author: Gibson, C. J. Huston, J. Rooers, J,

text:
    BENJAMIN HART, for the use of JOHN SHAUB, against MICHAEL WITHERS, GEORGE WITHERS, and JOHN WITHERS, trading under the firm of JOHN WITHERS, & Co.
    IK ERROR.
    .One partner cannot bind his co-partner by deed, although it'be given in a transaction in the course of the business of the firm, and the benefit of the contract be received by the firm.
    In such case where an award had been made against the defendants, and by agreement they were let into a defence on the merits, without being in any degi ee prejudiced by 'the award, in their defence, they are not precluded by the agreement from putting in the plea of non est factum, and availing themselves of the fact that the instrument declared on, was executed but by one of the firm only.
    ‘But if such agreement had that effect, it would be waived by taking issue on the plea of non est factum, instead of moving to have it struck out. When suit is brought against several partners upon a sealed instrument, executed by one for all, the plaintiff cannot recover against the partner who actually executed the instrument alone.
    Error to the District Court for the city and county of Lancaster.
    In that court it was an action of covenant, brought by the plaintiff who was also plaintiff in error, against the defendants, upon the following agreement:

      “ Be it remembered, that on the 13th day of January, 1816, 5 have purchased oí Benjamin Hart, forty acres, or as much more as lie may choose to let me have of woodland on the place said Hart bought of Joseph Miller, in Colerain township, at the rate of twenty-four dollars per acre, The cutting to begin at the corner near John Caughey’s field, and from thence along the road to the lower end of the meadow on said place, and to cut back in regular proportions or distances from said road; and I do hereby agree to give to said Hart, as soon as the quantity is surveyed, three notes for the .amount, payable at either of the banks in Lancaster county, in equal proportion : the first note payable on the first day of July next, the second on the first day of October thereafter, and the third and last payment on the first day of January following. It is further agreed that I am to give said Hart two thousand good and sufficient chesnut rails out of said wood cutting, for which I am to have a credit of thirty dollars on the amount of the wood. The wood to be all cut before the first day of May, 1817, and the wood -to be coaled in the same season. In witness whereof, I have hereunto set 'my hand and seal the day and year first above written.

      John F/ithers, Co,

    Witness,

      William Murray,

      Joseph Miller.”

    The plaintiff entered a rule of reference, under which arbitrators were appointed, who on the 10th November, 1818, made an award in favour of the plaintiff for eleven dollars and seventy cents with costs. On the 22d March, 1820, the attornies of the parties agreed “ that the award of arbitrators in this cause should stand as a security for the sum, if any, which shall hereafter be found to be due on trial; and that the defendants are to be let into a defence upon the merits, without being in any degree prejudiced by the award in their defence.”

    The pleas of the defendants, upon which the cause was put to issue, were non estfactum, and performance with leave, &c.
    On the trial, the plaintiff after proof that the article of agreement on which suit was brought, was executed by John Withers, but not in the presence of the other partners, offered in evidence in connection with that agreement: “ the agreement entered in the cause by the attornies to try the cause upon the merits, and to show that S-t the time of entering into the article, John Withers, Michaet Withers, and Geo. Withers, were iron masters in company, that they acted and transacted business for each other, by one executing deeds in the name of one for the use of all of the company. That the whole proceeds of the timber were taken to the company works, and there used for the joint interest of the company, with the full approbation of all the defendants,”

      This evidence being objected to, was rejected by the court, and a bill of exceptions sealed.
    The plaintiff then offered this evidence against John Withers (the party who executed the article) alone, this was also objected to, rejected by the court, and another bill of exception thereupon sealed.
    These bills of exception were severally assigned for errors.

      Jenkins for the plaintiffin error,
    contended that the evidence was competent to charge the defendants upon the contract declared upon by the plaintiff.' It was incumbent on the plaintiff to prove that the defendants were partners, that the contract related to the partnership business, and that the deed declared on was the deed of all the partners. The evidence offered went to establish all these points. As a general rule it is conceded one partner cannot bind his co-partners by deed, but the partners may agree to be bound in that way, and then the deed of one would be binding on alb
    1. What agreement will confer this power 1
    2. What is the usual proof of such agreement %

    It- is not necessary that such agreement should be in writing, or under seal, it may be by parol. Watson on Part 1G3. As to the evidence of assent necessary to constitute such agreement, it has been held, that if they are present when the partner executes the deed, the co-partners will be bound; and this although silent when it is done. Their assent is in that case inferred. The evidence of assent may be either express, or inferential. It will be inferred from the acts of the parties at the time, or their subsequent approbation ; as where one partner for his private debt binds the firm, and subsequently the other partners assent to it, they are bound, and this too in a transaction not of the partnership. Watson cm Part. 169. The evidence offered went to establish this assent by proof, that the contract was beneficial to the partnership, that the fruit of it had been enjoyed by the firm, and that their usual course of dealing warranted this form of binding the firm. If the evidence did establish the assent of all the partners then they were all bound. This was for the jury to determine. One partner cannot bind the firm in a collateral gurrantee, but the assent of the other partners to such transaction will bind them ; and it is competent to show this by proof, that the partners usually gave such guarrantee. Chit, on Con. 74. If these partners wished not to be bound by this deed, they should have disclaimed it. Elliott v. Davis, 2 Bos. <$• Pul. 338. Silence is evidence of assent in many cases. 2 Siarkie: Ev. 38. If one sell the land of another in his presence, and he is silent, he cannot afterwards assert his title. To permit him to do so would be a fraud on the purchaser. And in our case, if in point of fact, to bind each other by deed, was the mode of dealing of these partners, it would be to permit a gross fraud not to receive evidence of it to bind them. A deed executed by one partner for all, may become binding by subsequent acts of ratification. Skinner v. Dayton, and others, 19 Johns. Rep. 513. This case also shows that authority to bind partners by deed, may be by parol. But the evidence offered should have been received against John Withers, who executed the article. Where a judgment bond was given by one partner in the name of the firm, a judgment entered on it, although not binding on the partner who did not execute it, is on him who did; and the court will permit the name of the former to be stricken out, and the judgment to stand against the latter.- Gerard v. Basse, 1 Dali. 119. 1 Black. Rep. 1133. Green v. Beals, 2 Caines R. 255. 4 Esp. Rep. 220. The agreement upon which the defendant was let into a defence, was an agreement to try on the merits; and on this ground the evidence should have been .recieved. It never was intended under that agreement that the defendants should be permitted to avail themselves of a defence purely technical, which this is.

      Buchanan, contra,
    contended that no position was better established than that one partner cannot bind another by deed. Wats, on Part. 160. The receipt of the consideration by the partners will not make it their deed, -although it may be in a partnership transaction. Harrison v. Jackson, et. al. 7 Term. Rep. 207. This-case is no way distinguishable from .that before the court. -It was a partnership transaction, on a full and valuable consideration received by the partners, and one partner executed the deed for all.
    In all commercial transactions one partner is considered the authorized agent of the co-partners, and they are in contemplation of law virtually present at, and sanctioning >the proceedings of each other ; but this holds only asto simple contracts. Taylor v. Coryell, 12 Serg. Sf Rawle, 243. Authority to one partner to bind others by deed, must be created by deed, no subsequent parol acknowledgment will do. 2 Caines R. 255. Chit. Con. 78. The case in .Wats, on Part. 163, is where the partner executed the-deed in the presence ofhis co-partner, with-his express assent, and as the deed of both: there both are considered as having executed it, the seal being adopted by the partner, who stood by, when it was put to the paper. But it is a very different case from ours, proceeding upon a principle no way connected with the doctrine of partnership. True in commercial transactions, Mr. Chitty says that subsequent assent is sufficient to ratify any thing done under the several power of the partners to bind each other ; but this is confined to commercial transactions and to simple contracts. In such cases the authority is implied, and subsequent acts and acknowledgments will certainly «confer it. But it is not so with .regard .to a contract by deed, and at all events, there is no case, where upon the plea of non estfacium, it was permitted to the plaintiff to prove the deed by evidence of subsequent assent on the part of the defendant. Upon this plea no evidence is competent but proof of actual execution.
    The case in 19 Johns. Rep. 513, was not between a stranger and the partners, but between the partners themselves, in which one partner asked contribution for money recovered against him on a deed executed by him for all, and in the name of all the partners. The question in that case was not upon the deed, and on the plea of non estfactum, but it was collateral to it; and very properly the enquiry was permitted as to the beneficial nature of the contract to the firm, and subsequent acts of ratification by the other partners. If a recovery had been had against John Withers alone on this article,, and he had brought suit for contribution, and offered evidence that the benefit of the contract had been recieved by the firm, then this case would be an authority.

      Hopkins in reply:
    these partners had authority to contract for each other, to promote the object of the concern. Here the fruit oftlie contract went to the use of the partners,, and the contract was made in the course of their business, and for their benefit. It is therefore a defence stripped of all equity, a mere legal shadow, and without justice. The action is an action of covenant, which in Pennsylvania is an equitable action. Kuhn v. Nixon, 15 Serg. Sf Raíale, 125. At law there is enough to avoid this technical defence,, but in equity there is no doubt. Assent is essential to constitute a contract, but it may be either precedent, concomitant or subsequent to it, and in either case, the same effect, a binding contract is produced. Here-the proceeds of the contract were received and used by the company with a full knowledge of the contract, surely this amounted to an affirmance of it. Watson, on Part. 163. The operating reason for the rule that one partner cannot bind his co-partner by deed, is that the consideration of a deed cannot be inquired into. This reason does not prevail in Pennsylvania, here the consideration is open for inquiry hr our courts of law; in England, in equity only, can this be done; and it would be against mercantile policy to allow the funds of the firm to be hung up until this question could be decided in equity. And in England, Lord Mansfield held in a case at nisi prius, it is true, that' where the debt was a partnership debt, one partner may give a bond for it, binding on the firm. But if the assent of the partners is given, there is an end of all reason for the rule. It is clear that where the partner is present when his co-partner executes a deed in the name of both, although there is no evidence- of express' assent, both are bound. Here the authority is by parol, and the assent is inferred from the presence, and silence of the partner. It establishes that assent may be shown by proof of circumstances: this being established, it is manifest that circumstances necessary to evidence such assent, will be as various as the transactions of men are diversified ; and the question must be submitted to the sound discretion of a jury. Mere presence is held to be sufficient evidence of assent; other circumstances may exist to demonstrate it more satisfactorily ; and it would be incongruous to say that actual presence alone is sufficient. One may seal for many, and if all consent, it is the seal of all, whether there be one or many seals. It is the consent then, and not the manual operation of sealing which makes the instrument. Randall V. Van Vechten, 19 Johns. Rep. 60. In this case there was a mere resolve of the corporation to pay five hundred dollars on the contract, and it was held such evidence of assent as would bind the corporation. The evidence of assent is much stronger in the case' now before the-court.- He referred also to Buchannan v. Curry, 19 Johns. Rep. 137. Although the case in 19 Johns. 513, is a case of contribution, the whole court went upon the principle that subsequent -ratification and assent were equivalent to actual execution by all thepartners. But the agreement to try on the merits, controls the defence, and excludes the defendants, from ground purely technical, and stripped of all equity.
   The opinion of the court was delivered by

Gibson, C. J.

The law of partnership is part of the law merchant, which has respect exclusively to the business of commerce : and as scaled instruments do not ordinarily enter into it, the authority of a partner being limited to the scope of the trade, is held to be incompetent to the execution of them- There may, indeed, be a partnership to carry on a business not purely commercial; still, however, the authority of the partners is regulated by the usages of trade. The measure of this authority allowed by the law merchant, being graduated to the exigencies of commerce by experience, is the wholesome and the convenient one; nor ought we, by an apparent hardship to be drawn into a desire to enlarge it. Undoubtedly the partnership had the benefit of the plaintiff’s wood; but he thought fit to furnish it on separate account; and even if he supposed in -point of law that the covenant of the party who scaled the deed, bound all the defendants, yet that, as we have lately determined in Moser v. Libenguth, (M. ss.) is not such a mistake as would entitle him to equitable relief; much less can we on the ground of an equity between the partners themselves, say that an instrument is a deed in equity, which is not a deed at law. That even a court of plenary chancery powers will interpose for or against a stranger, on the foot of such an equity, admits of more than a doubt. Skinner v. Dayton, is not that case; and I cite it merely to dissent from’a- point of doctrine asserted in it, on the authority of Ball v. Dunsterville, 4 Term Rep. 313, that an authority to one partner to bind the others by deed, may in some cases be by parol. I am at a loss to conceive how that ease can be deemed an authority for the conclusion deducedfrom it. It was the case of a bill-of sale, sealed by the one in the presence of the other, and delivered-as the act of both-; and it is therefore clear that the validity of the execution was not supposed to depend on the existence of a previous authority. A thing done in the presence of another and at his request, is his immediate act; as for instance the administration of an oath in the presence of a judicial officer, who hy the bye cannot-appoint a deputy. One may adopt as his own, a seal affixed hy another without his authority, or even against his will, and the delivery, being his immediate act, makes the instrument his immediate deed. The law is fixed and certain, that the authority of any agent to bind by deed, can in no case or under any circumstances be by parol.

But it is alleged that the plaintiff was entitled to treat this as the covenant of all the defendants, by their agreement in- the cause.He had obtained an award under the arbitration act, and the defendants, instead of appealing, agreed to let it stand as a- security for what, if any thing should- be found due, on terms of being, “let into a defence on the merits, without being in any degree prejudiced-by the award, in their defence.” This word “merits” has certainly no technical or definite meaning.; but I cannot understand how a defendant can he without merits, who cuts up the plaintiff’s title by the roots, hy showing that he never entered into the covenant, which is the foundation of’the action. Surely the avoidance of a conveyance by the statute of frauds, would be matter of defence on the merits in an ejectment. What was the object of this agreement ? Plainly to place the defendants in the situation in- which-an appeal would have placed them; and in consideration of the expense and trouble thus saved, can it be supposed that they consented to yield the whole ground of their defence, or at least an impassible part of it ? It seems to me that if any thing, were wanting to shut out such a conclusion, it would be found in the stipulation, that they were in no degree to be prejudiced in their defence by the award : in other words that for all the purposes of defence, they should be put in the attitude in which they stood before the reference. It was in their power, by appealing, to obtain the advantage of this defence, and it seems to me they ought not to be deprived of it by any thing less than a precise -and positive relinquishment. But even- if the agreement werq such as it is supposed to be, the effect of it was waived by taking issue on the plea of non est factum, instead of moving to have it struck out, Having thus staked his case on the existence of a fact, the plaintiff could not afterwards object to any evidence, which was pertinent and competent to prove it.

Huston, J.

In this case I will state very briefly the grounds on which I cannot concur with the opinion of the court.

The grounds on which one partner is not permitted to bind the other by deed in England do not exist, or at least, all of them do not exist here. They are 1st. That the consideration of a deed cannot be enquired into — here it can. 2nd. That a bond will bind the lands of any partner who has lands after his death — here a common note, nay account is recovered after the death of the debtor ' out of land. It is admitted even there, that one partner may bind another by bond sealed in his presence, although with but one seal. This must be solely because his assent is clearly proved by his being present and agreeing, not dissenting; now I cannot see why assent clearly proved in one way is not as effectual as assent clearly proved in another. Here the offer was to prove that each of the partners, who were iron masters and had lands in partnership, as well as chattels, were in the constant habit of making contracts under seal, which were ratified by the others, and the benefits enjoyed by them — that this contract on the face of it for wood, was for wood for their ironworks, and was actually used at them, and the benefit enjoyed by them all. I would then have permitted this to go to the jury, and if they found a clear assent either before or after, I would hold them bound. One partner is often bound in equity, differently from what he is at law, because he has received the benefit. Lang v. Keppele, 1 Bin. 123. I would confine the power to partnership transactions, and to property which came into partnership, and was enjoyed by them under a contract, which they knew was made by one of the firm. I would consider the case of partners, whose principal propertywas real estate, as more within the reason of what I have said, and hold them bound by lease, and other agreements affecting lands, wherever the whole company knew of, acted under, and derived advantage from such contract. As to the agreement by which the judgment was opened, and to try on the merits, whenever any person applies to open a judgment, he is bound to state all the objections which he then has, and every rule and principle, and practice requires this. No person should be permitted to make successively several objections, all of which existed at the same time. I would consider George as waiving all objections, except the one stated in his affidavit, viz. want of notice, and opportunity of appearing before the referees. .But further it was not agreed to set aside the judgment, it stood as a judgment, and the trial was only to ascertain (he amount. The article of agreement was merged in the judgment, and ought to have been admitted to prove the price, and quantity of wood, and to show that no receipts were endorsed on it. I am perfectly satisfied the resuh of this agreement is directly contrary to the understanding of at least one of the parties to it, and to what was intended by both when it was made ; or if one intended this plea, such intention was not made known. I would on the agreement consider this objection as not allowable.

Rooers, J,

dissented on the point as to the effect of the agreement to open the judgment, and let the defendants into a trial on the merits.

Judgment affirmed.


source: Caselaw Access Project

author: Gibson, C. J.

license: Public Domain

text:
    PETER SNYDER against HENRY ZIMMERMAN, and another.
    IN ERROR.
    Thebail on an appeal from the awai’d of arbitrators, under the compulsory-arbitration act, is not subject to the practice in reference to special bail. Where the appellee is dissatisfied with the bail, his course is to apply to the court for a rule for additional bail, and the opinion of the court that the bail is sufficient, is conclusive; he cannot treat it as a nullity, and issue execution.
    Bail may be dispensed with altogether, and suffering a term to pass without objection on the part of the appellee, dispenses with it.
    Writ of error to the District Court for the city and county of Lancaster.
    The case was this, on the 1st of November, 1824, an award under the compulsory arbitration act, was filed against the defendants for three hundred and ninety dollars and ninety-two cents: they appealed, and Richard Ream entered into the recognizance as their security; on the 27 th of November the plaintiffs attorney excepted to the bail entered, on the 1st December notice of the exception was proved, and filed. On the 6th of December a new recognizance was entered into by Curtis Ream as security; on the 13th December the plaintiff excepted to Curtis Ream as bail. On the 18th, notice of this exception was given, and on the 31st Curtis Ream made an affidavit, which was endorsed on the back of his recognizance, “that he was a freeholder worth eight hundred dollars, after paying all h'is debts.” This affidavit was made before the Mayor of the city of Lancaster. The plaintiff disregarding the appeal, issued a fi. fa. to June term, 1825, on which a levy was made on the personal and real estate of the defendants, who gave notice to the sheriff not to sell. The sheriff sold the personal property, and the 13th August, 1825, held an 'inquisition on the real estate, and on the 28th of August sold it. On the 5th of December, 1825, a rule to shew cause why the fi. fa. &.c. should not be set aside, was obtained, and on the 17th June, 1826, the -rule was made absolute and restitution awarded.
    ■The District Court sits on the second Monday 'in June, -and on the first Monday of September. This writ of error was taken by the plaintiff, who now assigned for error, that
    •1st. The award of the 1st of November, 1824, was not appealed from, the bail attempted to be given being entered without notice ;to the plaintiff and therefore a nullity.
    2d. The bail entered after the exception taken to the first bail was without notice to the plaintiff, and without justification, and therefore illegal and void.
    .3d, The .Mayor .of the city of Lancaster had no authority to take the affidavit made by .the bail, and it did not therefore amount to a justification.

      Hopkins, for the plaintiff in error,
    contended that bail on appeal from the award of arbitrators should not be permitted to be entered without notice to the appellee. Under the act of Assembly., Pardon’s Dig.. 20, certain requisites are required to enter an .appeal, and these must be literally observed. ' The .omission of the word firmly,, in the oath required upon the appeal has been decided to be fatal to it. It is of much more consequence that sufficient bail should be entered. The party to be affected has an undoubted right to call in question their sufficiency. But how can he have the exercise of this right unless notice to him be required. The prothonotary is but a ministerial officer, and bound to receive the bail offered de bene esse. If the bail is not entered, it is the duty of the prothonotary, at the request of the. party in favour of whom the award is, to issue execution. He referred to Donaldson v. Cunningham, 13 Serg. ¡fyMawle, 243. " >

    The case of Jones v. Badger, in 5 Bin. 461, is not like this case, for there the appellants gave notice that the cognizors would answer any questions. Without this notice, the appellant may enter whom he pleases, and the provision of the act of Assembly for sufficient security is inoperative. But after notice of exception, at all events new bail cannot be entered without such notice.
    In England, the party must give notice of entering special bail, and without such notice the bail is a nullity. 1 Archb. Prac. 80. ■Here after exception had been taken, the new security, without notice to the party, justified before the Mayor, who had ho authority, to receive such justification. Bail must be taken before a person having competent authority, before the court, a judge, or a commissioner of bail, Jones v. Badger, 5 Bin. 462.- In the incipient stages of a cause, if notice is not given of entering special bail, the plaintiff may sue the bail bond, and in error, if the bail do not justify upon notice, the bail may be treated as a nullity, and execution issued.

      Porter and Buchanan, for the defendants in error,
    were requested by the court -to confine their argument to the third error assigned.
    They argued that whether the Mayor had the, power to administer this oath to the bail or not, was a matter of indifference. The appeal was regularly entered, and if the appellee were dissatisfied, he should have applied to the court, he could not disregard the appeal and issue execution. The right of appeal is liberally construed to preserve the trial by jury, which the arbitration law. in some sort impugns. By the terms of the act of assembly, no notice is required of entering bail to obtain an appeal, and it has never been the practice to give such notice.
    The rules as to the mode of entering special bail are not.appli-cable to entering bail for an appeal under the arbitration act. This was long ago decided in Jones v. Badger. - But the justification was well taken before the Mayor. Administering an oath both here and in England is a ministerial act, and the Mayor had power to administer oaths, which is enough. They referred also to Means v. Trout, 16 Serg. Sf Rawle, 349.
    In case the appellee was dissatisfied, application should have 'been made to the court at the next term after exception taken. Zeigler v. Fowler, 3 Serg. fy Rawle, 238. Cochran v. Parker, 6 Serg. Sp Rawle, 549. Here he suffered that term to pass, and comes too late upon this exception.
    This writ of error is not well taken, and should have - been quashed: an appeal is still pending, and there is no final judgment in the case, Gardner- v. Espy, 1 Penn. Rep. 73, and the execution ■could not be issued in the face of the appeal.

      Hopkins, in reply.
    We excepted to the bail, and it was for them to justify; and they should have done this by the next term, and it is they who have slipped their time.
    The Mayor has no greater or other power in this respect than a justice of the peace; and if a justice has the power to take the affidavit of justification on exception to special bail, he must hear .and determine the question judicially, which must be incongruous.
    Two- terms elapsed after execution was issued before application -to the court to set it aside, such application was then out of time.
    A motion to quash the writ of error cannot now be entertained. After joinder in error such motion is never received.
   The opinion of the court was delivered by

Gibson, C. J.

The bail in an appeal is not subject to the practice in reference to special bail. Where the appellee is dissatisfied, his course is a rule for additional bail; but where, as here, the court is of opinion that the bail is sufficient, there is an end of the matter. The allegation that the justification was before an aider-man, is inaccurate in point of fact. The affidavit of sufficiency was merely sworn to before the alderman, who did nothing more than administer the oath, as under his general powers he might well do. But even were the appeal erroneously taken, the appellee precluded himself from insisting on it. Whether erroneously or not, it was actually taken, and could not be treated as a nullity, without having been formally quashed. Bail may be dispensed with altogether, and it has been repeatedly determined that the appellee does dispense with it by suffering a term to pass without objection. Here there was an appeal actually taken which is still depending; and the execution having issued without a valid or existing judgment to support it, was properly quashed.

Order of the Common Pleas affirmed.


author: Rogers, J.

text:
    M‘KIM and ARMSTRONG, against SOMERS.
    IN ERROR.
    Where the plaintiff interrogated defendants witness, as to a conversation •which had taken place between him and a certain W. B. ; and the witness stated the conversation, by which it appeared that he had not told W. B. all that he related in court, and the plaintiff then asked him “ why did you not tell the whole truth to W. B. ?” And the witness replied “1 kept it back because I was living in plaintiff’s house, as tenant, and if I had told it, he would have thrown me out neck and heels, he would have knocked my brains out; as soon as he did know it, he took out a landlord’s warrant,” and the plaintiff then called W. B. and by him gave evidence to contradict the statement made of the conversation: Held that it was competent to the defendant to give evidence, that the plaintiff was a quarrelsome and dangerous man to those he had a prejudice against.
    Wherever a person has colour of authority, and acts under a commission from the appointing power, but which it may be alleged has been forfeited by some act, perhaps of an equivocal nature, in all such cases the validity of the commission cannot be examined in a suit in which he is not a party. If a person usurp an authority to which he has no title, or colour of title, his acts would be simply void. But a colourable title to an office, can be examined only in a mode in which the officer is a party, and before the proper tribunal, the Supreme Court, in whom by act of assembly all the authority of the King’s Bench is vested. It is not therefore competent, when a deposition is offered in evidence, and the commission of the justice of the peace, before whom it was taken, is shown ; to - prove that, after he was commissioned, he removed out of his proper county, where the deposition was taken, and thereby vacated his office.
    When a party has an opportunity of being present at the taking of a deposition, and does not choose to avail himself of it, he shall not afterwards be permitted to except to a leading question, and answer in such deposition, or to make formal objections against it. When a party attends, and objects to the form of the question, then if the opposite party persists, he does it at his peril.
    Error to the District Court for the city and county of Lancaster.
    On the trial of this cause, the defendant, who is also the defendant in error, for the purpose of proving a payment of one hundred and twenty dollars to the plaintiffs, examined a witness of the name of Jeffries Marsh, who in his examination in chief, testified to the fact of the payment. For the purpose of destroying the testimony of the witness, the plaintiffs interrogated him, on his cross examination, as to a conversation which had taken place between him and a certain Wallace Boyd. The witness stated the conversation, by which it appeared, that he had not told to Boyd, in that conversation, ail that he related in court. Whereupon the plaintiff’s counsel asked him the following question : “ Why did you not tell the whole truth to Wallace Boyd 1” To which he replied as follows : “ I was not on my oath, and I was not bound to confess to Wallace Boyd. The reason I kept it back was, I was living in Wm.

      MKim’s house as tenant, and if I had told it, he would have thrown-me out neck and heels. If I had begun that kind of talk, he would have knocked my brains out; you would not have been troubled with judge and jury. As Soon as he did know it, he took out a landlord’s warrant.” After the defendant had gone through his testimony in chief and rested, the plaintiff called Wallace Boyd for the purpose, among other things, of contradicting the statement made by Jeffries Marsh, of the conversation which he alledged he had had with William Boyd. The defendant then offered to prove by Boyd, that MKim was a quarrelsome and dangerous man to those he had a prejudice against; to this testimony, which was received by the court, the plaintiff excepted. The plaintiff also objected to the admission of a deposition in evidence, on the ground that Joel C. Bailey, the person before whom it was taken, w>as not a justice of the peace. On the objection being made, the defendant read in evidence a commission from the Governor, bearing date the 28th March, 1821. The plaintiff then offered to prove “that since the date of the commission the said Bailey removed from the county of Chester.” (in which he had been commissioned, and where the deposition had been taken,) “ to the city of Philadelphia, that he rented' a tavern in the city, and kept a tavern there for eighteen months, and afterwards returned to reside in Chester county; that during his residence in Philadelphia, another justice was appointed in his stead, in the district where Bailey had been a justice.” The court refused to receive this testimony, and admitted the deposition, and sealed a second bill of exception. The plaintiffs, who were present when the deposition was taken, but objected to its being taken, on the ground that Bailey had no authority to take it, and took no part in taking it, objected to the admission in evidence of this question, and answer in the deposition. Question by defendant, “ did captain M‘Kim tell you that he had received one hundred dollars of me in Wilmington and Brandywine money.” Answer “yes.” The court overruled the objection and the bill thereupon sealed constituted the third bill of exceptions. The plaintiffs in error, who were also plaintiffs below, now assigned error in- each •of these bills of exception.

      Parke for the plaintiff in error.
    The plaintiffs did not attempt to disprove the reason why the witness had not told Boyd the whole truth, the evidence given by them went to impair his testimony on other grounds. The testimony then as to the character of M‘ICim, was not in contradiction to any evidence given by the plaintiffs, but wholly irrelevant, and introduced to fortify a witness, who as to this point had not been attacked; and this too in violation of the well established rule, that the character of the party in a civil suit cannot be given in evidence. Anderson v. Long, 10 Serg. Rawle, 60. JVash v. Gilkeson, 5 Sefg. Rawle, 352.

      Second bill of exception.- The commission of a justice of the peace is vacated by his removal out of the county, (within which he is' commissioned;) animo residendi. The county bounds the jurisdiction of a justice, the district for which he is commissioned is his residence. Respublica s. M‘Clean,- 4 Yea-tes: 399.- Commonwealth v.-Sheriffof Northumberland, 4 Serg: Rawle, 275. It was proper to prove that the justice had by removal vacated his commission, and had consequently no power to administer the oath- to the witness. Qsb-urn v.- Ross, 8 Bin. 539. The deposition could only be taken by a person having- t-hat power.* Keller v. Nutz, 5 Serg. Sf Rawle, 246.

    The defendant is not helped by the* distinction between officers' defacto and dejiire. There catinotbea justice of the peace de facto,he exists dejure, or not at all. An officer de facto comes in by colour of right, in which Cáse' his office' is vacated on a quo warranto: A bare swearing in and acting does not make a man an officer defacto,-■ and unless there is some form of election, he is a mere usurper. Rex v. Lisle, 2 Strange, 1090. Andrews, 16-3.* Baird v. Bank of Washington, 11 Serg. Sf'Rawle, 411. If a justice resigns he ceases' to be a justice, and any act done by him after such resignation,would be the act of a mere usurper! His removal from his proper' county has the same effect, it vacátés his office defacto and de jure;' after this he could not be sued for any act done as an officer, for which otherwise he would have been officially responsible; nob would the individual who made a deposition beforé him, be indictable for perjury in case the deposition was false.- Public policy too,requires, that in this'country, where officers are continually changing by election ob appointment, that théir power should cease as to all the World, when they go out of office.
    As to the third bill of exception, he contended that where the party refuses' to take any part in taking a deposition, he must be: considered as absent, an'd in that case, if a leading question be put and answered, and received in evidence it would be error.

      W. Hopkins and Hopkins fob the defendant in' error,
    were desired by the court to confine their argument to the 2nd bill of exceptions. Whether the justice of the peace, before whom the deposition was taken had de jure a right to exercise the powers of that office, was not open for enquiry in a collateral proceeding.-■ It was- enough to show, as was done by producing his commission, that he acted by colour of office, in the district for which he had been appointed. Indeed as to third persons; it is enough to proye that he acted as a public officer, without producing his appointment. Porters. Luther, 3 Johns. R. 431. He is an officer defacto, and that is all we were required to show, and where such officer claims to exercise his office, his right cannot be brought into question in a proceeding to which he is not a party. Commonwealths. Fowler, 10 Mass. R. 290. In all collateral controversies, in which the officer de facto js not a party, his acts are conclusive as to his authority. Parker V. Luff-borough, 10 Serg. Sf Ramie, 249. Baird v. Bank of Washington, 11 Serg. Sf Ramie, 411. Riddle v. County of Bedford,! Serg.Sf Ramie, 386. The attempt in a collateral way to enquire on the part of third persons into the complicated question, as to the right particularly of a judicial officer to exercise his office, must be always abortive as it respects the officer, who would not be bound by a proceeding in which he is no party, and productive of an obstruction of justice, as it regards others, who are usually ignorant of the precise circumstances in regard to the authority claimed and exercised. The cases relied on by the plaintiffs in error, are cases in which the officer was himself a party, instituted for the very purpose of enquiring into the authority by which he claimed the office, and in some of these cases the distinction is taken between such direct enquiry, and where it is made in a collateral proceeding. In the former the right may be enquired into, in the latter it cannot.

      Buchanan, in reply.
    The question put to the witness as to the reason why he had withheld the whole truth from Boyd, was a pertinent question, and the answer of the witness was uncontradicted, and should never have been permitted to be made the ground of an attack upon the plaintiff, calculated to have an influence upon the jury, wholly distinct from the object professed. Starkie Ev„ 4 pt. 366. Neither- reputation of character nor facts establishing character are proper for enquiry, even although the character of the party is incidentally in issue, by charging a fraud upon him. Phil. Ev. 139. Were it otherwise, an endless enquiry would be opened. If the party could get a witness to say his adversary was a quarrelsome man, he may, to corroborate his witness, according to the doctrine established by the court below, go into proof that he is quarrelsome, and then an interminable investigation is open as to circumstances of provocation, the measure of revenge, or the nature of transactions involving the acts ofhis whole life, and leading off from the issue between the parties.
    Second bill of exception. There was no attempt on the part of the defendants to prove that the justice was an acting justice of the peace, but he relied on his commission to establish, that de jure he was such justice.- If it had been proved that he acted as a justice, the case might fall within the principle of some of the cases cited, giving to his acts the character of those of an officer de fado.' But that point is not presented, but the enquiry is, whether an individual, who does a' single act as a judicial officer, shall be considered as having full power to do that act, without any right on the part of those who are effected by it, to enquire into his authority. It is an important right to have witnesses examined in open court, in the presence of the court and jury; but to permit a deposition to be taken by a person who is without power to administer an oath, and as a consequence, that the witness shall not-be responsible for false swearing in faking that oath, is a monstrous .violation of the wholesome principles of the common law.
    The cases relied on by the defendants in error, are cases of ministerial officers, whose authority had been conferred, but some requisites omitted: as to third persons, their acts are not open to enquiry. But in no case has it been held, that it may not be shown that a person claiming to exercise a judicial office has no authority to do so; and that the fact of his acting, is conclusive upon third persons as to Ins right to act. 4 Starkie Ev. 4 pt. 1135.
    On the third bill of exceptions, he referred to Withers v. Gillespy, 7 Serg. Razóle, 10. Sheeler v. Speer, 3 Bin. 132. Strickler v. Tod, 10 Serg. ¿f Razóle, 63.
   The opinion of the court was delivered by

Rogers, J.

(who recapitulated the facts of the case.) When it is recollected that Jeffries Marsh was a principal witness for the defendant, and that the plaintiff had attempted to impeach his veracity on his cross-examination, and by the evidence of a witness, to contradict him, it became a matter of vital importance to the defendant and the witness himself, that he should be sustained. It is in vain for the plaintiff’s counsel to say, that they had not attacked the character of the defendant’s witness, for this is expressly contradicted by the bill of exceptions. Marsh says the reason he did not tell to Wallace Boyd, what he knew of the payment, was a fear arising from the violent temper of William M‘Kim. And this reason, if true to the extent stated, would account satisfactorily to the jury, for the suppression of part of what he knew in relation to the alleged payment. It became then important that facts should not rest upon his testimony alone; and there can be no doubt that the defendant would have a right to fortify his case by proving by other witnesses, the truth of the facts stated by him, as reasons for his conduct For instance, it would have been competent for him to show that the witness was living at the time in M‘Kim’s house as tenant, and also to prove that as soon as MKim knew he had spoken about it, he had taken out a landlord’s warrant. But it is said that the evidence which is admitted is putting the plaintiff’s character in issue, and that this cannot be done in an action of assumpsit, and for this the plaintiffs counsel have cited Philips and Starkie. No person pretends to dispute the general principle. This is not an attempt to put in issue the character of William MKim, but to prove from the knowledge of the plaintiff’s witness himself, the fact that William M‘Kim was a quarrelsome and dangerous man, to those he had a prejudice against. And this evidence, it will be recollected, is given to shield the character of a witness who had been attacked by the plaintiff. If this evidence leads to an enquiry which might effect the standing of MKim, he has his own counsel to thank for it; for it was in answer to an enquiry from them, that he gave the reason why he did not state to Wallace Boyd, all he knew of the ■transaction. Had the counsel for the defendant omitted to prove the temper and disposition of MKim, no doubt the jury would have been told that it was -a mere excuse, totally untrue, resting ,on his own statement, and perfectly ridiculous in itself. The temper of MKim gave probability to the reason assigned by the witness, and in this point of view it was material that no doubt should rest upon it. It is too much the habit of counsel -to abuse and villify witnesses. It is the duty of the court to protect them, by affording them some latitude to defend themselves from the slanders which are often heaped .upon them, ,Under the peculiar circumstances of this case, we are clearly of opinion that the testimony was rightly admitted by the court.

The plaintiff also objected to the admission of a deposition in evidence, ,on the ground that Joel C. Bailey, the person before whom the deposition was taken, was not a justice of the peace. Whether the facts alleged in the bill of exceptions would vacate the commission of the justice, we are not called on to determine. Whenever an information is hied, it will be time enough to determine the question. At present, vve would think it improper even to intimate an opinion. And this is not accorded to Mr. Bailey as ■a favour, but is nothing more than common, even-handed justice, that he should have an opportunity of being heard, and be permitted, if occasion should require it, either to traverse the facts, or .contradict the conclusions of law attempted to be drawn from them. It would be the height of injustice if we were now to determine, or even suffer his right to hold his commission to be called in question, in a cause in which he is no party, and cannot be heard. The counsel for the defendant objected to the court going into the question whether he was a justice d.e jure at all, and in this we conceive they were in the strict line of their duty. They contended, and with a force which has not been weakened by the reply, that it was sufficient for their purpose that he held a commission from competent authority, and that in taking the deposition, which is an official act, he was acting in the district for which he was appointed; that this constituted him a justice de facto, with at least colourable authority; and that as long as the commission remained, without being superseded by the Governor or vacated by the Supreme Court, the validity of his a,cts could not be questioned. One would have supposed that these reasonable objections would have been entitled to some respect. For, setting aside the extreme injustice of impeaching, or even impairing the right to .an office, without giving an opportunity of hearing to the party principally effected by the decision, the inconvenience, and I may add, in some cases, the indelicacy of the inquiry, would be intolerable. If the plaintiffs had been heard in this preliminary matter, the opposite party would have been permitted to controvert the facts by the introduction of testimony on their part. And this would open a scene which I should be sorry to see exhibited in a court of justice. An examination would ensue before the court, which in some cases would last a week, whether a deposition should be received, in a cause of the most trifling nature and amount. As the court would be both judge and jury, the inconvenience of this novel doctrine would cause them to pause before they acceded to it. If I understood the counsel, they admitted the law in its full force, as respects ministerial officers, but denied it as regards judicial officers. I should have been pleased to . have seen some authority in which the distinction is taken: the reason for such a distinction is not very apparent. If this be law, as regards ministerial officers, which may be shown by a host of authority. I say, a fortiori it should be so held in the case of judicial officers. The law is founded on policy and convenience, reasons which apply with tenfold force to officers of the latter description. The constitutionality of the laws establishing the several District Courts of this State has been denied by some, although I am not among the number. Would the Common Pleas of Lancaster, York, or the city of Philadelphia have a right to call in question the validity of the commissions of the judges of these courts, on an objection to the reading of a deposition? Nay more, would every court of Common Pleas, or justice of the peace in the State have the same power, would a justice of the peace or Court of Common Pleas have a right to question the commission of one of the judges of the Supreme Court, on an allegation of a removal from the State? We occasionally visit our friends in the neighbouring States, and it would be a singular spectacle if our offices should be vacated in our absence, on the plea that we had become citizens of another state. If this should be law, offices are held, by a most precarious tenure. No court professing the slightest tincture of judicial science, have ever undertaken to examine the right to office, either on vyril of error, certiorari, or when the matter came incidentally before them. In the Commonwealth v. Bache, this question came before the Supreme Court. Richard Bache was indicted for an assault and battery on Alderman Binns. The indictment contained two counts: one for an assault and battery; the other for an assault and battery upon Alderman Binns, while in the execution ' of the duties of his office. It was the opinion of the whole court, that Mr. Binns5 right to the office he held, could not be questioned on the indictment; and we accordingly suspended giving judgment, and put Bache to an information, in the nature of a writ of quo warranto. This case is exceedingly strong, for the act of assembly enacts in express terms, that the acceptance of certain commissions named in the act, makes the commissions .of alderman, justices of the peace, &c. null' and void. It is strange that if the law be as stated by the counsel for the plaintiff in error, we have not some trace of it in some adjudged case, or elementary treatise.

The pivot on which the argument of the plaintiff’s counsel turned, was that a false oath, taken before such a justice, is not punishable as perjury. For this I should also have been glad to have had some authority. So far from this position being correct, I find the law differently stated in 2 Hawkins, 89, a book of undoubted authority, and in a case bearing great analogy to the present. It has been adjudged, says the commentator, that a false oath, taken before persons, who having been commissioned to examine witnesses, happen to proceed after the demise of the King, who gave them their commissions, and before notice thereof may be punished as perjury: for it would be of;the utmost ill consequence to make such proceeding void; and therefore, though all commissions legally determine by the .demise of the King who gave them, without any notice, yet for the necessity of the case, whatever is done before such notice, must be suffered to stand good: for otherwise the most innocent and most deserving subject would be unavoidably exposed to numberless prosecutions for doing their duties, without any colour of fault. I put this case; would the ■Court of Quarter Sessions of this county, suffer the constitutionality of the law establishing the District Court to be enquired into, on an indictment for perjury, committed in a cause tried .before .the District Court?

The distinction is between oaths taken before persons merely acting in a private capacity, and those who take upon them to administer oaths of a public nature, without legal authority, or ¿colour of authority. Wherever persons who have colour of autho-, rity, acting under commissions from the appointing power, but which it may be alleged have been forfeited by some act which may perhaps be of an equivocal nature, in all such cases the validity of the commissions cannot he examined in a suit in which they are not a party. The regular, and indeed the only mode is by information. If a person usurps an authority to which he has no title nor colour of title, that would present a different case; for every act of such a person would be simply void. But the law pays such respect to those who are clothed with even colourable title, as not to permit the title to be examined except in a mode in which they are parties, and before the proper tribunal, the Supreme Court, in whom by act of Assembly, all the authority of the Court of the King’s Bench is vested.

The plaintiff in .error further objects to the admission of the following question and answer, in the deposition. Question, by defendant — “ Did Captain MsKim tell you that he had received one hundred dollars of me, in Wilmington and Brandywine money!” Answer — “ Yes.” This was opposed on the ground that it was a leading question. The court overruled the objection, and of this' the plaintiffs in error also complain. At common law, depositions were not received in evidence, and if received at all, it was with great caution. It was thought, and justly too, that viva voce testimony was much better than depositions. But experience has taught us, as commercial transactions multiplied, and commerce extended, that the use of depositions fends to expedite causes, and indeed is indispensable in the administration of justice. Hence id modern times, they are guarded, but not put under unnecessary restraints. In Shaler v. Spear, 3 Bin, 130, it was decided that a leading interrogatory put to a witness, should be objected to at the time it was put; it cannot be objected to on that ground alone at the trial. And in Strickler v. Tod, 10 Serg. & Rawle, 70, the same principle was recognized. It is said, and perhaps truly, that both parties appeared at the taking of the deposition, though this does not appear in Strickler v. Tod. And in neither case is the decision put upon that ground. Although M‘Kim was not actually present at the time the question was asked, yet he might have been present. Instead of attending to the taking of the deposition, he enters a protest against taking it at all, without stating his reasons; and therefore,- (not because he had no notice,) it was taken in his absence. When a-party has an opportunity of being present, and does not choose to avail himself of it, he shall not afterwards be permitted to make formal objections against it. Depositions are frequently taken by the parties themselves, without the aid of counsel, and are generally very inartifi.cia.lly drawn. If we were to listen to captious objections, it would impair the utility of such proof, particularly in case of death. When á party attends, and objects to the form of the question, thén if the opposite party persists, he does so at his peril. This is giving suitors every advantage which policy requires, and I am not for extending the privilege any further.-

Judgment affirmed-