text:
    CAMPBELL against KNOX.
    C. having’ sold a tract of land to which K. had a claim, executed a single bill to If. for a certain sum in discharge of his claim to the laud, to be paid out of the purchase money. And the parties agreed that each should be present when the purchase money should be paid, and receive his own part. ' If. gave notice to the purchaser not to pay his money to C. but to himself; that he was willing to take him (the purchaser) for it. The purchaser afterwards failed, and was unable to pay the money. In an action by If. against C. on the single bill, it was held that he was not entitled to recover.
    Error to the Common Pleas of Armstrong county.
    This was an action of debt upon a bond, in which Michael Campbell and Charles Campbell, executors of Charles Campbell, deceased were plaintiffs, and George Knox was defendant. The facts of the case appear so fully in the opinion of his honor, who delivered that of the court, that they need not be again stated.

      While and Stannard for plaintiffs in error.

      Fetterman for defendant in error.
   The opinion of the court was delivered by

Kennedy, J.

—This was an action of debt founded upon a sin ■ gle bill in the following words : “Know all men by these presents that I, Charles Campbell, of Indiana county, for certain considerations, am held and firmly bound to deliver unto George Knox, of Armstrong county, thirteen hundred and fifty dollars of the price of a tract of land, sold by the parties to Messrs. Whiting Co. of Pittsburg, agreeably to an article of agreement between, said parties, and I do engage that said Knox is to have the above sum clear of all incumbrances. Given under my hand and seal this 27th day of June, 181S.”

CHARLES CAMPBELL. [A. s.] Immediately under the bond, on the same paper, was written the following agreement: It is expressly agreed by the above parties, that at the payments from Whiting <§' Co. of Pittsburg, of the purchase money of a tract of land, that neither shall have power to receive any part of said money, without giving the other party sufficient notice to attend and receive their own share, and the same principle to govern if the land should be sold to any other' person. Given under our hands and seals,
CHARLES CAMPBELL, |A. .B.j GEORGE KNOX. [l. s.]

The tract of land referred to in the above single bill and agreement, was one of four tracts sold by Charles Campbell the obligor, to Whiting <§' Co. by articles of agreement. This tract was one to which Knox, the plaintiff, had a claim, by virtue of a settlement made on it by him; but Campbell had a warrant for it in the name of McLean, under which' hé likewise claimed. It was however agreed between them, that Campbell should sell it, with the three tracts to which he had titles, to Whiting 8¡- Co. and become accountable to Knox for thirteen hundred and fifty dollars for his claim under his settlement, to be paid in three equal annual instalments, in like manner as Campbell should receive the purchase money of the whole four tracts from Whiling fy Co. which was to be paid in three equal annual instalments. Upon this arrangement the bond in suit and the agreement there underwritten, were given and entered into. Whiting fy Co. afterwards failed, and became unable to pay; upon which- Henry Baldwin, Esq. succeeded them in the purchase of the four tracts of land. It was given in evidence on the part of the defendants that Knox, the plaintiff, had directed Mr. Baldivin, who was to pay the purchase money for the four tracts of land, not to pay the thirteen hundred and fifty dollars, that was coming to -him, from Charles Campbell, but to keep it in his own hands, and to pay or account to him (Knox) for it. It did not appear that Whiting fy Co.. had paid any part of the purchase money to Campbell. It way also testified on the part of the defendants below, that Knox had said that his money (speaking of - the thirteen hundred and fifty dollars,) was now safe ; that he had got Mr. Baldwin for it:— that he did not want it; that he would leave it in his hand until he wanted it; that Mr. Baldwin had offered him a tract, of land, for it, but there was too much meadow ground on it. That he would get Mr. Baldivin to buy him a particular tract of land for it; and that he had dis charged Mr. Baldwin from paying the money to Charles Campbell,: that this was repeated at two or three different times to one witness, and in substance at different times to nevera! witnesses, who were qualified and gave testimony on the part of the defendant, below. Mr. Baldwin also testified, that Knox told him not to pay the thirteen hundred and fifty dollars to Campbell, but to retain it and pay i i over to him ; thaL he mentioned this to Campbell when he came to receive and settle for the purchase money with him : that Campbell assented to it, and •agreed that Mr. Baldwin should take a credit on the article of •agreement for the thirteen hundred and fifty dollars which he agreed to pay to Knox. Campbell, as appeared from the testimony, received all or nearly all the residue of the purchase money for ■the four tracts of land of Mr. Baldwin, after deducting the thirteen hundred and fifty dollars, which Knox had forbidden him to pay to Campbell.

After the testimony was closed, the counsel for the defendants, below, requested the court to charge the jury, that if they believed that the plaintiff gave notice to the Messrs. Whiting Sy Co. and to Mr. Baldwin not to pay the money to Charles Campbell, that he cannot recover in this action, without shewing, that the money has been actually paid to said Campbell. And again, to charge the jury, that if they believed that notice was given by the plaintiff, either in person or by his agent, to the Messrs. Whiting 4' Co. and-to Mr. Baldwin, or either of them, not to pay the money now claimed to the said Charles Campbell, that the said Charles had a right to receive his share of the money without giving notice to the plaintiff of the time and place of receiving it.

The first, second, and third errors assigned, were abandoned on the argument. The remaining four errors will be connected together, as they must all be referred to the same part of the charge of the court below, which is in the following words : “ There can be no doubt from the whole testimony, that Baldwin assumed to pay that sum, thirteen hundred and fifty dollars, to the plaintiff. But there is none from which it can be reasonably inferred, that he at any time, or on any occasion, took Mr. Baldwin for the money and discharged Mr. Campbell, the only person who was under any legal obligation to pay it, on a compliance by Whiting Sy Co. with their contract, or by those who came into their place and stead. According to the deeds of Campbell to Baldioin, who succeeded to the rights of Whiting Sy Co. sooner or later, whenever that contract was carried into complete effect, Campbell thereupon became liable to pay the plaintiff the sum stipulated, whether Campbell had received the whole or a part or only what was his own share. The old man, the plaintiff, talked rashly and even indecorously on some occasions, if you believe one of the witnesses ; but even to him, so far as I recollect his testimony, there-was no direct discharge of Campbell from his contract, although he may have then' supposed Mr. Baldwin a surer mark for his money.” Again the president judge who delivered the charge of the court to the jury, therein, says, “As to the hypothetical questions, put on both sides, I deem it unnecessary to take up any time in resolving them.”

It appears to me that the court below were in error in telling the jury that there was none of the testimony from which they could reasonably infer that Knox had at any time on any occasion taken Mr. Baldwin for the money and discharged Mr. Campbell. It is obvious from the terms of the obligation and the agreements, that Campbell was not bound to pay, nor was he liable to pay the thirteen hundred and fifty dollars to Knox until he should receive it himself upon the contract which he had made or might make for the sale of the land, or at least neglected to receive it when he had it in his power to obtain it. If this is a correct exposition of the obligation and contracts between the parties, of which there can bo no doubt, it necessarily follows, that any interposition of Knox, by which he prevented Campbell from receiving the money, and obtained an agreement to have it paid directly to'himself, when he should want or call for it, was a discharge of Campbell from his obligation, not only in equity and good conscience, but in law. The court was also in error when they told the jury, that from no part of thé testimony could it be reasonably inferred that Knox took Mr. Baldwin for his money. What other inference can be drawn from his repeated declarations, if the witnesses are to be believed, that he had got Mr. Baldwin for his money : that he had now got a gentleman for his money ; was sure of it, and would leave it in his hands till he wanted it. The president judge, again referring to the testimony of the witnesses, says, “but even to him, so far as I recollect his testimony, there was no direct discharge of Campbell from his contract, although he may have then supposed Mr. Baldwin a surer mark for his money.” I do not know, perhaps, what the judge here intended by a direct discharge, but if his idea was no other than a formal release or discharge given or delivered directly to Campbell himself, he was mistaken; for an acquittance given by Knox to Mr. Campbell would have indirectly been a discharge to Campbell, and so his directing Mr. Baldwin not to pay it to Campbell, and Baldwin's declining to pay to Campbell in consequence of. this prohibition of Knox's, if true, was an indirect, but very effectual discharge of Campbell from his obligation. And although all this may have been done by Knox, under the mistaken impression that Mr. Baldwin, as the judgo said, was a surer mark for his money, yet upon his finding that he is not likely afterwards to get his money from Mr. Baldwin, ho shall not be permitted to return upon Mr. Campbell, or his estate for it. For if the testimony given on the part of the defendants below is believed, it was a course entirely of Knox’s own seeking, without any solicitation of Campbell, or ever consulting his wishes in respect to it. By his interference he caused Campbell to credit Mr. Baldwin with the thirteen hundred and fifty dollars on the agreement for the purchase of the lands; and by his forbidding Mr. Baldioin to pay any portion of this sum to Campbell, he put it out of the power of Campbell to demand or receive it. If any loss has arisen from this course which has been adopted by him, he has been the occasion of it, and must bear it. This would even be the rule if Campbell and Knox were equally innocent in bringing about the cause which has, or is likely to result in the loss ; but I do not consider them equally innocent; for if there be fault, it lies altogether at the door of Mr. Knox. I think the court below instead of charging the jury as they did, ought to have told them, that if they believed the testimony of the witnesses on the part of the defendants below, it was their duty to find a verdict in their favor. I further think, that if the court had answered correctly, the hypothetical questions of the defendant’s counsel, as the judge was pleased to call them, that they ought to have been answered in favor of the defendants below ; and that there was error therefore in the court’s declining to' answer them.

Judgment reversed and a venire de novo awarded.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    SHEWELL against MEREDITH.
    Practice, with regard to the execution of a Liberad Facias, the return by the pherifF and satisfaction of the judgment upon which it issued. Whether under certain circumstances the judgment is satisfied, is a matter of fact for the jury : and it is error if the court decide it.
    Error to Fayette county.
    This was a feigned issue to try the right to money, in which Thomas Sheioell was defendant, and William Meredith plaintiff. It was agreed that the amount in the hands of the defendant, was two hundred and eleven dollars.

      Meredith the plaintiff below, claimed the money, (being the proceeds of a property called the “Broadford,”) under a judgment-in the name of Maurice and William Wurts v. S. Id. White-hill, which had been assigned to him. This judgment was enter-, ed on the sixteenth day of January, one thousand eight hundred and nineteen, for five hundred and ninety-eight dollars and seventy-•eight cents. Afi.fa. issued to March term, one thousand eight hundred and nineteen, which was stayed. A plu. fi. fa. issued to March term, one thousand eight hundred and twenty, which was 'levied on the “Broadford” property; which, upon inquisition held, extended. A lib. fa. issued to March term, one thousand eight hundred and twenty-one, which was returned with an inquisition annexed, valuing the lands at three hundred dollars per annum ; which inquisition concludes in these words, “ which said messuage, &c. I, the said sheriff, have caused to he delivered to the said Maurice and William Wurts, to hold to them and their assigns, until the debt and damages in said writ mentioned, together with the interest thereof, be fully levied, as by the said writ I am commanded. ” On the execution docket the return is entered, —“property delivered to the plaintiff.” On the back of the lib. fa. is endorsed, “proceedings stayed by plaintiff’s attorney,” and signed “Daniel P. Lynch ;” which endorsement is erased, by a pen having been drawn over it. And the plaintiff called Daniel P. Lynch, the sheriff, who said that that was his return, and that the erasure had been made by some one else and not by him ; that he did not proceed to make an actual delivery of the property, in consequence of an arrangement between the plaintiff arad Whitehill, the defendant in the execution.

      Shewell, the defendant below, had a judgment against S. II. Whitehill, entered on the nineteenth day of January, A. D. one thousand eight hundred and twenty one, which it was admitted was entitled to the money, unless the plaintiff below, could claim it as the oldest judgment creditor.
    The defendant below, also exhibited in evidence an article of agreement between S. H. Whitehill, and Abraham Haigh and Levi Haigh, dated the tenth of November, one thousand eight hundred and twenty-one, by which Whitehill leased the said “Broad-ford” property to the said Haigh’s to the first of April following, ■ for one hundred and fifty dollars, and from that time, for the term of seven years, for the sum of three hundred dollars per annum.
    On the fifth of March, one thousand eight hundred and twenty-two, the plaintiff below took an assignment of this lease “ until the rents should pay the amount of his judgment and costs” against Whitehill. On the same lease is another endorsement in these words : “April 24th, 1823. By the consent of Mr. White-hill, -I, as attorney of Mr. Meredith, do hereby re-assign the above lease. Thomas Irwin.”
    Mr. Irwin stated, on behalf of Meredith, that there must be a mistake in the date of the re-assignment; that it was in one thou sand eight hundred and twenty-two.

      Stewart II. Whitehill, who was sworn, said, that when the lease was re-assigned to him by Mr, Irwin, it was agreed between them that ho ( Whitehill) should pay one hundred dollars a yea? until Meredith’s judgment should be satisfied.
    Some money had been collected by Meredith’s attorney under the lease, and some was paid by Whitehill under the new arrangement after the re-assignment.
    The court was requested by the defendant to instruct the jury,
    1. That after the plaintiff had proceeded to hold an inquisition on the property of Steivart II.. Whitehill, the defendant in the execution, by which the property extended, an arrangement between the plaintiff and Steivart II. Whitehill, the said defendant, by which the plaintiff got the possession of the property, by-taking an assignment of the lease, which the defendant held on his-tenants, was a satisfaction of the judgment, as against all other judgment creditors.

      2. That no subsequent arrangement between the plaintiff and S. H. Whitehill can affect other judgment creditors of S. II. Whitehill.

      3. That the inquisition held on the lib. fa. stating that the possession had been delivered to the plaintiff, and the entry to that effect on the execution docket are conclusive of the fact, as between plaintiff and other creditors, notwithstanding any mistake in the-sheriff’s return, which does not appear on record and is only proved by the sheriff.
    4. That after extent, and particularly after lib. fa. issued an arrangement between plaintiff and defendant in the execution, by which said defendant assigns to plaintiff a lease of the property levied on, until his debt is paid, is a satisfaction of plaintiff’s judgment, as far as other judgment creditors are concerned ; and no subsequent arrangement between plaintiff and defendant in the execution, will affect other creditors.
    5. That the arrangement made by plaintiff with S. II. Whilehitt on the re-assignment of the lease, by which the said S. H. White-hill, the defendant in the execution, was to retain the possession of the property and pay plaintiff one hundred dollars a year, was a satisfaction of plaintiff’s judgment.
    The court instructed the jury on the points respectively, as follows :
    1. The circumstances stated, when in fact it is proved by the sheriff that there never was a delivery of possession under the writ, and it also appears that the arrangement betweeri the plaintiff and S. H. Whitehill was distinct from, and independent of the extent, will not be a satisfaction of the judgment as against all other subsequent judgment creditors.

      2. if the assignment of the lease to the plaintiff was a satisfaction of his judgment, no subsequent agreement between him and A. H. Whitehill could affect the judgment creditors. But we haye-said. the assignment was not a satisfaction, except for so much as waf* made under the landlord’s warrant, unless made in consummation of the extent.
    3. The inquisition on the lib. fa. is not conclusive evidence that the possesssion was delivered to the plaintiff, but the sheriff is competent to prove that possession never was delivered ; that the ¡proceedings on the lib. fa. were stayed by the plaintiff’s attorney, and that the endorsement of such stay on the writ, was his return, and has been erased since the return without his knowledge or consent.
    4. The arrangement between plaintiff and $. H. Whitehitt, after extent and after lib. fa. by which a lease was assigned to plaintiff for the purpose of paying his debt, Í3 not a satisfaction of his judgment, if it appears not to have been made in pursuance of the extent; but to be distinct and independent of it, and made to enable the plaintiff to receive the rents as they became due in payment, &c. The assignment of the lease was not made until near a year after the lib. fa. was returnable. It was re-assigned to Mr. Whitehitt in about forty days ; the plaintiff having-received of the rent due, about seventy-one dollars, being the whole that could be obtained by distress. The arrangement, if not in completion of the extent, did not delay or prevent other judgment creditors from proceeding.
    5. The arrangement referred to was not a satisfaction of the judgment.
    The jury found for the plaintiff two hundred and eleven dollars and one cent.
    The following errors were assigned :
    1. The court erred in not giving a direct, precise and explicit answer to the first, second and fourth points of the defendant below.
    2. The court erred in assuming the.fact that the arrangement between plaintiff below and Whitehitt vies, not in consummation of the extent. That was a fact for the jury to decide, but the court took it from them.
    3. The court, in like manner, decides another fact; that the lease was re-assigned in about forty days — -whereas the written reassignment on the lease is dated near fourteen months after the assignment.
    4. The court erred in its instructions to the jurjr on all the points submitted by the defendant below.

      N. Ewing for the plaintiff in error,
    cited Turnpike company v. Ilendel, 11 Serg. §- Ratvle, 123. Bebec et als. v. Bank of New York, 1 Johns. 529, 548, 565. Barnet y. Wushcbaug'h} 16 Serg. 8,' R atole, 410.

      TV. Wilkins for defendant in error,
    cited Kuhn v. North el als, 10 Serg. Rawle, 399.
   Per Curiam.

The recital in the body of the inquisition, that the sheriff had delivered the premises in satisfaction of the debt, was inoperative as being no part of the return till made so by reference from the endorsement on the writ, which for that purpose ought to be in these or similar words: “ The execution of this writ appears in a certain schedule hereunto annexed,” Grayd. Forms, 249. But there was not a- spark of evidence that such a return was made. On the contrary, there was evidence, which was fairly left to the jury, that the sheriff had returned, “ The proceedings stayed by the plaintiff’s attorney;” and that this return had been subsequentty erased without an application of the officer, or the leave of the court, cannot, being the act of a spoiler, impair the legal effect of the return. The proceedings having been stayed, then, the question was, whether the judgment had been satisfied by acts of the parties in pais. The terms of the agreement which accompanied the assignment of the lease, do not appear. By the words of the assignment the interest of the judgment-creditor was to endure “till the rents should pay the amount;” and this may have been accepted as very payment, or as the means of paymentin other words, as satisfaction, or only as a collateral security, and the latter, the judgment remained a lien for the residue, credit being given for whatever the assignment had produced. But the question whether the assignment had been accepted as satisfaction, or as a collateral security, was for the jury, the evidence of the fact being collected from the terms of the assignment and the transactions appearing by the parol evidence. . But this matter of fact was peremptorily determined by the court as matter of law ; and in this there was error.

Judgment reversed and a venire de novo awarded.


author: Rogers,J.

text:
    JOHNSTON against CHAPMAN.
    Art assignment and guarantee -of a bond is an engagement of the assignor’ to pay tfie money, on the insolvency of the obligor ; provided the assignee use due diligence ' to obtain payment from the 'obligor.
    What is the due diligence which is required, is a.matter of fact for the determination • of the jury.
    An assignee cannot maintain an action- on the covenant of guarantee, against the assignor, upon proof alone of a demand of payment upon, the obligor. He must prove the insolvency of the obligor, and that he used due diligence to collect the money from him.
    Whether the assignment was made before or after the bond became due, makes no> difference : that principle is only applicable to the indorsement of negotiable paper.
    Writ of error to the Common Pleas- of Indiana county.

      Peter Yarnell executed a single bill by whieh he promised tc? pay Thomas Johnston, on the first of December, one thousand eight hundred and twenty-nine, two hundred barrels of salt. Ther payment of which, together with other single bills, was secured by a mortgage on a tract of land. Thomas Johnston on the twenty-first of July, one thousand eight hundred and twenty-eight, made th'e following assignment of this single bill to Thomas Chapmanr the plaintiff below ■: “l .do hereby assign- and guarantee the pay-ment of the within bond to Thomas Chapman, his heirs or legal representatives for value received/’ Yarnell did not reside in Pennsylvania, but Chapman made a demand of the- salt of the person who represented the obligor at the time and place when, by the agreement of the parties, it was made payable. Payment having been refused, this action on the case was brought by Chapman against Johnston on the guarantee.
    The defendant requested the court below to charge the jury —-. “ That the plaintiff could not recover, he never having attempted to enforce the collection of the single bill from Peter Yarnell and “ That the assignment of the single hill to the plaintiff was an assignment, pro tanto, of the mortgage, which secured its payment ; and. if the jury believed the mortgaged premises were ample security-for-the payment of the single bill, the plaintiff could not recover. ”
    The court answered both these propositions in the negative ; and instructed the jury, that the plaintiff was entitled to recover, upon the evidence which‘he had given.
    The same question ivas argued in this court by

      White for the plaintiff in error..
    An assignment and guarantee of a bond, is an implied undertaking by the assignor, that it is good and recoverable and the acceptance thereof by the assignee, is an implied engagement on his part that he will Use due diligence to enforce the payment by the obligor ; and such is the legal construction of the contract. Philip v
      JLston, 2 Taun. 206. Overton v. Tracey, 14 Serg. §• Rawle, 327. Gibbs v. Cannon, 9 Serg. fy Ratole, 202. Harwood v. Ramsey, 15 Serg. 8r Rawle, 34. Moakly v. Riggs, 19 Johns. 71. Reed v. Garwin, 12 Serg. Sr Razóle, 100.
    If we are right in this position, then the plaintiff cannot recover, for the proof was that the mortgaged premises were abundantly sufficient to pay the single bill. That the assignment of the single bill was an assignment pro tanto of the mortgage, were cited Green v. Hart, 1 Johns. 590. Mersereau v. Runyan, 11 John. 538. Wentz v. Dehaven, 1 Serg. 8? Razóle, 317. McCall v. Lenox, 9 Serg. 8? Razóle, 312. Betz <§* Hebner, 1 Penna. Rep. 280.

      Foster for defendant in error.
    The contract of the obligor in a bond is, that he will pay on or before a certain time, to the obligee ; the contract of the assignor Is that the obligation is good and the terms of it will be observed. A failure to pay on or before the time, is a breach of the contract of the obligor, and of course the assignor also. If, therefore, there Is a breach of the engagement by the assignor, a right of action accrues. It is not necessary to sue the debtor in order to establish a right of action against tire assignor. 3 Wheat. 154. Banlc of New York v. Livingston, 2 Johns. Ca. 409. Harzoood v.' Ramsey, 15 Serg.,8f Razóle, 33, 34. F'olwell v. Beaver, 13 Serg. Sr Rawle, 311. Why construe a contract, absolute in its terms, to mean one conditional in its effect ? Why “ malte the word of promise to the ear, and break it to our hope }” An absolute guarantee is different from a promise to pay, if another does not. Coxe’s Dig. 729, No. 19.

   The opinion of the court was delivered by

Rogers,J.

If an obligor on assigning a bond, enter into a covenant with the assignee, to stand surety for its payment, this is an engagement to pay the money, on the insolvency of the obligor, provided the assignee use due diligence to obtain payment from the obligor. There is no distinction between the case referred to, Rudy v. Wolf, 16 Serg. & Rawle, 79, and the present, except in the phraseology of the agreeement, and this can make no essential difference. The legal import of the term guarantee” is a promise to answer for the payment of some debt, or the performance of some duty, in case of the failure of another person, who in the first instance is liable. 3 Kent’s Com. 85. In Rudy v. Wolf the same rule was applied to an express covenant, as had been adopted in Virginia, on the covenant implied from, the assignment.

In 2 Wash. 266 ; 2 Hen. & Mun. 119, and in Rudy v. Wolf, 16 Serg. & Rawle, 79, it was settled, that due diligence to recover the money from the obligor must be used, and that what is due diligence, is a fact for the decision of the jury, on the whole evidence submitted to them. In a cause like the present, two things are indispensable to the maintenance of the suit. The plaintiff must prove, first, the insolvency of the obligor, and, secondly, that he used due diligence to obtain payment from him. Was there evidence either that Yctrnell was insolvent, or that the necessary diligence had been used to collect the .debt ? I have looked through the testimony in vain for proof of these essential pre-requisites to the maintenance of the plaintiff’s action. A demand of payment, alone, is not sufficient. It must-be followed up with proof from which the jury can reasonably infer the insolvency of the obligor, and that the requisite attention has been paid to the collection of the debt. Besides, here a mortgage was given as a collateral security ; and to this fund the plaintiff might have resorted, on the refusal to deliver the salt according to contract. An ejectment on the mortgage would be' a most efficacious mode of compelling payment, as it is in proof, that the mortgaged premises are of a value amply sufficient to cover the whole demand. Had suit been brought against Yar.nell, or some proceedings instituted on the mortgage, non constat,,but that the assignee would have had ample redress for the breach of the covenant. We think this rule a necessary one; as otherwise assignees would be careless when no doubts were entertained of the solvency of the assignor.

- The court of Common Pleas ruled this case on the ground that there is an absolute agreement to pay on the refusal to deliver the salt. In this we conceive there was error. It was a conditional and not an absolute engagement.

I at onetime doubted whether the fact that the assignment was executed before the day of payment, 'made a distinction : on reflection I am convinced it does not. After a careful search into the authorities, I have found no ease, except in that of negotiable paper, where any distinction has been taken, whether the assignment was made before or after the time fixed for payment. In cither case the assignor, is liable on the assignment, only when the obligqa is insolvent, and due diligence has been used by the assignee to enforce payment. What is evidence of the insolvency of the obligor, it is unnecessary to decide. We are, however, of the opinion that a demand of paj-mentand a refusal to pay, is not such evidence, although coupled with the fact of the non-residence of the obligor; particularly when a mortgage has been given as collateral security.

Judgment reversed and a venire dc novo awarded.


author: Gibson, C. J.

text:
    WELKER against WELKER.
    When the record and judgment of a justice of the peace is removed into the Common Pleas by a certiorari, and the plaintiff in error there suffers a non-suit, a scire facias will not he by the defendant in error, to have execution for the amount of his judgment before the justice and costs: the record must be remitted to the justice to be proceeded in.
    if a guardian obtains a judgment during his guardianship, he may have a scire facias to revive that judgment, and have execution thereof after the time for which he was appointed guardian has elapsed, although another guardian be appointed.
    Error to the Commpn Pleas of Westmoreland county.

      Nicholas Long guardian of the heirs of Michael Welker, deceased, obtained a judgment against Jacob Welker before a justice of the peace in 1813. The defendant sued out a writ of certiorari, and upon the return of the record of the justice, failing to file exceptions, judgment of nonpros, was entered, agreeably to the rules of court. Upon this judgment of non pros, the plaintiff in this suit, Nicholas Long sued out a writ of scire facias to have execution of the amount of his judgment and costs. It appeared by the records •of the Orphans’ Court that Nicholas Long had been appointed the guardian of Welker’s children, “until they arrived to the age of fourteen years,” and that after that period and before this writ issued another guardian had been appointed. The defendant plead “mil tielrecord,” and also specially, that after the non-suit was entered, .and before the writ issued, the wards of the plaintiff arrived at the age of fourteen years, and another guardian was appointed over their persons and estates. To this plea the plaintiff demurred, and the defendant joined in the demurrer.
    Upon both issues the Court rendered a judgment for the plain-stiff.

      Kuhns and J. B. Alexander for plaintiff in error.
    'Two positions were contended for; 1st, That there was no judgment in the Common Please upon which a scire facias could be supported. 2d. If .there was such a judgment, the scire facias could not be supported by the present plaintiff, whose interest was divested by the arrival of his wards at full age.
    The record .should have been remitted to the justice for execution, which can alone be granted by the court wliich rendered the judgment. 19 Vin. ./£. B., 2S4. A Com. Big 140. 1 Lev. 134. Cowp. 843. 2 Ld. Raym. 1417. Tidd. Frac. 1007. 3 Salk. 320. Cro. Car. 23. 1 Ld. Raym. 216. If the plaintiff desired ■to proceed in the Common Pleas, he could only do so by a suit upon the recognizance. 1 Wils. 88.
    It is a general .rule that where the power .granted has expired, either by its own limitation, by the happening of some .contin, gency on which it was made to depend for its existence, or by a revocation, the power ce?ses, and no valid act can be done in pursuance of it. The appointment of a guardian over the person and estate of a minor, is no more than the creation of a power, for the purposes understood to belong to that trust, and those - powers endure no longer than the trust itself continues.
    The act of assembly of 1713, section 7, Smith, 84, authorizes the Orphans’ Court to admit minors to make choice of guardians, to appoint guardians, and directs that such guardians as shall be appointed by the court, shall be allowed and received to prosecute and defend all actions relating to the orphans or minors. This right to prosecute and defend, cannot well be considered as extending beyond the time for which the appointment was made, because after that the office or trust itself, is at an end, and the right to sue, which is merely appurtenant to the office, must cease also.
    But a question of a more practical nature arises in the case before the court. The guardian having obtained judgment during the time he had a right to prosecute, can he now, or can the ward, in the name of the guardian, proceed to execution? This is of some importance as regards the conduct of suits at law, and must be decided on legal principles.
    Previously to the statute of 17 Car. 2. ch. 8, Robts. Dig. 369, which in section 2 provides: “Where any judgment after a verdict shall be had by or in the name of any executor or administrator, in such case an administrator de bonis non may sue forth a scire facias, and take execution upon such judgment.” If an administrator had judgment and died, his executor could not sue execution of that judgment. Nor could an administrator de bonis ■non have a scire facias on a judgment obtained by the first administrator for a debt of the intestate. So also if administration be revoked, the administrator could not afterwards sue out execution on a judgment obtained by himself. BrudneVs case, 5 Coke 9. Yaites v. Gough, Yelverton, 33. Barnhurst v. Yelvcrtsn, Yelverten,' 83. Turner v. Davies, 2 Saund. 148. 2 Bac. Jib. 723. This statute, then, being confined to judgments after verdict and to eases of executors and administrators; it does not extend to eases of guardian and ward, to suits by attorney, or in any way embrace matters inter vivos. 6 Bac. Jib. 112. Atkins v. Gardner, Cro. Ja. 159. 2 Bac. Jib. 724.
    If however this action be not entirely at an end, but may yet be prosecuted to execution through the intervention of a scire facias and judgment thereon, it becomes material to inquire, by whom that scire facias may be sued out, or who may have execution.
    It is true that the writ of scire facias, requiring a defendant to say why execution may not be made of a judgment against him, must be founded on a record, for the judgment pre-supposes a record, and the rule of law is clear, that the scire facias must correspond with the record. But the rule itself, though founded oii the record is granted on the suggestion that some fact, not apparent on the record, has occurred, without a legal decision on which no further proceeding can be had on the judgment. The facts suggested, are generally such as the death of the parties, the marriage of a feme party, the case of administrator durante minoritaie, where the executor has since arrived at proper age to execute the will, and some others within the equity of the statute of 17 Car. 2.

    Thus, if there be a judgment by an administrator, durante minoritate, the executor, after he arrives at full age, may have a scire facias, for he is privy to, and has an interest in, the judgment. 5 Com. Dig. 777. 6 Bac. M. 113. 2 Bac. J3b. 723.

    But a scire facias does not lie by him who has no interest in the thing recovered, though there be privity. As on a judgment in favor of husband 'and wife, in right of the wife, and the wife die, the husband cannot have a scire facias. This, however, must mean, where the proceeding is in rem, because, if husband and wife have judgment for a debt due to the wife, and she dies, he may have execution for the debt, without letters of administration and scire facias/ and this, on the principle that by obtaining the' judgmeht during the coverture, he has changed the character of the property, and made it his own by conversion. 5 Com. Dig. 779. 2 Com. Dig. 82. 6 Bac. Jib. 116.
    But if the wife were administratrix, and suit brought by her and her husband, jure representationis, and judgment, and she dies, the husband cannot proceed on this judgment as survivor. Letters-of administration de bonis non, must be obtained, and a scire facias may then issue by the provisions of the statute. Here the husband was in privity with, and in form a party to the first judgment^ but having no interest in it, he cannot have execution.
    It is a settled principle, that wherever there is a change of parties by marriage, bankruptcy or death, whereby other persons become interested in the execution of the judgment, a scire facias is necessary, so as to make such new person a party to the judgment. Here, however, there is no change of parties to be helped by a scire facias. Johnstons. Parmely, 17 Johns. 271. If it appeared distinctly on the original record, that the authority of the1 trustee or agent over the matter in question, was limited to a certain time, as for a year, and that time had expired, it would bebold to contend that such agent could maintain a scire facias quare executio non, as having a legal control of the case. In this instance, however, the termination of the authority of the guardian, does not appear on the record of the original action; but it is introduced into the record by the plea, so as to put the court into possession of the fact. It is believed the decision upon it must be the same in .the one case, that it would be in the other.
    Wherever, then, the agency of a formal plaintiff has expired before execution executed, even though judgment has been rendered, the cause is ended, and cannot be proceeded in further, unless the case be provided for by statute; and the only remedy left to the party, is to bring a new action on the original contract. Although this is an old rule of law, yet its force has never been impugned; and we have an instance of its application in modern times, by a a very enlightened court, as shown in Grant v. Chamberlin, 4 Mass. Rep., 611; where it was decided, that an administrator de bonis non cum testamento annexo, could not maintain a writ of error to reverse a judgment by the original executor, and betioeen the same 'parties, in page 613; it was decided, that such former judgment by the executor was at an end, and could not be pleaded in bar to a new action on the original contract.

      Armstrong for defendant in error.
   The opinion of the court was delivered by

Gibson, C. J.

A certiorari to remove the judgment in an action before a justice of the peace, has long been considered with us to be in substance a writ of error, as the remedy would be in form, were the justice the judge of a court of record. In the King’s Bench, the judgment of non pros, on a writ of error from the Common Pleas, is that the plaintiff in error take nothing by his writ, and that the defendant go without day as well as have execution of the judgment below for his debt or damages. In the Exchequer Chamber, or the House of, Lords,, the judgment is the same, except that there is no special award of execution; but the record is remitted-to the King’s Bench in order, as it is said, “that the plaintiff may have execution thereupon.” But this special award of execution is unlike an affirmance, which is itself a judgment quod recuperet; for if it were not, it would be final, and it is certain that a second writ of error may issue, the difference being, that it does not suspend execution, which may issue in pursuance of the award of it, after the second writ has been obtained. The practice of our own court was, I believe, the same as that of the King’s Bench, till the act of the 11th of March, 1809, which, in directing the record to be remitted for execution, produced no alteration in the nature of the judgment, though it changed the court by which it was to be executed. But it never was the practice, here or elsewhere, to treat a non pros, as a final judgment for the money; and in this respect there has been no difference between a writ of error and a certiorari. While in the case of an affirmance, the debt has been collected by an execution from the Comtoon Pleas; the pra'ctice has been general; if not Universal; to collect it, in the case of a nonpros, by an execution from the justice.

On the remaining point, the argument of the plaintiff in errtír is Constructed on an analogy from a case that bears little resemblance to the present Assets which have not been brought into a. course of administration, but remain unblended with thé goods of the executor or administrator at his death, belong to the administrator de bonis nori, whose title relates to the time of his predecessor’s death; But to obtain the possession of assets, is not to administer them; and a suit, not founded on.a new contract or duty tó thé administrator himself, being but an instrument of collection; Vests no title in exclusion of that of the administrator de bonis non, who is entitled even to the fruit of á judgmént in the actual possession of his predecessor at his death, whenever it can be specifically distinguished and ascertained, just as if it had been received in consequence of a Voluntary payment or delivery. It is for this reason that neither the representative of the first adttiinistrator; for vVant of title, nor the administrator dé bonis non, ffer want of privity, cah, by .the commflii law, have execution of a judgment obtained fey thé executor or preceding administrator. The inconvenience of this 'in practice,-though incontestable in principle, caíled So 1'dücÜy for iedress, as to induce the legislature to interfere; Why should we introduce the same inconvenience into actions by guardians?' • Not for defect of title in the plaintiff on the record, áfter the attainment of the ward’s age; for he remains the,legal party, and perhapá the holder of the security; and even were he not beneficially interested; there would be no reason why he should not recover as a trustee. Indeed, the security being taken to him personally; it is not easy to see how the ward could recover in the name of any one else. But he is in fact interested so far as regard's thé settlement of his account; and though he were released from responsibility, on account of the debt; before recovery, had, yet; that would be á inattéi' exclusively between the ward and himself. The demurrer to thfe special plea, then, was well taken; but on the pleá of fiu'l liéí record, the judgmént cannot be sustained;

Judgment reversed.


text:
      THE COMMISSIONERS against HENRY.
    .At the expiration of three months from the time when a duplicate is pnt into the hands of a collector of county tax, any balance which is not paid over by him to the treasurer, is a lien upon his personal property.
    Error to the Common Pleas of Butler county.
    This was a case stated in the nature of a special verdict, in which The Commissioners of Butler county were plaintiffs and Adam Henry was defendant. The case is so badly stated as to be scarcely intelligible* as to what Was in issue between' the parties on the re-cord.

      “ The treasurer of Butler county filed a transcript of the balance due by Alexander McCandless, collector of county tax in Clear-field township, for the year A. D. one thousand eight hundred and twenty-six, with the prothonotary of Butler county, agreeably to-an act regulating county rates and levies. If from the filing ot said transcript it was a lien on the personal property of the said Alexander McCandless before the issuing of a warrant by the treasurer to the sheriff of Butler county than judgment to be entered for the plaintiff, and the sum to be liquidated by the Attorneys. If not a lien on the personal property from the time of filing the transcript then judgment to be entered for the Defendant.”
    The court below rendered-a judgment for the defendant.

      Fetterman for plaintiffiu error,
    referred to the 16th section of the act of ílth April, 1799, Purd. Big. 139 ; the 7th section of the act of 39th March, 1803, Purd. Big'. 664, and the construction given to them in Lippencott v. Barker, 2 Bin. 188.
    (S'., A. Gilmore for defendant in error.-
   Per Curiam.

It is not easy to discover the intent of the Legislature in declaring that the transcript shall operate to all intents and purposes as a judgment. This was said, probably, in relation to notice and-not to lien, inasmuch as a judgment creates no lien on chattels under any circumstances, although an execution does. But the lien here arises not even from the filing of the transcript, but from the-existence of an unpaid balance in the hands of the collector, at the expiration of three months from the receipt of the duplicate'. The office of the transcript therefore is to give record notice,which however may be essential to render the lien effective. But whatever'the intent of that particular1 clause may have been, it is sufficient that the words of the act are plain and; peremptory, that both land and chattels shall be bound from .the expiration of the three' months; and it is worthy of remark, that there is but one1 limitation of the lien thus created, and by a term too, which is: as applicable to land as to chattels. If then the period of limita-^ Lon be the same as regards land or chattels, its commencement must be the same, without regard to the nature of its origin, whether by execution or judgment. It is clear, therefore, that the lien in this case, took date -from the filing of the transcript.

Judgment of the court of Common Pleas reversed and judgment for the plaintiff.


text:
    KEIFFER against ALTMAN.
    A. purchased a lot from K. and paid the consideration money, but received no conveyance: A. sold the lot to I. to whom K. subsequently agreed to convey, whenever I. would pay a certain note in which K. was bail for him, until which time he would hold the title as security. The property was sold by the sheriff, as the property of I-, and purchased by G. In an action on the case by A. against K. to compel him to convey, it was held: That the sale by A. to I., and the agreement by K. to convey to I. in pursuance thereof, was a recision of the original contract, and A. was not entitled to recover.
    Writ of Error to Westmoreland County.
    This was an action on the case in the Court of Common Pleas, brought by the plaintiff, Peter Altman, to compel the performance of a parol agreement made between him and the defendant, Henry Keiffer, on the 3d day of June, 1809, for the purchase of a certain lot of ground in the village of Adamsburgh, in said county, by the plaintiff from the defendant. The plaintiff paid the purchase-money agreeably to the contract. This action was instituted to compel the defendant to make a title to the plaintiff. Peter Altman, the plaintiff, sold the aforesaid lot to one Godfriedt Imber, who took possession. In 1812, the interest of Imber in said lot was sold by the sheriff of said county to John Gilchriest, who is now in possession. After the sale by Altman to Imber, and before the sale of the sheriff to John Gilchriest, it was agreed by Altman, Keiffer and Imber, that Keiffer should make the deed to Imber. On the 22d day of August, 1809, Imber gave his note, in which Keiffer was bail to the executors of Dr. David Merchand, deceased, for J10.1.0. Suit was brought upon this note, and Keiffer was obliged to pay it. It was agreed between Keiffer and Imber that Keiffer should keep the deed and lot as security, till the amount of the note paid for Imber by Keiffer should be refunded by Imber. The amount of the note was never paid to Keiffer \ he therefore claimed to hold the title as indemnity for the money paid for Imber, agreeabtyto their contract.

      In the Court below the defendant’s counsel contended that the plaintiff could not recover at all; .but the court being of a different opinion, a verdict and judgment was rendered for the plaintiff.

      Kuhns and J. B. Alexander [or plaintiff in error.
    That the terms of a parol or written contract may be altered by parol, cited 1 Johns. Cas. 22. 3 Johns. 53Q. 1 Serg. It atole, 316,

      [V. Forward for defendant in error.
   Per Curiam.

By agreeing that the plaintiff should convey directly to Imber, the defendant admitted that Imber ryas the owner of the equitable interest,' and exclusively entitled to call fon the legal title. The agreement, therefore, was necessarily a reci-?. sion of the original contract, because, as the defendant could not convey to both, he could not have conveyed to either, without a preach of the engagement to tlie other, if both engagements were in force., But further,; the' plaintiff could reco.ver, if. at all, oqly as a trustee for Imber, or those in his stead. Rut the plaintiff, by qdmftting Briber’s equitable ownership, admitted a right in him to, hypothecate it, b.y creating a lien on the title. Hqw, then, could’ the plaintiff recover as a trustee for Imber, whom the court would¡ recognize as the real party, clear <?f Imber’s agreement? Either, then, the original contract was dissolved, or it was not. If dissolved, 'the plaintiff cannot recover. If-it was not, he can recover for the. use of- Imber, only by reimbursing the defendant his advances,, for. Imber, on the credit of his agreement for a lien on the title.

Judgment reversed, and. a venire.de novo, awarded.


author: Rogers, J.

text:
    SPRINGER against THE COMMONWEALTH
    A variance between the writ and declaration must be. taken advantage of by plea in, abatement, if at all ^ and not bn a'writ of error.
    A plaintiff wlio sues’out a writ of summons pursuant to the provisions of the act of-twenty-first March’, one thousand eight hundred and sis, cannot afterwards file a declaration and proceed to juclgmerit at the first term, hy authority of the act of-twentieth March, one thousand seven hundred and tweijty-five.
    Error to Fayette county.
    In the court helow, The Commonwealth was the plaintiff, and sued out a writ of “ summons in debt, not exceeding four hundred dollars” against John and Jacob Springer, executors of Dennis^. Springer, deceased.. A. declarptipn’ w^s filed claiming ninq hqm„ ¿red dollars. The writ was served upon the defendants, who did not appear; and the court on motion of the plaintiff’s counsel, on the second day of the term to which the writ was returnable, rendered a judgment fgr the jffaiqtiff: which they afterwards refused to open.
    The errors assigned were, first, The variance between the writ and count. Second, That the judgment was rendered in pursuance of the provisions of the apt qf qne thousand eight hundred and six, in an action commenced under the act of one thousand seven hundred and twenty-five.

      W. Forward for plaintiff in error.
    Cited Wingerl v. Connell, .4 Serg. 8? Rawle, 237.

      W. Wilkins for defendant in error.
   The opinion of the court was delivered by

Rogers, J.

—A variance between the writ and the declaration must be taken advantage of by plea in abatement, if 'at all; and this disposes of the first error assigned.

The plaintiff in error further objects, that the judgment was obtained by default, on motion, the second day of the term to .which the writ was returnable. If this be a proceeding under the act of the twenty-first of March, one thousand eight hundred and six, (and it is too plain to admit qf argument that it is,) then it clearly comes within the decision of the court, in Wingert v. Connell, 4 Serg. & Rawle, 237. The judgment was entered previous to the time allqwed by the act for the defendant to, appear, and therefore bad. But it is contended that although the writ was issued under that act, yet that a declaration was filed, and not a statement, and that therefore the judgment by default was regular. Admitting the fact to be so, yetthe argument is more fallacious than solid. For where the' defendant is served with process, which is authorized solely hy the act of one thousand eight hundred' and six, he is warranted in be-* lieving that the directions of the act will be pursued throughout. And if the plaintiffis at liberty, without notice, to take judgment in any other way than is therein prescribed, it would prove a snare to the unwary, and may be used as a device to obtain judgment without a hearing. An attempt, such as this, should he nipt in the bud, for the defendant has a right to rely on the act which saves a de-¶ fault by an appearance on the third day of the next succeeding term to which the process issued is returnable, where the term is for one week, and the second Monday of the term where it com iinues two weeks, . ,

Judgment reversed and a venire de novo awarded.


author: Kennedy, J.

text:
    WELLS against HORNISH.
    Although an owner of real estate may he entitled to recover, in an action on the case for uso and occupation, against one who has enjoyed the possession ; yet unless he can prove a demise, and a certain rent reserved, he cannot distrain.. And in an action of trespass against his bailiff, he cannot justify by evidence of what the annual value of the premises was.
    In an action of trespass against a bailiff for distraining goods, he can only justify himself by proof, that a certain rent was reserved, and that it was in arrear. The mere warrant of a landlord is no justification to a bailiff, although he be a constable or sheriff '
    Error to Westmoreland county.
    This was an action of trespass brought by John Wells, the plaintiff in error, against John B. Plornish, the defendant in error.
    On the trial in the court below, the taking of the goods was admitted and the plaintiff proved the value of them. The defendant was a constable, or at least acted as such, and endeavored to justify the taking of the goods of the plaintiff as the bailiff of Arthur Carr, as a distress for one hundred and eighty dollars rent, which he alleged, was due to Carr. He first gave in evidence a warrant from Carr, dated the seventh of August, one thousand eight hundred and twenty-six, authorizing him to distrain the goods of the plaintiff for one hundred and eighty dollars being one year’s rent, which fell due as was therein alleged, on the day preceding. The defendant proved that Arthur Carr had become the purchaser of the property and premises, out of which the rent was claimed, at a sale made of the same by the sheriff of Westmoreland county, and that a deed of conveyance was duly made by the sheriff to Carr. That the plaintiff was in the possession of the premises so sold ■ — That Carr proceeded against him to recover the possession, in the summary manner provided by the act of assembly, in favor of purchasers ofreal estate at sheriff’s and coroner’s sales; obtained a judgment, and a warrant to the sheriff to deliver him possession. What was done under this warrant did not appear. The plaintiff, however, still continued in the occupation of thepremises. Without more being shown or proved on the part of the defendant, he then called John Y. Barclay, Esq. and proposed to ask him what would be a reasonable rent for the property in one thousand eight hundred and twenty-five and six, from his knowledge of the premises. This question was objected to by the plaintiff’s counsel, and the objection over-ruled by the court — which is the first error assigned.
    The counsel for the plaintiff requested the court to instruct the jury on the following points :
    1. “That the plaintiff is entitled to recover in this case, unless the defendant prove that Arthur Carr, under whose warrant h© acted, had demised to the plaintiff the premises referred to for a term Of years, or at will, reserving a reiit.
    2. “ That the defendant to justify himself, must prove, that rent Was in arrear.
    3. “That the testimony of John Y. Barclay, Esq. does not prove a lease, so as to justify the defendant in this case. ■
    4. “That if Carr had no right to distrain, that his warrant cannot be a justification of the defendant.”
    The court answered all these points expressly against the plaintiff, and the jury found accordingly for the defendant.
    Errors were assigned in the opinion of the Court, over-ruling the objections to the testimony of John Y. Barclay, Esq. and in each of their answers to the points put by plaintiff’s counsel.

      J. Findlay for plaintiff in error.
    J. B. Alexander and Foster, contra ;
    who declined to argue in support of the judgment.
   The opinion of the court was delivered by

Kennedy, J.

Had this been an action brought by the defen-' dant against the plaintiff for use and occupation, such a question as Was proposed’ to be put to the witness, might have been very proper ; because after having shown that the plaintiff had occupied the property by the permission of the defendant, he would have been entitled to recover, without proving that the plaintiff was to pay 'to1 him any certain or fixed sum for the same, whatever the jury might have thought would have been a reasonable compensation ; and to inform the consciences of the jury on that point, the testimony Would have been strictly relevant and unexceptionable. But I apprehend that in this action, the question, what would be a reasona-ble rent ? did and could not properly arise. Because, without an agreement fixing upon a certain rent to be paid for the property, .Arthur Carr, or his bailiff, the defendant, had no right to distrain or seize upon and take the plaintiff’s goods. A distress can only be made where, by the agreement, the rent to be paid is certain and fixed, so that the tenant may know, in case he be threatened with a distress, what he is to pay to prevent it, or in case his good^ shall be distrained, what sum to tender in order to retain them. Where this is not the case, to permita landlord’to distrain for whatever sum he might say was reasonable, would introduce the greatest imaginable oppression and injustice. On the other hand, it would not do to leave the sum to be fixed by the tenant, who it may be supposed, from interested motives, would seldom be dis-> posed to do justice to his landlord. It is necessary, therefore, that the claim of the landlord in this respect, should be ascertained by the agreement itself, under which the property is let. On the trial of this Cause it then became necessary that the defendant,- in xna>> king out his justification, should prove that a certain rent was to' have been paid by the plaintiff to Carr for the property; and how could the opinion of the witness, as to what sum would have been a reasdnablfe rent Contribute to prove, in any degree, that the plaintiff had agreed to pay that sum* whatever it- might be? The opinion of different men will vary less Or more on such a poiiit; and such testimony cannot, therefore, lead to absolute certainty as to the amount of rent that was to have been paid; which I consider indispensably necessary.

Hence, it appears, that the court below erred in admitting the testimony iff Mr. Barclay, which was objected to.

After the Close of the testimony o'n bdth sides, tlie' plaintiff’s’ counsel among other things, requested the court to é'hafige the jury,’ that the defendant, to justify himself, must prove that rent -was in arrear.- In answer to this, the court told the jury that the defendant was not bound to prove the rent in.arrear. And this is assigned by the plaintiff’s counsel for the third error! It is difficult to conceive upon what principle it was, that the court belóW gave this1 direction to the jury. The defendant rested his defence entirely upo'n his justification-, Which was clearly o"f an affirmative Character; and that rent was due, and irt arreaí by-the plaintiff to JirtUui' Carr, appears to me to have been the very jiát of it. No rule'is better established than this; that the bhrden of proof lies Upon hito, who is in the affirmative in pleading. The defendant Was So in this cáse, and I therefore think there was error in' the dnswbr of the c'ourt below upon this point to the jufy.

The plaintiff’s counsel, also, requested the" court to charge- the jufy that the testimony o'f John Y. Barclay, Esq. did' not prove a lease so as to justify the defendant in this case; In feply to-which,1 the court told the jury,- it Was not the province of the'court to say what weight it ought to have with the jury. This áfiswer of the court has been assigned for the fourth error! The answer is per-» haps notvery difetítand explicit; yet I cannot say certainly that there is errof in it. When the testimony is of a purely párol character, ánd submitted to the jury by the parties' for their Consideration,1 generally, I think it belongs to the jury to decide, what conclusions are to be drawn fro'm it, and always to de’cide Upon the weight Or degree of credit that Shall be given to’ it. The plaintiff might have, if he had pleaáed, withdrawn the consideration of this'testimony from the.jury, by demurring to it; .and in this way,' háVíí compelled the court to' decide on the effect of it. This Course,' however, he did not think proper to take; ánd I am not Satisfied that he had a right to require the decision of the court upon the" effect of it, in any other way. If So, hé'had no right to1 require thb Court to declare the effect of it to the jury, and to direct them i-ti the conclusions which they ought to draw from -it.

The counsel for the plaintiff, in the next place, requested the! Court to instruct the jury, that if Arthur Carr had no right to distrain his warrant could be no justification to the defendant for doing so. In answer to which, the court directed the jury, that whether Carr had or had not a right to distrain, his warrant to the defendant, supposing him to have been a constable, was a sufficient justification to him for all his proceedings under it. This direction is assigned for the fifth and last error, which also goes to negative the existence in fact of the second error assigned; and Which I therefore omitted to notice in its order. •

I- am altogether unable to discover any principle of law or justice, upon which this part of the charge of the court below can bd Supported. There is certainly no good reason for saying that Carr-, who claimed to be the landlord of the plaintiff, could delegate d power to-the defendant which he did not possess himself. If t certain rent had been due, and in arrear from the'defendant to Carr, he could have made the distress himself in person, without thd aid of an officer of any kind; or he might, by his warrant, as he did in this caso, have appointed the defendant, or any other person, not a constable or officer, his bailiff, or agent, or attorney in fact, to distrain in his name the goods of the defendant, for the rent due and in arrear. But if no rent Were owing to him, his distress of the defendant’s goods woüld be most clearly illegal and unwarrantable; and consequently, the distress by his bailiff or agent no less so. In case of a distress by a landlord, for rent due and in arr'ear, if the tenant or owner of the'goods should not, within the space of five days after such distress taken replevy the goods, they are,'under the act of assembly of the 21st of March, 1772, to be appraised; at which the sheriff, or under sheriff, or h constable, must be present, aiding and assisting, and not before. So if any other than the sheriff, under sheriff, or a constable, be made bailiff, and distrain the goods of the tenant, such an officer must be. called in to the appraisement of the goods, and to superintend and conduct the sale of them in all cases as directed by this act. But no part of this act countenances the idea that a constable, or any other person who undertakés to act as bailiff for the landlord in making the distress, shall be excused or justified in doing so, where no rent can be shown to be due and in arrear. So far from it, that the third section expressly provides, “That in case any distress ánd sale shall be made by virtue of this act, for rent pretended to be in arrear and due, when in truth no rent shall appear to be in arrear or due to the person or persons distraining, or to him or them in whose name or names, or right, such distress shall be taken as aforesaid, that then the owner of such goods and chattels distrained and sold as aforesaid, his executors or administrators shall and miy, by action of trespass-, or upon the case, to be brought against the person or persons so distraining, any or either of them, his or' their executors or administrators, recover double the value of ths goods or chattels so distrained and sold, together with full costs of suit.” Here, by this section of the act, it will be perceived, that it is the person or persons distraining who are made liable to the action, and double the value of the goods distrained and sold, ins case there bé no rent due and in arrear; and not the person or persons in whose names the distress shall be made. The charge of the court below in this particular, was directly against the act, and every principle of the common law.

There are cases indeed when constables, acting in obedience to warrants under the hands and seals of justices of the peace, upon complying with the requisitions of an act of the assembly, passed the 21st of March, 1772, entitled ££An act for rendering justices of the peace more safe in the execution of their office, and for indemnifying constables and others acting in obedience to their warrants, will be excused; but that act has no relation to the present ease. There was no warrant of a justice of the peace in this ease;, nor could a justice of the peace, as such, have given a warrant authorizing a distress for rent due and in arrear.

Judgment reversed, and a venire de novo awarded.


text:
    STEEL against THOMPSON.
    The Landlord and tenant act was only intended to he applied to the plain and ordinary case of a demise at a certain rent, and a tenancy, whose termination, is independent of a contingency. If therefore it appears upon the trial of a cause, originating under this act, before two Justices, from whose jurisdiction it was removed to the Common Pleas, by the affidavit of the party,, that it was not such a case as that act intended to provide for, it will'be fatal to the proceeding.
    The rule of policy, which protects a husband from the admissions of his wife, is inapplicable to such as are in the nature of facts in respect to which, the presumptions to which, they give rise, are not drawn from the credit of the party, but' the fact that such admissions were actually made. In a case, therefore, where the husband is sought for at his own house, for the purpose of making a tenderte him, and his wife refuses to^ive information where he may be found, and declares that iher husband will not except the tender, such declarations may be given in evidence. 1
    Error to the court of Common Pleas of Westmoreland county.
    This was a complaint made before two Justices of the Peace by the plaintiff in error under the Landlord and tenant law; and upon the defendant in error making the oath required by the act of' Assembly was removed into the Common Pleas. It appeared in evidence that a certain William Lyons by his deed dated the 8th J.une, 3.824, conveyed the land in controversy to William Thompson, the defendant in error, in fee simple. The consideration mentioned in the deed is the sum of @1000 — and that William Thompson should pay the said I^yons the sum of @60 per year during the life of said Lyons, and maintain his daughter. There Is no receipt annexed to the deed for the sum of @1000. The' deed refers to an article of agreement between the same parties of the same date, (8th June, 1824,) in which Thompson covenanted to’ pay the said Lyons @60 per year, during the life of the latter, and maintain Sarah Lyons his daughter; and in consideration thereof the said Lyons agreed to convey to Thompson the premises now in controversy. For the first instalment of @60 that became due under this agreement the cattle of Thompson the defendant in error, were sold under an execution. For the second instalment of @60 according to the said agreement, a judgment was obtained; the land in controversy was levied and sold to William Lyons the plaintiff, on the22d Februaiy, 1827, forthe sum of twenty dollars. On the 14th March, 1827,. Joseph Steel executed his bond with warrantof attorney for confessing judgment to William Lyons in the penal sum of @2500, conditioned for the payment of @60 annually on the 8th June of’each year, to the said Lyons, during his natural life and maintaining his daughter Sarah Lyons. On the same day, 14th March, 1827, the parties to the present case entered into an agreement as follows: “It is agreed between Joseph Steele and William Thompson — that the said William Thompson is ■ to keep and maintain Sarah Lyons according to the terms of Steele’s bond to William Lyons of this date, for two years from the first of April next, in consideration of which, said Thompson is to enjoy the place he now lives on for two years from the first of April next, . as a tenant, unless within that time said Thompson pays said Steele for the advances made William Lyons on account of Thompson’s contract with said Lyons concerning said place, with interest and a reasonable allowance for expenses — during said term of two years, Thompson is to give Steele one half of the hay raised on the said place, and to pay all taxes and to make two fences, one on each side of the meadow, to save the grass, the hay to be delivered in the mean time; and if at the énd of the two years or before Thompson is able to refund to Steele as above — in that case Steele agrees to reconvey to said Thompson.” To this is subjoined a nota bene of same date, under seal, with the signatures of the parties, in which it is stipulated, that if Sarah Lyons should not be maintained according to contract, and should make complaint on this subject, that the agreement was to be at an end. On the 19th March 1827, judgment was confessed} on the penal bond from
      Steele to Lyons before mentioned. The sheriff made a deed to. Lyons for the said premises on the 9th July, 1827. Lyons conveyed to iSfeeiein fee simple'by deed, dated 23d August, 1827. Steele-gave Thompson notice to quit the said premises on the 30th Decern-, her, 1828 and required him to deliver possession oñ the 1st April then next following. Steele made complaint on oath before two Justices of the Peace tide 10th April, 1829, under the Landlord and Tenant act, and they issued' their precept to the sheriff commanding him tp summon a jury, &c. On the 18th day of same month, Thompson made oath (this being the return day of the precept) that he claimed the premises adversely to Steele, and that he had leased fhe premises from Steele on an engagement in the nature of a mortgage to secure Steele for any moneys that he might have paid Lyons by reason of the contract, referred to in said lease or. mortgage — and further, that he was always willing and ready, and offered to comply with his agreement. Jacob Haymaker Esq., a witness on the same side, deposed that a neighbor of his, wanted to buy the tract of land from Thompson in March, 1829 — he cou!4 not tell the day. Witness said, to Steele, there is an article between you and Thompson — Steele ?aid he would never give it up, and whoever would buy it, would buy a law-suit. Afterwards. Thompson told the .witness that Steele :was willing to give up the land if he would get his money, and that he ( Thompson) wished Steele to acknowledge it in the presence of a witness. Thompson„ M’llroy. and witness wpnt to Steele’s — as they approached Steele’s house witness saw a man leaning on the window, whom he took to. be Steele. They went into the house and inquired for Sítele___ his son said he had gone up the lane — M’llroy wished his son to. send for him. M’llroy said that if notes would not do he would get silver, as he understood that Steele would take nothin»- else, M’llroy had, po money with him. He waited till 9 o’clock at night and then went'home. This was before the 1st April, 1829. The counsel for the defendant then offered in evidence the deposition of Joseph Hunter taken under a rule of court The counsel for the complainant objected to that part of it that relates to the. conversation of Mrs. Steele. The Court over-ruled the objection and admitted the evidence — to which the counsel for the complainant excepted. The witness says that on the first April, 1S2.9,, Thompson asked deponent to go with him and see a tender made of certain money to be paid to Steele — deponent went in company with Thompson and Neal Boyle on said day to Steele’s house *£and made inquiry at Mrs. Steele’s concerning where said Steele was, to which she answered that he had not been at home for some, days: said Wm. Thompson then told Mrs. Steele that he was pome with the'intention of pitying certain moneys in conformity to, an agreement entered into between him and Steele. Mrs. Steele. then made answer, that it was not worth his while to offer any money for it would not be accepted of, as they intended to keep the land because they had already had considerable trouble with it, Deponent further said, that he had $300 in Pittsburgh Fnotes ready to pay to Steele for said Thompson — that after the refusal .of Mrs. Steele to take the money or to tell where Steele was, they left the house.
    The Court below,' (Young President,) was of opinion, and so instructed the jury, that the plaintiff could not maintain the action. A verdict and judgment was rendered accordingly. The following errors were assigned:
    1. The Court below erred in admitting the evidence noted in the bill of exceptions.
    2. The Court erred in charging the jury, that the agreement between the parties ofthc.l4th March, 1827 was not a lease.
    3. In charging the Jury that Mrs. Steele was the representative of her husband in his absence, and that as no objection was made by her to the alleged tender of bank notes, the tender was good.
    4. In charging the jury that the defendant had substantially complied with his contract.
    5. In charging the jury, that even if the defendant had not complied with his contract, the plaintiff was premature in his proceedings to enforce the performance of it. ■
    6. In charging the jury that, the law and the evidence were with the defendant.

      J. Findlay and Foster, for plaintiff in error.

      Armstrong and J. B. Alexander, for defendant in error.
   The opinion of the court was delivered by

Gibson, C. J.

The tenant may suspend the proceedings before the justices and freeholders, in order to have the judgment of the Common Pleas on a question whether the landlord has not parted with his reversionary right to the possession by deed, will, or descent, since the demise. Here the suspension wa.s on an allegation that the tenant himself had acquired the inheritance, and with it, the incidental right to the possession, by what is alleged to be equivalent to the' performance of a condition reserved in the demise j and however consonant to the spirit of the provision this may have been, it was certainly not warranted by the letter. Still I am not prepáred to say that the reference to the Common Pleas ought not to have been sustained. At all events, there was no motion to remit the proceedings to the inferior tribunal, and the cause was put to the jury with a direction in which we concur, that the lease was ppt such as to'giye the justices and freeholders jurisdiction. The truth of this will, I 'think, appear from the context of the act, ■which seems to indicate that the legislature had in view a proceeding that should involve nothing but the most simple and obvious matters of fact. The cardinal points of precedent possession, leasing at a certain rent, holding over, and notice to quit, are not, in the usual mode of their occurrence, above the capacity of men of ordinary acquirements; and being attended with no difficulty of principle or intricacy of circumstances, it was not thought necessary to bring to their solution the powers of a jury' directed by judges learned in the law. On the other hand, the question whether the landlord had not parted with the reversion, as it might involve the legal construction of the instrument or the laws of descent, was for its difficulty reserved to the ordinary tribunals; But it is obvious that the construction of a doubtful agreement, in respect of the nature and extent of the tenant’s interest, may present'points of equal difficulty; and we can account for the absence of a provision to reserve that also,'only by supposing that there was no design to extend the remedy to such a case. The same reason- that would require it to be restrained to the case of a demise at a certain rent, would equally require it to be restrained to a tenancy whose termination is independent of a contingency; and that it was intended for plain and ordinary cases, is indicated by peculiar expressions in the act itself, which requires that it appear to the justices that the landlord had been “quietly and peaceably possessed;’’ that he had demised “at a certain rent;” and for a term “fully ended;” from all which it should incontestibly appear that the relation of landlord and tenant existed at the time of the application to the justices. Here the relation of the parties was contingent, if not doubtful, from the beginning; and when application was made to the justices, it was not easy, as it appeared at the trial, to determine its nature or extent. If to'ascertain whether the landlord has not parted with the reversion by deed, will, or descent, be so difficult in the estimation of the legislature as to demand the judgment of the Common Pleas, it is certainly no less difficult to ascertain whether the tenant has not acquired it pursuant to a condition in the lease, the determination of which involves the adjustment of a complicated account^ and a consideratiori of the whole law of tender as equivalent to actual performance. The judge, therefore, was entirely accurate in saying that the contract had “more the aspect of one for the disposal of an interest in land on specified terms, than of a lease by the actual proprietor to his tenant at a stipulated rent.” Beside, not only was the plaintiff destitute, of that quiet and peaceable possession which the law requires, at the date of the lease, but he was without even the color or pretence of a. right, to it.; and that alone would be fatal to his right to recover by this summary proceeding. As, then, an objeetion to jurisdiction is always in time, the nature of. the contact was properly put to the jury as an impassable bar.

Such, then, being the state of the principal question, the remaining errors might be deemed immaterial, even had they been sustained by the argument. But the declaration of the plaintiff’s wife was properly admitted. Slight evidence had been given of his reluctance to part with the title, and of his having kept himself out of the way of an expected attempt by the defendant to tender the purchase-money. To show an attempt actually made, it was competent to the defendant to prove, as he did,' that he had called for the purpose at the plaintiff’s house, and was informed of his absence by his wife, who, by universal custom, is the representative of her husband, so far as to answer the calls of those who have transactions with him, and to convey to him the nature of their business, or inform them where he may be found. So far the competency of her declarations will not be disputed. But on every principle of analogy, he is to be affected by all acts done, or declarations made by her, within the scope of this customary, authority. In a matter pertaining to the domestic economy, as this certainly was, he is chargeable with her acts on a presumption from the very nature of her functions, that she has acted by his authority and with his assent. From the naked fact of cohabitation, arises a presumption not only of an authority to purchase necessaries for the family, but also of their having come to the.husband’s-use; and this rule.has no other foundation than the general current of family transactions. But these declarations were admissible in another point of view. The rule of policy, which protects the husband from the admissions of his wife, is inapplicable to suchas arc in the nature of facts; in respect to which, the presumptions to which they give rise, are not drawn from the credit of the.party, but the fact that such admissions were actually made. Starkie Ev. pt. iv. 712; and on this principle it seems that declarations by a wife of the state of her health at the time of effecting insurance on her life, may be given in evidence against her husband in an action on the policy. Now, to advert to the nature of the declarations here: The. defendant, in seeking for the plaintiff at the place of his residence, is told by' his wife that he has been absent, from home several days. He declares that the object of the visit is to pay certain moneys due to her husband as the price of this land; and in reply, she neither proposes to inform him of the matter, nor, as she would naturally have done, had her answer not been prepared, directs the defendant where to find him; but remarks, that it is not worth the defendant’s while to offer money, as it would not be accepted, because they intend to keep the land, having already had considerable trouble with it. On the principle indicated, then, this declaration was a substantive part of the transaction from which the jury might draw their own conclusion. Why should they not? The fact that a declaration which precluded further inquiry, was made by one whose office it would otherwise have been to furnish the means of access to her husband, is full of information in respect to the motive of his absence.

To obviate the objection that the money intended to be tendered, was in bank notes, it is sufficient that the defendant Was prepared to convert the notes into coin; and having done all that depended on himself to effect a performance of the condition, the judge was Warranted in the opinion he expressed, leaving the evidence to the jury, that the law and the fact were in his favor. Nor is there error in , the direction that the proceeding was in any event premature. The plaintiff was bound to exhibit an account of moneys advanced and expenses incurred, before he could call on the defendant, who would otherwise not Imow what to tender; and iii default of it, equity would not only restrain the plaintiff from recovering the land, but compel him to execute the contract on an offer to pay whatever should be due.-

Judgment affirmed.-


author: Per CuriAm.

text:
    RAINEY against BLACK.
    ft is error 16 Siipercecie the evidence of the cause of action, by counter evidence iri anticipation of its effect.
    Error to Westmoreland cdunty.
    This was an action of debt on an award in whiéh the plaintiff in error was the plaintiff below. The plaintiff having proved the execution of the submission and award, offered to read the same to the jury; the defendant objected, and in order to support his objection, gave evidence tb the court which tended to show, that the’ submission had been revoked before the award made. The court decided the law to be, that the submission was revocable, and the fact to be, that it was revoked; and therefore rejected the evidence; to which the plaintiff took exception; which is the subject of this Writ of error.

      Kuhns and J. B. Jllexai%der for plaintiff, in error,
    whom the Court declined to hear.

      J. F. Barclay and Foster for defendant in error,
    cited, Kyd, on aiOdrds, 29.

   Per CuriAm.

Whether the submission were revocable or not, the fact of actual revocation, which was the main point of the defence, was withdrawn from the jury. i But it is Well settled, though not sufficiently attended to in practice, that evidence of the cause of action is not to be superceded by counter evidence in anticipation of its effect. Ünder the plea of non est factum, the court cannot prevent the disputed deed from going before the jury, on a Supposition that the execution of it has not been sufficiently proved, or that the evidence of the party maintaining the affirmative of the issue has been disproved. Here the existence of the submission at the time of the award, Was the very thing to be decided; and as it was a matter of fact, the evidence on both sides ought to have gone to the jury.

Judgment reversed, and a venire de novo awarded.


author: Ross, J.

text:
    SWEARINGEN against PENDLETON.
    If a deposition be drawn by an attorney, agent, party* or relation of a party having or feeling an interest in the cause in which it is to be i'ead* it is good ground for rejecting it.
    Hie facts that a deposition which was thus Written, had been filed a number of years, and read on a formel' trial of the cause before arbitrators, and in court Without objection* do not so alter the dase, as to make the deposition evidence, when objected to.
    Error to the Common PleaS of Washington County.
    This was Rn action of Covenant in which Philip C. Pendleton and others, executors of Philip Pendleton, were plaintiffs, and Elizabeth Swearingen, executrix of Jlnclrao Swearingen, who Was the surviving1 executor of Van Swearingen, was defendant. There was a former suit between these same parties previously to 1807. In 1814 it was tried, and a verdict and judgment Rendered for the plaintiff; — in 1818 this judgment was reversed. In this süit á commission issued to Virginia to take the testimony of Witnesses, which was returned and filed in 1807. These depositions were offered in evidence in the present suit, which was brought in 1826; they were objected to by the defendant, on the ground that they were in the hand-writing of Philip C. Pendleton, one of the plaintiffs. • The proof satisfied the court of this fact; but it appearing, also, that they had been filed in court in 1807, read on the trial of that cause before arbitrators and in court, without the objection which is now made, and that the deponants are dead; the objection was over-ruled; to which the defendants excepted.

      Leet and W. Forward for plaintiff in error.
    A deposition written by an attorney, agent, or party, cannot btí read. Summers v. McKim, 12 Serg. 8y Rawle, 405. middleman v. Masterson, 1 Penn. Rep. 454. Patton v. Patton, I Penn. Rep. 200. The fact of its having been read before arbitrators does not differ the case. Cox v. Norton, 1 Penn. Rep. 412. Starel v. Chambers, 2 Yeates, 232, in note. 1 Harris 8? Me Hen. 230.

      McKennan and Ewing for defendants in error,
    Contended that it was the duty of the party, under the strong circumstances of this case, to give notice of their objection, and ask the court to suppress the depositions. They, suffering them to be read at different periods of the controversy between the parties, thus lulled the plaintiffs into security until the time when such objection would be fatal. This is not that fairness which the law will sanction. Carpenter v. Groff, 5 Serg. 8y Rawle, 162. 3 Stark. 1249. Strickler v. Tod, 10 Serg. 8y Rawle, 73. Hook v. Hackney, 16 Serg. 8y Rawle, 389. Sheeler v. Spear, S Bin. 130. McKim v. Somers, 1 Penn, Rep. 305. 7 Wheaton, 453. 1 Stark. 269. 2 Mad. Chan. 4T2.
   The opinion of the court was delivered by

Ross, J.

The error in this case depends Upon the solution of the question, whether the court was right in admitting the depositions of James Wilson and Mraham Shepherd, Esquires, takers by virtue of a commission on interrogatories, filed the third day of July, 1807. During the argument, many points have been made and pressed upon the court for their consideration. It has been strenuously urged, that the depositions, having been on file for many years, if there existed any objection to them, the defendant’s counsel should have moved to suppress them, or should have advised the plaintiff of the objection. There is no doubt, that in England Courts of Chancery exercise the power of suppressing depositions. 2 Mad. Chan. 412. But certainly, it has never been decided in this state, that our courts can exercise this power. The case of Carpenter v. Groff, 5 Serg. & Rawle, 166, has been referred to as authorizing such a course. That, however, was not the question either decided, or under the consideration of the1 court in determining that case. It was a mere dictum of the chief justice, and uttered probably without much reflection. Neither is the case of Hook v. Hackney, in 16 Serg. & Rawle, 389, at all in point. The principle upon which that case was decided, is not applicable to this case. The fact is, that it still remains to be decided, that our courts can exercise the power of suppressing depositions' upon mere motion, previous to the trial. At any rate, it is a doctrine to-which I cannot at present yield an assent. Counsel are under n® obligations to apprise the adverse party of the objections intended to be made to the evidence. The effect of such a rule would be, not only to deprive the party of making an objection at the time •of trial, of which no notice had been given, but would in most cases be calculated to compromit the interests of the client, and would be dangerous in the extreme.

It is said, that the period which has elapsed since these depositions were taken, was-sufficient to remove any objeetions'to their being read in evidence. If the lapse of time can operate to take away the party’s legal rights, it could only be calculated from the period, when the knowledge of the facts, upon which the objection is founded, was first ascertained or disclosed. And therefore, in this case, the time that has elapsed is that which intervened between the Saturday evening preceding the trial and the day of the trial when the objection was made. It was not until Saturday evening, that the defendant’s counsel became acquainted with the fact of the depositions being in the hand-writing of. one of the parties in interest. There was, therefore, no unreasonable delay in making the objection, even admitting, that the lapse of time may affect the rights of a party, who. neglects to take advantage of his knowledge in a reasonable time. This is not such a case. But it is also said, that the death of the witnesses, which is the consequence of the lapse of time, would authorize the reading of these depositions in evidence. The death of witnesses may, it is true, justify the admission of depositions in evidence; but it cannot make incompetent testimony competent. I am not aware of any case, in which it has been held, that a radical defect in the taking of a deposition, has been cured by the death of the witness.

It is argued, that the depositions having been read on the former trial, and also to the arbitrators, without any objection being at that time made, they were therefore afterwards admissible, although objected to. This position is neither consistent with law nor common sense, and is contrary to the experience and practice of every professional man. It does not appear that the party knew at the time these depositions were read on the former trial, that they were in the hand-writing of P. C. Pendleton. Indeed Isaac Leet proves directly the reverse. He says, “the counsel for the defendants did not know that the depositions were in the hand-writing of Pendleton.” It is a settled principle of law, that the admissions of a party not acquainted with his legal rights, are not binding. Independent of the general principles of the law on this subject, the reading of the depositions, without objection, on a former trial, cannot impair the right of the defendant to make the objection on a subsequent trial. Counsel, in the hurry of trial, may overlook a legal objection, which may afterwards, in another trial of the same ease, occur to him; or which more experienced counsel,, subsequently retained, may notice. And to decide, that such objection could not be made, would be adopting adoctrine not only pregnant with injustice, but repugnant to every .principle of law. Indeed, in many cases new trials are granted merely because illegal evidence has been inadvertently admitted, This question has, however, been already decided by this ccui'-t in the case of Cox v. Norton, 1 Penn. Rep. 416, where it was held, that the fact of a paper having been given in evidence before arbitrators without objection, was no reason why it should be admitted upon the trial in court, if it were Otherwise illegal.

The general doctrine, that the deposition of a witness shall not be written, or drawn by the party, hjs agent, attorney, or any other person engaged in assisting him to conduct the suit, is, I trust, too well established ever to be shaken; and I trust, that this court will continue to decide upon the same principles, as are laid down in Summers v. McKim, 12 Serg. & Rawle, 410, and which are so fully approved of by Justice Rogers, in Addleman v. Masterson, 1 Penn, Rep. 457. 2 Penn. Rep. 200. P. C. Pendleton, who drew these depositions, was an attorney, and a party in interest. The most remote interest or relationship likely to produce a feeling or influence in favor pf the one side, and against the other, should always he sufficient to reject a deposition drawn by a person so situated. R is the duty of the court, and the object is certainly a laudable one, to provide every guard and protection against even the possibility of a bias in the taking of depositions, which species of evidence has indeed of late years almost supplied the place of oral testimony, the best safeguard against corruption, and the favorite of the common law.

The cqurt having erred in admitting the depositions, the judgment mqst he reversed, and a venire de novo awarded.

Jqdgment reversed, and a venire de novo awarded,