(Reigart and another, terretenants, v. Ellmaker, President of the Orphans' Court of Dauphin County, for the use of Alricks, now for the use of Williams.)

out releases, and stating that there was some other property to make him safe. This evidence was objected to by the defendants, and admitted by the court, who sealed a bill of exceptions.

The plaintiff offered in evidence an assignment of his claim in this action to James Williams, dated 19th June, 1807. This was also objected to by the defendants, and admitted by the court, and an exception taken.

Fisher, for the plaintiffs in error, contended,

1st. That the letter was not evidence, because it was written after Kean had conveyed the property: and the declarations or acts of the vendor, after parting with the property, are not evidence to affect the purchaser. 5 Johns. 412, 426. Packer v. Gonzalus,

1 Serg. & Rawle, 536.

2. The assignment after the action brought, was inadmissible. It was an act of the party himself, and in no respect relevant to the merits of the cause. It may have had an improper effect on the jury, as it brought forward the claim of a party as assignee instead of the original party to the transaction.

Elder, contra.

1. Before the letter was offered, the defendants had given evidence of sundry matters, from which they inferred that Alricks had received full payment of his wife's share. They proved that Alricks had disclaimed taking any share of the money raised by the sale of the Dauphin farm, and we had shown a release. The evidence was offered to explain the cause of this release. It was all part of one transaction.

2. The evidence on the other point went only to show who was the real plaintiff. The jury were sworn in a suit entitled for the use of Williams.

The opinion of the court was delivered by

DUNCAN, J., after stating the facts. The objection is, that as this title was subsequent to the conveyance from Kean to Orth, no acts or declarations of Kean could affect a purchaser. It is to be observed, that Orth bought with full notice of this recognizance. The title to Kean could only be deduced through these proceedings in the Orphans' Court.

The decision of this court, when the cause was brought up on a former occasion, that no declaration of Kean, subsequent to his conveyance, could be given in evidence to affect a purchaser, has no relation to the question now raised. For one of the grounds of defence is, the disclaimer on record of Alricks to any thing out of the Dauphin farm: and evidence of this was given by the plaintiffs in error, to raise a presumption that Alricks had been paid all his claims on all the estate of John Hamilton taken by Kean. With no other view could this evidence have been given. Now, it would be most unjust, to preclude Alricks or his assignee from explaining

(Reigart and another, teretenants, v. Ellmaker, President of the Orphans' Court of Dauphin County, for the use of Alricks, now for the use of Williams.)

this transaction, from showing why this release had been given, and why he disclaimed of record, and that so far from his receiving his wife's share out of the whole estate of her father taken by Kean, he had not even received her portion of this tract, but relied on Kean's declaration, that there was other property sufficient to pay him. This would fully account for the entry on the record, and show that it was quite consistent with his retaining his lien on the house. The plaintiffs in error gave evidence of a transaction subsequent to the conveyance to Orth, between Kean and Alricks. To deny to Alricks all means of rebutting the presumption of payment from this circumstance, by evidence of the whole transaction, its origin, the leaving notice, and the consideration, would have been a perversion of justice, and every rule of evidence. It would be suffering one party to select one link in the chain of a transaction, while it was denied to the other to produce the whole chain, to show what the transaction really was. It was evidence direct, to do away all indirect inference which a partial statement might have raised, and which a full disclosure would dissipate. The assignment to Williams was proper evidence. It was referred to in the record of the action; a paper in the cause. The jury was sworn in a cause in which Williams had been substituted as the real party in interest, and the assignment became a part of his title. If it was attempted to be used for any other purpose, to give to Williams an additional equity, by means of this assignment, superior to what Alricks had, at the time of the assignment, the court should have been called on to instruct the jury, that Williams stood in the shoes of Alricks. The abuse of evidence, after it has been read, can be no objection to its admission. If it was evidence for any thing it was properly admitted. And though afterwards, an attempt might be made, in argument, to use it to prove that for which it was not competent evidence, this could not, by relation, affect the exception, nor by matter ex post facto, vitiate that which was properly received, though improperly used. It was not very important evidence, but it was not impertinent. The evidence was properly received in both instances. The letter being important to the defendant in error, rendered necessary by the introduction of evidence relative to a transaction between Kean and Alricks, subsequent to the grant by Kean, which by garbling the circumstances, giving evidence of what was done, thus raise the presumption, that from the act so done, another act might reasonably be inferred, which a full disclosure would remove. The assignment, though not necessary to be given in evidence, to support the claim of Williams as the substitute of Alricks, yet was not so totally irrelevant, as to justify its rejection, referred to, as it was, in the record, and sworn as the jury were, in the cause. Judgment affirmed.

[LANCASTER, JUNE 2, 1823.]

MILLER against UMBEHOWER.

IN ERROR.

In an action of assault and battery, if the plaintiff die after an appeal by the defendant from an award of arbitrators in favour of the plaintiff, his representatives cannot be substituted, and the award is at an end.

In the Court of Common Pleas of Berks county, to which this writ of error issued, the case was this:

Samuel Umbehower, the plaintiff below, brought an action of assault and battery in that court, against Jacob Miller, the defendant below. The action was referred to arbitrators under the act regulating arbitrations, passed the 20th March, 1810. An award was made in favour of the plaintiff for forty-five dollars, and filed in the office of the prothonotary. The defendant appealed to the Court Common Pleas. The plaintiff died pending the appeal, wheupon the court permitted Philip Umbehower, administrator of the said Samuel, to be entered on the record as plaintiff, after which the cause was tried, a verdict found for the plaintiff for thirty dollars damages, and judgment entered on the verdict.

It was now assigned for error, that the court permitted the administrator to be substituted.

Baird, for the plaintiff in error, contended, that by the death of the plaintiff the action abated; for although the act of the 20th March, 1810, sect. 10, declares, that the report of the arbitrators shall have the effect of a judgment, until such judgment be reversed on an appeal, yet the legislature never intended to alter the nature of actions of tort, which by the common law do not survive to the representatives of a deceased person. The effect of an award is done away by the appeal; it cannot be read in evidence to the jury. 6 Binn. 430.

Wright, contra, admitted that at common law the action abated; but insisted that the spirit of the act of the 20th of March, 1810, was to prevent the abatement. When it declared that the report of the arbitrator should have the effect of a judgment until reversed, it thereby virtually authorized the substitution of the party's representatives, when death took place pending the appeal. Either the action must not abate, or the report of the arbitrators must stand absolute; which would be a hardship on the defendant.

The opinion of the court was delivered by

TILGHMAN, C. J. At common law the action abated by the death of either party. By the act of 13th of April, 1791, sect. 8, (3 Sm. L. 28,) in case of the death of either party before final judgment, the action does not abate, "if the cause of action does by law survive." But this does not help the plaintiff, because the cause

(Miller v. Umbehower.)

of action in this case does not by law survive. The counsel for the plaintiff rely on the act regulating arbitrations, by the tenth section of which, the award of the arbitrators has the effect of a judgment against the defendant, and is a lien on his real estate until such judgment be reversed on an appeal. But as the right of appeal is given to the defendant, and has been exercised in the present case, the action was to be conducted in the Court of Common Pleas, in the same manner as if it had been originally commenced there. Thus, when the plaintiff died, there was no law by which the abatement could be prevented, by a substitution of the administrator in his place. There is no provision for that purpose in the act regulating arbitrations. It is a casus omissus. But what then becomes of the award of the arbitrators? It has not been reversed. Is it to be considered as a subsisting judgment? I think not. There has been no default in either plaintiff or defendant. The action abated by the act of God. The defendant therefore must not suffer by it. He did all in his power to prosecute his appeal. The death of the plaintiff he could not prevent. When the law gave him an appeal, and made no provision to prevent an abatement in case of death, it gave him the chance of being discharged from the action by the death of the plaintiff. He was forced to the arbitration by the positive command of the act of assembly. But the same act secured to him a trial by jury, if he chose to ask for it. He did choose it, and for that purpose entered his appeal. It never could be the intent of the law then, that the award should be conclusive, when the defendant had used all lawful means for prosecuting the appeal, and was prevented by the death of the plaintiff. To have made it conclusive, would have been to deprive the plaintiff of his trial by jury, which in the opinion of the legislature could not have been done consistently with the constitution of the commonwealth. The loss must fall upon one of the parties, and I am of opinion it is the defendant who must bear it. The judgment of the court of Common Pleas is to be reversed.

Judgment reversed.

GEDDIS and another, surviving Obligees, against HAWK, surviving Executor of HAWK.

IN ERROR.

An obligee called on by the surety of the obligor to sue the principal, loses his resort against the principal by neglect; but evidence is not admissible of a call of that kind made on the administrators of the obligee by the guardian of one of his heirs.

An obligation by two, binding themselves and each of their heirs, executors, and administrators, is joint and several.

No advantage can be taken by the executors of one obligor of being sued alone on a joint obligation, without pleading in abatement: unless it appear on the record that the other obligor is alive, or survived the defendant's testator.

ERROR to the Court of Common Pleas of Lancaster county. THE plaintiffs, Robert Geddis and Samuel Kerper, as surviving obligees with John Wolfersberger, deceased, brought this action of debt against the defendant, Jonas Hawk, surviving executor of Michael Hawk, deceased, who was jointly and severally bound with Adam Hawk, to recover the amount due on two bonds, dated the 3d of April, 1810, conditioned for the payment 420 pounds, one shilling, and four pence each, with interest. The plaintiffs filed a statement, and the defendant pleaded payment with leave to add, alter, and amend, and to give the special matters in evidence. Replication, non solvit and issue. The defendant gave notice of the special matter under the plea.

The bonds were drawn in the following form:

Know all men by these presents, that we, Adam Hawk and Michael Hawk, both of Heidleberg township, Dauphin county and state of Pennsylvania, are held and firmly bound unto Robert Geddis, Samuel Kerper, and John Wolfersberger, administrators of the estate of John Kerper, deceased, of Londonderry township, county and state aforesaid, in the sum of 940 pounds, two shillings, and eight pence, to be paid to the said R. G., S. K., and J. W., or to their certain attorney, &c. To which payments well and truly to be made and done, we bind ourselves, and each of our heirs, executors, and administrators, firmly, &c. The condition, &c. is, that the above bounden A. H. or M. H., their, or either of their heirs, &c., or any of them shall pay, &c. (In the usual form.) It appeared in evidence, that these bonds were given for the purchase money of land conveyed by the administrator of John Kerper, deceased, to A. Hawk, under an order of the Orphans' Court: and that on the 3d of April, 1817, A. Hawk conveyed the land to Peter Witmer, who was the owner of it at the time of trial. Witmer had retained near 4000 dollars of the purchase money, in consequence of notice from R. Geddis that he would look to the land for payment of the two bonds now in suit. A suit had been brought on these two bonds by the administrators of J. Kerper against A. Hawk, and judgment obtained on the 26th March,

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