Buchanan and others v. Moore. ander and Thomas Buchanan. Seven bills of exceptions to evidence were taken by the defendant's counsel, in the course of the trial. 1st and 2d. The two first bills of exceptions depend on the same principle. It was proved, that search had been made in the prothonotary's office, for several judicial writs, necessary to the completion of the plaintiff's title, and that they were not to be found. It was proved also, that these writs were once in existence, and the plaintiff then offered in evidence the docket of the Court of Common Pleas, by the entries in which it appeared, that such writs had issued and been returned. This evidence was objected to by the defendants' counsel, and admitted by the court. I have no doubt, that the docket entries were evidence. The best evidence would have been the writs themselves, returned by the sheriff. But we know too well, by sad experience, that the loss of writs, after they are returned, is no uncommon thing. In such cases, the law admits secondary evidence, and surely the docket entries may be received as such. They are, in their nature, more to be relied on, than the memory of any man. And although they are but short minutes, yet they contain the substance of the transaction. When it is said, in a few abbreviated words, that a fieri facias or venditioni exponas issued to a certain term, and that the sheriff returned, levied on certain lands, inquest held, and condemned, and lands sold for a certain price, to a certain person, we understand the whole matter as perfectly as if the writs and returns had been recited at large. And these entries having been made by a confidential officer, in a public book, preserved among the records of the court, it cannot be denied that they are entitled to great weight: Indeed, they have been frequently admitted as evidence, in cases of this kind, and there can be no reason for questioning the propriety of the practice, 3, 4. The 3d and 4th exceptions are in many respects of the same nature and may be considered together. It may appear strange, but so it is, that the only matter in dispute was, what was the land sold by the sheriff to the plaintiff. It was described in very vague terms, "200 acres of arable land more or less, in Newton township, bounded by lands in possession of Thomas and John Russel, with a saw mill thereon." Now the fact was that Buchanan, had adjoining lands, which originally were two different tracts, but as the plaintiff alleges, had been long considered and held as one tract, and the question was, whether both were sold, or only one. In order to prove that the sale was of both, the plaintiff offered the depositions of George Stroop, whose evidence tended to show, from a conversation between him and Thomas Buchanan, one of the defendants, that the said Buchanan, understood the sale to be of both tracts. The plaintiff offered to prove also, by James Lamberton, that at the time of sale, Thomas Buchanan, publicly spoke of the quantity of land then exposed to sale, as be (Buchanan and others v. Moore.) ing more than was contained in either of the tracts taken separately. To all this evidence the counsel for the defendant objected, but the court admitted it. This evidence does not appear to be at all inconsistent with the deed. It proved the impression of the defendant that the tract of land described by the sheriff, as 200 acres more or less, was considerably more than 200 acres. This might assist the jury in identifying the land. When they once made up their minds on the question, whether the two tracts were considered as one, the rest would be very easy, because the lines of each tract were known. Although the description in the sheriff's deed was vague, it was not so much so, as to be void, for uncertainty. And in construing that deed, it was proper and indeed necessary to inquire by evidence dehors, whether Mr. Buchanan's land had been generally considered and spoken of as only one tract, or as two. His own understanding on that point was certainly important, and I cannot see why the evidence should not have been admitted. It was urged as one reason against the evidence, that Mr. Buchanan had been discharged by the insolvent act, and assigned all his property for the benefit of his creditors, and therefore his confession ought not to prejudice his creditors who were the persons most interested in this suit. But to this it was answered, that the assignment in trust for the creditors, though made a long time ago, (not less than 20 years) had never been acted on. The assignees never accepted the trust, and Mr. Buchanan, had always retained the possession of the land. Considering these circumstances and moreover, that Mr. Buchanan was the only person who has conducted the defence in this suit, without an interference on the part of his creditors, I think that his confessions were evidence against himself, and that his creditors ought not to be regarded. It may be, (and the conduct of the creditors gives countenance to the supposition) that he has made some arrangement, by which he is to retain his right to the land now in dispute, and in that case, although he assigned for the benefit of his creditors, these would be a resulting trust, quoad hoc for his own benefit. But there was a part of George Stroop's deposition to which there was a special objection, on a ground not yet touched. Stroop swore, that Thomas Buchanan told him the lands were not properly described in the advertisement of sale, and that at some other time he would give him a proper description. That accordingly, Buchanan called on him some time afterwards, "with a small paper containing a description of his lands advertised for sale, in which the saw mill tract was described, as containing upwards of 300 acres." The objection to this part of the deposition was that the description being in writing, parol evidence of its contents was not admissiblewithout notice having been given to Buchanan, to produce it. The objection was good. The parol evidence ought not to have been received. The very same point was decided in the case of Freeman (in error) v. Pennock's Administrators, (Lancaster, May, (Buchanan, and others v. Moore.) 1821,) not yet reported. Until Buchanan refused or neglected, to produce the paper alluded to, on notice, the evidence of Stroop, was not the best which the nature of the case admitted of. In the admission of this part of the deposition there was error. 5th. After the levy was made on Buchanan's property, and before the sale, while he remained in possession of it, he made a return to the assessor, in which these two tracts were described as one. The plaintiff offered this return in evidence, and the court admitted it, to which the defendants excepted. I think it was good evidence, on the same principle that the confessions of Buchanan, mentioned in the Sd and 4th exceptions were evidence, on which I have before expressed my opinion. 6th. The 6th exception was to part of the testimony of Matthew Woodburn, a witness for the defendants which the court rejected. Woodburn was describing the boundaries of the defendants' land, and mentioned a certain line as having been shown to him by William Appleby, who was living at the time of the trial. The rule is, that in cases of boundary, the declarations of deceased persons are evidence. The law on this subject is accurately stated in 1 Phill. Evid. 182, (New York, Ed. by Dunlap,) where the general rule is given with the exceptions, and in page 164, after citing a variety of cases, it is said, that "in all the cases which have been mentioned on this subject, the person who made the declaration was deceased at the time of the trial." And there is great reason for the law being so held-why should the declarations without oath, of a person who may be produced, and examined on oath, be evidence? why should the party against whom the evidence is offered, be deprived of the opportunity of cross-examining the witness? In case of death there is a necessity. But while the witness is living, there is no pretence for dispensing with the general rule, which rejects all testimony except on oath, and in the presence of the parties to the suit. I am of opinion therefore, that there was no error in the rejection of this evidence. 7th. The 7th and last exception, was to the rejection of the evidence offered by the defendants of the annual value of the land sold by the sheriff to the plaintiff. I do not think that this evidence was proper. The question was, whether the sheriff sold the land claimed in this suit. Its annual value was immaterial. The evidence might have led the jury astray from the true point of inquiry. It might perhaps have had some influence on their finding, in a doubtful case. They might have leaned against the plaintiff, because he had got the worth of his money, though he lost the land in dispute. Upon the whole, I am of opinion that the judgment should be reversed, and a venire de novo awarded. Judgment reversed, and a venire facias de novo awarded. VOL. X. 2 N (Brindle and another v. M'Ilvaine.) [CHAMBERSBURG, October 17, 1823.] BRINDLE, and another against M'ILVAINE. IN ERROR. Where grants are made of the same land to contending claimants with general warranty, the widow of the grantor is a witness in an ejectment by one against the other, for her interests are in equilibrio. The declaration of the obligee of a bond before assignment, as to his being paid the amount, are evidence in a suit to recover land in consideration of which the bond was given, brought against one holding the land by deed from the obligee of the bond, and holding the bond also by assignment. If the defendant give in evidence a verdict and judgment in a former suit respecting the land in controversy to which the plaintiff was party, the plaintiff may show that the evidence given in the present cause was not known or produced. Evidence is not admissible to show the general character of a witness for drunken. ness. [For the former reports of this case see 7 Serg. & Rawle, 345, and 9 Serg. & Rawle, 74.] This was a writ of error to the court of Common Pleas of Franklin county, a verdict and judgment having been there rendered in favour of the defendant in error the plaintiff below. It was an ejectment for 25 acres of land in Franklin county brought against George Brindle and John Brotherton, by Elizabeth McIlvaine, the plaintiff below who having died subsequently to the institution of the suit, Alexander M'Ilvaine, her heir and devisee was substituted in her place. Both plaintiff and defendant claimed under Robert Haslet who was seised in fee of a large tract of land of which the 25 acres in dispute were part. On the 24th March, 1808, Robert Haslet, who married the daughter of Elizabeth McIlvaine, executed a deed by which he conveyed to the said Elizabeth the 25 acres in question in fee in consideration of £325 to be paid by her, with a covenant of general warranty; and on the same day she gave him her bond in the penalty of 2000 dollars with the following conditions, viz. that the said Elizabeth should pay to the said Haslet the sum of £325, on the day next following the date of the bond, and also, "that she should well and truly allow and permit the said Robert Haslet to sell and convey a certain piece of land containing 25 acres, for which the said above sum is the consideration, provided the said Robert shall think proto sell the residue of the said tract of land, and he the said Robert agreeing to allow the said Elizabeth the advance of price on the said piece of land, for which he may sell the land." The deed to E. M'Ilvaine was not recorded till the 1st October, 1810. The possession was not delivered to her but retained by Haslet, who on the 21st October, 1808, entered into articles of agreement with John Brotherton, one of the defendants, for the sale of per (Brindle and another v. M'Ilvaine.) the whole tract, containing about 178 acres, and including the 25 acres for the sum of 4,800 dollars in money, and 100 acres of other land to be conveyed by Haslet to Brotherton. The bond from E. McIlvaine to Haslet, was put into the possession of Brotherton, but at what time did not appear. On the 31st March, 1817, Haslet, executed a deed of conveyance to Brotherton, in pursuance of the articles of agreement, with a covenant of general warranty. The deed was in Haslet's own name and he took no notice of any power derived from E. M'Ilvaine. Brindle the other defendant claimed under Brotherton. The plaintiff having given in evidence a release from Mary Haslet, (daughter to E. MIlvaine, and wife of Robert Haslet desceased) to Alexander M'Ilvaine, of all her interest under the will of her mother, offered her as a witness, but the defendants objected to her competency on the ground of the general warranty contained in the deed from R. Haslet, and the said Mary his wife to E. M'Ilvaine. The court overruled the objection, and admitted her as a witness, and the defendants excepted. After some evidence given by Mary Haslet, the plaintiff asked her whether she had heard E. M'Ilvaine, say to R. Haslet, in reference to a settlement between them before the year 1817, any thing as to her having paid or overpaid the purchase money of the land, and if so, what was his reply to her. To this question the defendants objected, but the court overruled the objection, stating, that the offer was virtually to show, by the declarations of the obligor to the obligee, the payment of a bond: the right to receive payment included the right to give an acquittance: an acquitance might be by parol or in writing, and they therefore saw no objection to the evidence. The defendants excepted to this opinion. The defendants having given in evidence the record of an ejectment brought by E. M'Ilvaine against John Hostler, to August term, 1816, in the Court of Common Pleas of Franklin county, the plaintiff offered to prove by James Dunlop, Esq. that on that trial the plaintiff did not attend, and that the evidence given on the present trial, of Haslet's declaration as to the money due on the bond being paid, was not known to the plaintiff or produced. This evidence was also objected to by the defendants, admitted by the court, and excepted to by the defendants. The defendants offered to prove the general character of Mary Haslet, (a witness for the plaintiff) for drunkenness: but the court, on the objection of the plaintiff, rejected the evidence, and sealed another bill of exceptions. Brown and S. Riddle, for the plaintiffs. The opinion of the court was delivered by GIBSON, J. Between the case as now presented and the report of it on a former occasion in 7 Serg. & Rawle, 345, there is no dif |