7sr 116 39SC 7509 1821. Sunbury ILDINGS with a view to that object, and at the same time the jury should have been warned in pointed terms, that if the testator was of a sound mind, and free from duress, the will and another was to stand as it was written, without regard to the instrucIDDINGS. tious. My opinion is, that in the second bill of exceptions there is error, and therefore the judgment should be reversed and a new trial ordered, υ. Judgment reversed and a venire facias de novo awarded. Monday, If, in a civil cause, the PATTON's administrators against ASH and another who survived TY BOUT, administrators of CRAIG.* IN ERROR. ERROR to the Court of Common Pleas of Northumberland county. lenge be adopted under the Act of Assembly, it must be persevered in to the end; and if the plaintiff commence, and then wave his right, when the second challenge comes to him, he cannot resume it again. An administrator who is one of the plaintiffs in the suit may be examined as a witness for the plaintiffs, after he has executed a release to the heirs of his claims to commission and has paid to the prothonotary a sum sufficient to pay all costs which have accrued or may accrue, to be applied to such payment, let the verdict be as it may, unless it appear that he is in danger of being in volved in a devastavit. A naked check payable to one or bearer is not evidence per se of payment to the person whose name is inserted. It is necessary, in order to establish such payment, to prove that the payee received the money at the bank; and, in order to charge him as debtor, some evidence should be given to shew that the check was not given in payment of a debt due by the drawer. Finding a check cancelled among the drawer's papers is not evidence of such payment. After introductory evidence tending to shew that such payment was made as a loan to the payee, the back book of the drawer, it the entries are duly proved, and with it the check itself, are evidence by way of corroboration ; but a bank book is not evidence, without proving the entries by the clerk of the bank who made them, unless it appears to be out of the power of the party to do so. If it clearly appear that payments by the plaintiffs for the defendant were made on account of an unsettled partnership concern existing between them, they cannot be recovered in assumpsit; but, unless this clearly appear, the Court may receive evidence of them, and give them in charge to the jury, explaining the liability of the defendant. A copy of a letter proved to be a true copy of an original, put in the post-office, directed to the defendants' intestate, without notice to produce the original, is not evidence. The defendants' intestate wrote a letter to one of the plaintiffs' administrators, stating that he had received a copy of the plaintiffs' intestate's account against him, and also that he had made out from his own books his own account against him, but had lost them; and requested another copy of the account made out and sent to him; and as soon as he received his books, which he expected soon, he would have his own made out again; and concluded by saying, "I will write to you again some time hence, and inform you when I will again return to the city, to put a close to this affair in the best manner I can." Held, the jury ought to be directed that it was sufficient to authorise them to presume a new promise within six years, unless they were satisfie.. that it had no reference to the affairs on which the suit was founded. • For a former report of this case, see's Serg. & Rawle, 300. administrators v. ASH and another TY BOUT administrators This action was brought by James Ash and William Hall, 1821. surviving administrators of James Craig, deceased, against Sunbury. the administrators of John Patton, deceased. The declaration contained, besides the usual money counts, an indebitatus assumpsit and quantum valebant for goods sold and delivered, an insimul computassent, and also a count laying an who survived assumption by Patton in his life time, to the administrators of Craig themselves. The defendants pleaded non assump- of CRAIG. serunt, the act of limitations, and plene administraverunt, on all which issues were joined. On the trial of the cause in the Court below, the defendants took eight bills of exceptions to matters arising on the trial, and also an exception to the charge of the Court. The first exception was to the challenge of a juror claimed by the plaintiffs' counsel, and allowed by the Court, under the following circumstances. The jury being called, the plaintiffs peremptorily challenged Daniel Hoofman: and another juror being called, the defendants challenged Robert Campbell. Another juror being called, the plaintiffs waved a second challenge, whereupon the defendants challenged Abraham Campbell. Another juror being then called into the box, viz. John Buyers, the defendants requested the jury to be sworn. The plaintiffs claimed the right peremptorily to challenge the said Buyers. The defendants objected to the right, but the Court permitted it. The second exception was to the admission of James Ash, as a witness for the plaintiffs. He was one of the plaintiffs on record, but previous to his admission, he had executed a release to the heirs of James Craig, of all claims to compensation, by way of commission, and had paid to the prothonotary of the Court, a sum of money, admitted to be sufficient for the payment of all costs, accrued or which might accrue in this suit, to be applied to the payment of these costs, let the verdict be as it might; so that in any event, the whole costs were paid by the said Ash; and he had agreed, that in no event was any part of the money to be refunded. The third exception was abandoned in this Court, and therefore need not be specified. 1821. Sunbury. v. The fourth exception was to the admission of James Craig's bank book, containing his account with the bank of PATTON'S Pennsylvania, and a check drawn by James Craig, on the administrators bank of Pennsylvania, dated the 20th of May, 1795, for 1679 ASH dollars, payable to John Patton, or bearer. To explain this who survived exception, it will be necessary to take into view some of the TYBOUT evidence given before the bank book and check were offered. of CRAIG. It had been proved by the oath of James Ash, that at the and another administrators earnest solicitation of John Patton, and for his accommodation, a note had been drawn by the said Ash, payable to Patton for 2000 dollars, dated the 15th of May, 1795. This note was indorsed by Patton and Craig, and discounted by the bank of Pennsylvania. Patton received the money, but as Craig was the last indorser, and consequently the money was placed to his credit in the bank, it was necessary that he should draw a check, in order to enable Patton to receive the money. Ash proved also that he being liable to the bank, as drawer of the note for 2000 dollars, received full satisfaction from Craig, so that in fact Craig lent the money to Patton. It was then proved by Ash, that the book was the bank book of Craig, that the signature of Craig to the check, was his hand writing, that the check bore the mark of having been cancelled in the bank of Pennsylvania, and both book and check were found by him, after Craig's death, among his papers. Fifth exception. The plaintiffs offered an exemplification of the record of the Supreme Court, of a suit brought there to September Term, 1785, by James Seagrave, against John Redman, James Craig, John Patton, James Montgomery, and Philip Moore, in which judgment was entered on the 11th of December, 1797, for $4026, 874 cents, and offered to prove that Craig paid for Patton, his share of the judgment. This record and testimony were admitted by the Court, and the defendants excepted. Sixth exception. The plaintiffs offered to prove that Craig paid the whole of this judgment, and costs of suit: that two of the defendants in that suit, viz. Redman and Moore, were insolvent; and also to shew the proportion that each defendant ought to have paid, of which Patton's proportion was one-sixteenth. This evidence was also al- 1821. lowed by the Court, and an exception taken by the de- Sunbury. fendants. PATTON'S administrators V. ASH and another TYBOUT administrators Seventh exception. The plaintiffs offered evidence to prove, that a note for 350 pounds was given by Patton and who survived Craig, to a certain John Wright Hanley, as the witness presumed for the purchase of a brig, called the Sukey, pur- of CRAIG. chased by them, which vessel Ash and another became interested in, and was sent by the owners on a voyage, and that Craig had paid Patton's half of this note. This evidence the Court admitted, and an exception was taken by the de-. fendants. The eighth exception was to the admission in evidence of a number of letters from Patton to Craig, and to Ash, and of a copy of a letter from Ash to Patton, proved by Ash to be a true copy in his hand writing, of a letter directed to Patton, and put into the post-office. The last exception was to the charge of the Court, on the subject of the Act of Limitations. The transactions on which the plaintiff's claim was founded, took place more than six years before the commencement of the action. To take the case out of the act, the plaintiffs relied on several letters of Patton, but more particularly on one to James Ash, dated the 16th of November, 1802. And the opinion of the Court was expressly asked by the defendants on this point. The Court's answer was as follows. "To take the case out of the Statute of Limitations, there must be an acknowledgement of a subsisting debt, or a promise to pay within six years before the action was brought, and the acknowledgement and promise to pay must have a direct reference to the demand made by the plaintiffs, which fact the jury must determine from the evidence in this cause."-The letter was as follows: Dear Sir, Centre County, 16th Nov. 1802. My trunks containing my books and papers, were in a private room, at Dunwoody's open; some time before I left the city, I searched for Captain Craig's account 1821. Sunbury. and my own, that I had drawn out, but could not find them. My books are now at Harrisburg, I expect to receive them PATTON'S shortly, and as soon as their arrival here, shall have my acadministrators count made out again. In the mean time, I beg the favour ASH of you to have the other made out, and forward to me by who survived some safe hand. I am sorry to put you to this trouble, but TYBOUT it is unavoidable from the circumstance mentioned. administrators v. and another of CRAIG. I will write you again sometime hence, and inform you when I shall return to the city to put a close to this affair, in the best manner I can. James Ash, Esq. I am &c. John Patton. Carothers and Burnside, for the plaintiffs in error. 1. The Court ought not to have permitted the plaintiffs to make a second challenge, after waving the right of challenge when it came to his turn, as appears by the bill of exceptions. The Act of Assembly of the 4th April, 1809, provides, that in all civil suits each party shall be allowed to challenge two jurors peremptorily. Purd, Dig.347. The mode of conducting the challenges in criminal cases is pointed out by the Act of 29th March, 1813, and that Act furnishes a guide in civil cases. By that Act, Purd. Dig. 348, the Commonwealth and the defendant challenge alternately, and it specially enacts, that if the Commonwealth should refuse to make any challenge, the defendant's right to challenge is not taken away. So in the present case, when the plaintiffs refused to challenge a second juror, his right was gone, though the other party might exercise it. Each waver amounts to a relinquishment of one challenge. The plaintiffs wished to gain an advantage by refusing to challenge in their turn and insisting on challenging out of their turn. The Court of Common Pleas cannot establish a practice independent of the control of this Court. The practice on this point should be uniform throughout the State. 2. This point considering the opinion of the Court on the former writ of error, we shall not enlarge upon, although we desire the opinion of the Court upon it. Much injustice and perjury is produced by suffering witnesses to divest themselves of interest in the cause, at the bar. |