Westmoreland, well and faithfully execute and perform all and singular the trusts and duties to the said office lawfully appertaining, then this recognizance to be void, or else to be and remain in full force and virtue.”
    The writ was directed to the coroner and by him duly served on the defendants, and an appearance was entered for them. The plaintiff assigned as breach the non-payment by the said sheriff of certain judgments marked to the use of tlie plaintiff Iiillis due and payable out of a fund in the sheriff’s hands, arising from the sale of certain real estate.
    On the third Saturday after the return day, no affidavit of defence having been filed, the prothonotary, in pursuance of an order of the plaintiff’s attorney filed, entered judgment in favor of tlie plaintiff against the defendants by default for want of an affidavit of defence, sec. reg., for 81,924.99.
    The rule of court of Westmoreland county, relating to judgments for want of an affidavit of defence, is as follows :
    Rule No. 10. “ In actions on recognizances, judgments, mortgages, liens of mechanics and material-men, municipal claims, transcripts from the Orphans’ Court, policies of insurance, book accounts, bonds, bills, notes and other instruments of writing for the payment of money, either express or implied, and whether the same be in writing or not, and in appeals from the judgments of justices of the peace, if the plaintiff shall file on or before the return day of the writ, with his declaration or statement, or in cases of appeal on or before tlie first day of the term to wliich tlie appeal is entered, an affidavit stating tlie amount lie verily believes to be due from tlie defendant, together with a copy of the book entries or instrument upon wliieli the suit is brought, or where the claim is not evidenced by writing, a brief, setting forth a full and detailed statement of the same, verified as aforesaid, he shall be entitled to judgment at any time on or after the third Saturday succeeding the return clay of the writ in original cases, or in appeals succeeding the first day of the term to which the appeal is entered, unless the defendant shall have previously filed an affidavit of defence, setting forth the nature and character of the same; Provided, That neither declaration, affidavits by plaintiff, nor copy of instrument, need be filed where the action is on a mortgage, mechanic’s lien, recognizance, or other record of tlie several courts of this county, but in sucli case it shall be sufficient if the plaintiff files with liis pi’83cipe or otherwise before the rerum day a proper reference to the record or place of the entry of such mortgage, mechanic’s lien, recognizance, or other record.”
    The defendant moved for a rule to show cause why the judgment should not be stricken off, on the ground that the recognizance sued on was not such an instrument as to entitle the plaintiff to take judgment for want of an affidavit of defence, which motion the court, after argument, denied, Hunter, P. J., filing the following opinion :
    “ By the 62d section of Act of 15th April, 1834, sheriffs are required to give bond and enter into recognizance. The 68th section of that act requires the recognizance to be recorded in the proper county, and by the 74th section all the real estate within the county of such sheriff, etc., shall be bound by such recognizance as effectually as by a judgment, and directs the prothonotary, as soon as the recorder certifies the recognizance to him, to enter the names of the parties thereto upon his docket in like manner as judgments. By the 4th section of Act 28th March 1803 (still in force in Commonwealth v. Raisey, 4 W. & S. 186), either an action of debt or scire facias may be instituted on a sheriff’s recognizance. '
    “By No. 10 of our Rules of Court judgment may be taken for want of affidavit of defence (after a certain time) in actions on recognizances, judgments, etc., and no declaration need be filed where the action is on mortgage, mechanics’ liens, recognizance, or other records of the several courts.”
    Now, then, here we have an Act of Assembly not only making the recognizance a lien upon real estate, but absolutely a judgment entered upon the docket, and by another act providing that a scire facias may issue, while our Rules of Court are very comprehensive and cover this very case.
    The cases relied upon by the counsel asking the rule do not rule the question here. In the first case he cites Commonwealth v. Hoffman (24 Smith, 105). The ruling was on a Dauphin County Rule of Court, by no means as comprehensive as our rule, and in Eldred v. Richardson (7 W. N, C. 130), the action was upon a property bond, where the amount to be recovered was unliquidated and undetermined..
    The motion is denied and rule refused.
    The defendants took this writ of error, asssigning for error the refusal of their motion.

      Twmey (with him Klvne and Kulms), for the plaintiffs in error. —
    By the act of March 20th 1803, a statutory remedy is provided for the sueing out of official bonds and recognizances by scire facias and section 14 directs that upon proof of damage sustained by the plaintiff, a verdict and judgment may be entered, and execution shall issue for so much only as shall be found by said verdict and judgment with costs, etc. Where a remedy is provided by an Act of Assembly, the directions of the Act must be strictly pursued: Act of March 26th 1806, § 13, re-enacted by Act of March 31st 1860, § 183, Pamph. L. 426. The scire facias in. this case was issued under the provisions of the Act of March 20th 1803, and if the rule of court authorizes the judgment to be taken in this proceeding for want of an affidavit'of defence, it is in contravention of that act. The sureties of a sheriff have the right to contest the damages (Car-mack v. Commonwealth, 5 Binney 191,192), of which right they would be debarred if this judgment is sustained.
    But the judgment is not authorized by the rule of court, the language of 'which is, “ in actions on recognizances, judgments, and other instruments of writing, for the payvnent of money P A sheriff’s recognizance is conditioned for the faithful performance of his duties, and not for the payment of money. It has been decided that such an instrument is not within the affidavit of defence rule of Dauphin county, which is very similar to our rule : Commonwealth v. Hoffman, 2 Pearson’s Decisions 148, affirmed in 24 P. F. Smith 105 ; Dauphin and Susquehanna Coal Co. v. Dasher, 1 Pearson 148.

      W. II Klingensmith, for the defendant in error. —
    The act of March 21st 1806, directing that when a remedy is provided by an Act of Assembly, its provisions must be strictly pursued, and its re-enactment in the Act of March 31st 1860, had reference to legislation in regard to crimes and penalties: Bees v. Emeriek, 6 S. & B. 286; lleport on Penal Code, note e. That a jury trial and verdict in an action on a sheriff’s bond is not an imperative requirement is shown by the fact that such a suit may be arbitrated: Gordon v. Commonwealth, 10 Watts 443.
    This case is within the terms of our rule of court, which is broader than any to be found in the reported cases, and includes all “ instruments of writing for the payment of money, either express or impliedP The court below is most competent to interpret its own rules, and the Supreme Court will not reverse for any construction given to them, which is not palpably erroneous; Wiekersliam v. Bussell, 1 P. F. Smith 71; Franks. Colhoun, 9 Id. 381: Coleman v. Nantz, 13 P. F. Smith 178; Gannon v. Fritz, 39 Id. 303.
   Mr, Justice Trunkey

delivered the opinion of the court, November 14th 1881.

James Borlin, with his sureties, entered into recognizance, in the form prescribed by statute to be given by the sheriff before he enters upon the duties of his office. Among the conditions is, that he shall well and faithfully execute and perform all and singular the trusts and duties to the said office lawfully appertaining. Another is, that he shall, from time to time, upon request, pay to the proper parties, all sums of money to them respectively belonging, which shall come to his hands in the execution of writs and process to him directed. This suit is upon the recognizance, and judgment was entered in default of an affidavit of defence. It is assigned for error that the judgment was not authorized by the rules of court.

The rule applies to actions on recognizances, judgments, mortgages, bonds and other instruments of writing for the payment of money. It is similar to rules in other districts, and to numerous local statutes authorizing judgments for like default. Put these statutes and rules, though not equally extensive in their application, have always been limited to obligations and contracts for the payment of money. They do not include actions in tort, nor an action upon a contract which is for an uncertain sum. The contract to pay may be implied, as where a man sells and delivers goods without an express agreement as to the price, in an action against the buyer the seller may aver the value, for it can be made certain.

It was said by the learned judge of the Common Pleas that the rule is very extensive and covers this case. If all recognizances are covered by it, so are all bonds and judgments. Some of each of these may be for the payment of money, and others a security for a collateral matter. One class is within the rule, and the other without. If A. and B. give their bond to 0., conditioned for the performance of a contract by B. to build a house for C., and B. fails to perform his contract, C. may recover his damages on the bond; but he cannot take judgment in default of an affidavit of defence. There is no standard by which to liqxiidate such judgment. Whatever the kind of obligation, if it be conditioned for the performance of the duty of a public officer, or of a trustee, or of an agent or clerk, or to secure the delivery of goods, or the rendering of services, it is not within the statutes or rules of court: Dauphin & S. Coal Co. v. Dasher, 1 Pearson 148; Strock v. Commonwealth, 9 Nor. 272.

In Commonwealth v. Hoffman, 24 P. F. Smith 105, it was held, in the court below, that a sheriff’s recognizance, by its very terms, is for the performance of a collateral condition, and not within the rules of court, which was affirmed, with the remark that the recognizance was not a record for the payment of money, but for the performance of collateral conditions. There the rule included records. A sheriff’s recognizance is a record, and the record was treated precisely as a recognizance, or judgment, or bond, or mortgage would have been, if conditioned for the security of gome collateral matter.

In all the rules and statutes, the several obligations therein named heretofore have been construed to mean only such as ■were for the payment of money; and, we think, the rule in Westmoreland should receive like construction. The language is similar to that used in prior statutes and rules, which had been judicially interpreted, and, therefore, is presumed to have been employed in the same sense. As the rule does not apply to an action on a sheriff’s recognizance, or upon any other instrument to secure collateral conditions, it is unnecessary to decide whether the courts have power to make rules which would include such instruments. If they have, and should exercise it, as remarked by the late Justice Woodward, in Sands v. Fritz, 3 Nor. 15, the practice of requiring affidavits of defence in such cases would seem capable of producing mischief and injustice.

Judgment reversed, and procedendo awarded.


author: Mr. Justice Sterrett

text:
    Morton versus Weaver.
    1. The record of a suit wherein judgment had been obtained for want of a plea against the administrator of a married woman, disclosed the fact that the action W’as brought to recover the price of necessaries furnished to the defendant's intestate during her lifetime, at her instance and request, for the use of herself and family. The suit was originally against the administrator alone, but the husband of the intestate was, by order of court, made a party thereto before judgment was obtained. The copy of book entries filed showed that, with a few exceptions, the articles furnished liad all been such as might be fairly classed as necessaries. Held, that the record disclosed upon its face nothing sufficient, to impeach the regularity or validity of the judgment.
    3. In an action of ejectment against the heirs of said married woman for a tract; of laud whereof she had died seised, plaintiff put in evidence the above judgment. He then offered in evidence a record, whereby it appeared that a scire facias upon said judgment had been issued against ail the said married woman’s heirs but one, and that all of said heirs thus brought in luid defended and submitted the cause to arbitrators, who had found against said heirs. Said record further showed'that this judgment being unappealed from execution had issued thereon against the premises in question, and that the same had been sold to the plaintiff. Defendants objected to the admission of this testimony on the ground that the original judgment was invalid, the articles for which suit had been brought not being necessaries. The court admitted the evidence, but instructed the jury that plaintiff was not entitled to recover the undivided share of the heir who was not brought in by scire facias. Held, that the heirs, having had a full opportunity to set up any defence that could or ought to have been made by the administrator in the original action, and having either neglected or failed in their attempt to do so, it was too late to question the validity of the judgment on the scire facias, and that therefore the evidence was rightly admitted.
    3. In the above case defendants offered to prove that the married woman had a set-off against the claim for which the original judgment had been obtained. Held, for the reasons above given, that said evidence was inadmissible and was rightly rejected.
    4. It is error to submit to the jury the question whether there has been fraud or collusion in the procurement of a judgment or a sheriff’s sale, if there be no evidence of such fraud or collusion.
    October 27th 1882.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey, Sterrett and Green, JJ.
    Error to the Court of Common Pleas of Armstrong coimty: Of October and November Term 1881. No. 177.
    Ejectment, by Peter S. Weaver against John Morton and Nancy Morton, his wife, for two lots of ground in the borough of - Freeport.
    On the trial, before Bradin, P. J., both parties claimed under Helen Johnston, wife of John Johnston, who died in 1859, seised of the premises in question.
    The plaintiff claimed as purchaser at sheriff’s sale, and offered in evidence the record of a judgment obtained by him against Mrs. Johnston’s administrator, followed by a scire facias to bring in her heirs and surviving husband, which was duly served on said parties, with the exception of one of the heirs, Hess Johnston, whose interest was one undivided fourth. Judgment was duly obtained against said heirs, an execution issued, the premises sold at sheriff’s sale to the plaintiff, and a sheriff’s deed executed to him therefor. Objected to, on the ground that the original judgment was void, having been obtained against the administrator of a married woman, on a claim for alleged necessaries procured by her in her lifetime, her husband not being joined as a co-defendant; that the record showed a large portion of the claim was not for necessaries, and being void, the judgment subsequently obtained on the scire facias was also invalid. Objection overruled; exception.
    Defendant’s counsel offered to prove by the defendant, Mrs. Nancy Morton (formerly Nancy Johnston, a daughter-in-law of Mrs. Helen Johnston, deceased, and mother of the said Hess Johnston), that in 1855, Mrs. Helen Johnston, being indebted to the plaintiff, Weaver, placed the said property in his possession to rent, as her agent, and to x’eceive tlxe rents xuxtil they should satisfy her indebtedness, and that the plaintiff did, in fact, rent it, in her name, and received a large sum for rents, being more than the amount of said indebtedness. Objected to, on the ground that the witness, being a party to the record, is incompetent to prove anything that occurx’ed in the lifetime of Mrs. Helen Jolmston, under whom both parties claim. Objection sustained; exception.
    The defendant recpiested the court to charge, in substance, that the plaintiff had not made out such a title as would entitle him to recover. The court declined the points presented, and charged, inter alia: “ We instruct you that the plaintiff has made out title to three-fourths of the premises ; but as the defendant has shown that she is the mother of Hess Jolmston (deceased), as to whose title in the property the plaintiff has shown no claim, we instruct you that your verdict should be for the plaintiff for the undivided three-fourths of the premises in dispute. The other one-fourth the defendant, Mrs. Morton, is entitled to.”
    Verdict, accordingly, for the plaintiff, as to the undivided three-fourths of the premises, and for the defendant, Nancy Morton, as to one undivided fourth, and judgment thereon. The defendants took this writ of error, assigning for error the admission in evidence of the record of the judgment of Weaver against Helen Johnston, and the scire facias thereon, and the sheriff’s deed to the plaintiff; the exclusion of the defendant’s offer of evidence; the refusal of their points, and the portion of the charge above cited.

      David Ba/rday, for the plaintiffs in error. —
    The record of the suit, by Weaver, against the administrator of Mrs. Helen Johnston, showed on its face that the judgment was void : its validity was therefore a legitimate subject of investigation. We also showed that it was procured by fraudulent collusion with Mrs. Johnston’s administrator, who was appointed at the instance of the plaintiff, Weavei*, and who, acting under the instructions of Weaver’s counsel, made no defence, and allowed' judgment to be taken by default. While a judgment, apparently regular, may not be attacked in a collateral proceeding, the rule does not apply where fraud is alleged, or the judgment is void on the record. And a judgment obtained on a scire facias, founded on a void judgment, is also void, having nothing to support it: Dorrance v. Scott, 3 Whart. 313 ; Caldwell v. Walters, 6 Har. 19, 83; Hoffer v. Wightman, 5 Watts 205. The evidence showing that Weaver was Mrs. Johnston’s agent, and as such rented the property and retained the rents, should have been admitted, to show bad faith on his part in bringing the action. The heirs can defend in ejectment on the ground of fraud : Shields v. Miltenberger, 2 liar. 18; St. Bartholomew’s Church v. Wood, 11 P. F. Smith 103 ; McOasky v. Groff, 11 Har. 326 ; Sharp v. Long, 4 Cas. 433 ; Brotherline v. Swires, 12 Wr. 68; Levick v. Brotherline, 24 P. I1. Smith, 149. Mrs. Morton was a competent witness to prove the offer of agency. Mrs. Johnston was, in no sense, “the assignoi’ of the thing or contract in action.” Weaver’s claim arose solely out of his own act, not under a sale or legal devolution of title from her. Both parties here were living, and on an equality: Waltman v. Ilerdic, 9 Norris 459.

      E. S. Golden and Jos. Buffington, for the defendant in error. —
    The judgment against the administrator of Mrs. Johnston was legal and regular. The surviving husband was not a necessary party: Davidson v. McCandlish, 19 P. E. Smith 172. Because the claim showed that some articles were included that were not necessaries does not impair the validity of the judgment. If there was a single necessary it would justify the judgment, as a foundation for a scire facias against the heirs, which differs from a scire facias to revive. The heirs who were served had full opportunity for defence, and are concluded hy the judgment on the scire facias: Chase’s Ex’r v. Burkholder, 6 rlar. 48 ; Atherton v. Atherton, 2 Barr 112; Murphy’s Appeal, 8 W. & S. 165; Benner v. Phillips, 9 W. & S. 16; Buehler v. Buffington, 7 Wr. 293; Nace v. Hollenback, 1 S. & R. 540.
   Mr. Justice Sterrett

delivered the opinion of the court, November 7th 1881.

The plaintiff below claimed under Mrs. Helen Johnston, who formerly owned the lots in controversy and died seised thereof in Í859, and, for the purpose of tracing title to himself, he gave in evidence the record of a judgment, rendered June 10th 1863, in his favor against James Cunningham, administrator of Mrs. Johnston, and also the record of a scire facias thereon to September term 1863, with notice to the 1ms-band and all the heirs at law of the decedent, except one, as to whose interest he was not permitted to recover. In the latter proceeding judgment was entered November 8th 1865, on an award of arbitrators for $1,417.34, and by virtue of an execution based thereon the lots in controversy were sold by the sheriff and conveyed to Weaver, the plaintiff below.

The admission of the records and sheriff’s deed aforesaid forms each a separate subject of complaint in the first, second and third assignments .respectively.

The record of the original judgment exhibits a suit regularly brought against the personal representative of Mrs. Johnston for necessaries sold to her when a femme covert for the use of herself and family “at her special instance and request, and upon her own responsibility, promise and engagement to pay.” The probated copy of book accounts, with the exception of a few items, is composed of articles that may fairly be classed as necessaries, and tlie claim, as shown by the record, is quite sufficient in form to charge the separate estate of a married woman. By order of court the surviving husband was added as a defendant, but the judgment, in default of a plea, was rendered against the administrator alone. There is nothing whatever upon the face of the record to impeach either the regularity or validity of the judgment, and there was, therefore, no error in admitting it in evidence as the foundation of the subsequent proceedings.

In the scire facias to bring in the heirs, we fail to discover any irregularity in the proceedings of which the plaintiffs in error have any reason to complain. One of the heirs, it is true, was omitted, hut that has inured to their benefit by limiting the recovery of the plaintiff below to the undivided three-fourths of the land in controversy. Those who were made parties to the scire facias appeared by counsel, and, in a full affidavit made by their agent, Mr. Fullerton, took defence; but, when the arbitrators awarded against them, they did not appeal, and the judgment became final and conclusive. They had a right to make any defence that could or ought to have been made by the administrator in the original action. Having either neglected to do so, or having failed in the attempt, it is now too late to question the validity of the judgment on the scire facias, and the record thereof was properly admitted.

The regularity of the execution process is not questioned, and the sheriff’s deed to the plaintiff below, having been duly acknowledged and delivered, there cannot beany valid objection to it as evidence of his title.

The fourth and fifth assignments are not sustained. Aside from the question of Mrs. Morton’s competency as a witness to prove the several matters therein mentioned, we are of opinion that the testimony was irrelevant in this case. Doubtless it would have been otherwise in the original suit, or in the scire facias and, in the affidavit of defence filed in the latter case, we find it alleged, inter alia, that the “ heirs have a just and legal set-off against the said plaintiff’s claim of about seven hundred and twenty dollars, with interest thereon for eight years, for rents of the aforesaid lots commencing in September or October, a. n. 1855.” That was the proper time and place to prove the agency of Weaver, and the alleged receipt by him of “ a large amount of rents.”

W e see no error in the answers of the learned judge to defendants’ points, covered by the sixth, seventh and eighth assignments. There was no evidence from which the jury would have been justified in finding collusion or fraud, either in the procurement of the judgments or in the sheriff’s sale, and it would have been error in the court to have submitted to them any such question. If the administrator failed to make such defence, as he should have done, in the original suit, the heirs when brought in on the scire facias had their day in court. It cannot be .presumed that the attorney who appeared for them and entered on the record of the scire facias their defence thereto, conspired with the plaintiff for the purpose of procuring a fraudulent judgment. There is no evidence of such collusion. If we were to permit judgments and other judicial proceedings to be brushed aside on naked allegations of fraud and other flimsy pretexts, titles would indeed rest upon a very insecure foundation. It is not enough to charge fraud and prove in support thereof slight circumstances of suspicion only. To be of any avail it must be clearly proved.

It follows from what has been said that there was no error in charging as complained of in the remaining assignments of error. The judgments and sheriffs sale based thereon being regular and valid, the plaintiff below was clearly entitled to recover, except as to the interest of the son who was not made a party to the scire facias.

Judgment affirmed.