
    ADAMS VS. UHLER.
    In an action by a surviving partner against a debtor of the firm, the defence offered declarations of the plaintiff, that the claim sued on had been allotted, in a settlement, to the deceased partner, who was indebted to defendant; plaintiff denied making the declarations as alleged; held, error, not to admit evidence to show what was settled.
    An assignment of error to the rejection of testimony, which does not set forth the substance of the bill of exception, will not be considered.
    The judge may indicate his opinion on the facts, if he does not mislead the jury or give them binding instructions.
    Error to the Common Pleas of Northampton County, No. 53 July Term, 1884.
    This was an action of assumpsit, brought by Vm. E. Adams, who survived Peter Uhler, who were partners lately trading as Uhler & Adams against Sydenham L. Uhler, who was the son of Peter Uhler. Previous to going to trial the defendant filed a paper ; “that tbe books of tbe late firm of Uhler & Adams, containing the partnership accounts had been lost or mislaid, and that the account of the said firm on January 1,1876, standing in the books against Sydenham L. Uhler, the defendant, was $8,547.00.” The defence set up was that Peter Uhler and Adams had settled the partnership accounts, about April 1st, 1876, by which Adams got goods and a horse; and Peter Uhler got the accounts. Adams alleged that he got the goods at a valuation ; and that there had been no settlement of the partnership affairs. There was a verdict for defendant, and Adams then took a writ of error. During the trial, Peter Miller testified that Adams and Peter Uhler met together and valued the stock on hand at about $1,100.00, which Adams took and.charged himself with in the book; plaintiff then offered to prove “as a part of this conversation, that immediately after William P. Adams had charged himself in the day-book he asked Peter Uhler to settle the . balance of the accounts of the firm of Uhler & Adams and Peter Uhler’s private account, and that Peter Uhler replied that he had not time then and did not know when he would have time to settle — not for some months to come.” The defendant objected that the testimony is incompetent and irrelevant — being the declarations of the two partners in the absence of the defendant, and also because it does not contradict or tend to contradict any evidence or declarations submitted in evidence by the defendant, and the defendant’s evidence was as to the declarations of the present plaintiff and the plaintiff having made those declarations it is a question of -fact for the jury, and if he made them, he is estopped thereby, and he cannot prove they were not -true. The Court sustained the objection. (Pirst error).
    Adams offered to prove that the books were not in his possession. Objected to. Objection sustained. (Second error).
    The defendant offered “in evidence the report of the auditor upon the settlement of the estate of Peter Uhler, deceased, for the purpose of showing that Peter Uhler at the time of his death owed Sydenham L. Uhler $16,967 — an amount in excess of this claim for $8,547, and that this was paid by crediting the estate of Peter Uhler with that sum; and also for the purpose of showing that William P. Adams presented no claim before the auditor in the final settlement and confirmation of the account for the sum of $1,200, or for any other sum after repeatedly stating — if the jury should so find — after the death of Peter IThler, that the estate owed him $1,200, which is offered for the purpose of rebutting any theory that the declarations of William P. Adams that the estate owed him $1,200, could refer to any account except a settlement of the accounts of TJhler & Adams, and against Sydenham L. IThler and the adjustment of the partnership accounts between IThler & Adams.”
    By the Court: “I do not think that it is evidence.”
    “Defendant proposes to couple the above offer with proof of the notes of testimony taken before the auditor showing that William P. Adams, the plaintiff in this case was examined before the auditor as a witness to prove the claim of Sydenham L. IThler against the estate of Peter IThler and was therefore cognizant of the payment of this money by Sydenham L. IThler to his father’s estate in accordance with the settlement as made by the auditor.”
    “Objected to as res inter alios, and as incompetent and irrelevant.”
    By the Court: “The mere fact that he gave credit for this amount is not of itself, sufficient to discharge him; there must be evidence independent of that; we will admit the auditor’s report simply for the purpose of showing that that credit was allowed.”
    Plaintiff excepts. Bill sealed.
    The third assignment of error was: “The Court erred in admitting in evidence the report of the auditor in the • estate of Peter IThler, deceased.”
    The fourth assignment was: “The Court erred in not permitting the plaintiff to read in evidence the notes' of testimony taken by the auditor iu Peter Uhler’s estate, upon which the claim of Sydenham IThler was based, together with the remarks of the auditor as to the character of the claim.”
    The fifth assignment was : “The Court erred in deciding that Mrs. Hunt, a witness for the defendant, need not answer on eross- . examination, the following question of the plaintiff, viz : Can you tell whether it was March, or April, or May ?”
    
      'The charge of the Court was as follows, per
    Myers, P. J.
    Gentlemen oe the Jury : — This is an action brought by William P. Adams, as surviving partner, of the firm of Uhler & Adams, against Sydenham L. Uhler to recover for goods and merchandise sold by the firm of Uhler & Adams to the defendant. At the opening of the ease the defendant, in writing, admitted that on the first of January,. 1876, there was due and owing by the defendant to the firm of Uhler & Adams, on the books of the firm, the sum of $8,547. Upon that state of facts the plaintiff would be entitled to' a verdict for that amount together with interest unless defendant has established such facts and circumstances as will entitle him to a verdict. Prima facie the plaintiff would be entitled to recover the full amount of his claim with interest, unless the defendant shows, either that the defendant paid it or that some arrangement was made by the plaintiff with the defendant by virtue of which he is discharged from the payment of this indebtedness.
    The defense set up is that in March,. 1876, Peter Uhler and William F; Adams had a settlement of all partnership accounts between them, and that in that settlement it was agreed that William F. Adams should have the store goods and also a horse, and that Peter Uhler was to assume the indebtedness of the firm of Uhler & Adams and that in that settlement and arrangement Peter Uhler became indebted to William F. Adams in the sum of $1,200 for which Peter Uhler was to give him a note.
    These parties had been in partnership about five or six years at Uhlersville and Lucy furnace. Peter Uhler died on the twenty-second of January, 1877, and by his 'death the firm was dissolved, if it had not been dissolved before, as alleged by the defendant.
    The allegation of the defendant is, that the partnership affairs of the parties were settled in March, 1876, and that in that settlement was included the account of the firm against the defendant, and that that settlement resulted in a balance in favor of William F. Adams. It is not pretended upon the part of the defendant that a witness was present, and. was. here called to testify to that settlement. Nor.is that necessary in every instance, and, perhaps, not at any time, if the defendant can establish the fact otherwise to your satisfaction.
    In support of his theory the defendant called a number of witnesses. I do not propose to refer to the testimony of all these-witnesses in detail.' The defendant relies upon the declarations .made by William F. Adams in the early part of 1876, in regard to this settlement and also upon declaration made by William F. Adams that there was an indebtedness of $1,200 due him from Peter IThler. The witnesses who testify to any declaration made by William F. Adams, as to the fact that there had been a settlément of the partnership accounts, and that it resulted in a' balance of $1,200 in favor of William F. Adams are William F. Adams, Edward I. Hunt, and the defendant and Mrs. Hr. J. S. Hunt. You will recollect the testimony of those witnesses. Edward I. Hunt testifies that in the early part of 1876, Adams came to his store, and there stated to him that a settlement of ■this kind had been made, and that the store goods and the horse fell to him, and that the account of the firm with the defendant, had been adjusted, and that there was due by Peter Hhler to the plaintiff $1,200. That is, in substance, the testimony of Edward I. Hunt. The defendant testifies to declarations made by William F. Adams, at his father’s house at, or about the same time, and substantially to the same effect. The testimony' of Mrs. Hunt, does not go quite so far, because she is not able to state the amount that her father fell in debt at that settlement, but she, to-some extent corroborates the testimony of Edward I. Hunt and her brother. These same, especially Hr. Hunt, testify that. William F. Adams frequently came to tiie store of Mr. Hunt,, and Mr. Hunt testifies that Adams demanded payment from him,, as one of the executors, of this balance of $1,200 due him by the estate.
    There are a number of-witnesses, in addition to those I have referred to, and, you have also the testimony of a clerk in Mr. Hunt’s store, who testifies to a demand made in the same way, but, whether at the same time to which Edward I. Hunt testifies to, I do not now recollect. '
    Now, in addition to that, the defendant called a number of witnesses who testify that upon various occasions William F-Adams, in speaking of Ms affairs of Peter UHler, said that Peter Uhler owed him about $1,200. But these witnesses do not pretend to say, that Adams at that time, stated how, and in what way this $1,200 was due to him by Peter Uhler. , The witnesses upon that subject are Michael Uhler, who simply says that when Adams was down at the bank in reference to this note of $700, which was in the bank there, signed by Adams and indorsed by Peter Uhler, and that he there said, in a general way, that Peter Uhler was indebted to him, and in connection with that, said that Peter Uhler had to pay this note, as it was .an accommodation for Peter Uhler. He does not say, however, how much the indebtedness was, that Peter Uhler owed him, •only said in general terms that he owed him. Then you have the testimony of Jacob Lesh, as to declaration of like character, .and that of James Bougher and Susan Duckworth. I do not now recollect whether these witnesses all say what the amount was. You will have to recollect that yourselves. In addition to that, it is alleged by the defendant, that William P. Adams not only demanded from the executors the payment of $1,200, but, that he threatened to bring suit against them for the purpose of recovering it. It is further contended, that after having told "William P. Adams upon one occasion, that they were not bound to pay it, and that they had a certain time to' pay it, and at another time telling him that they had no money in their hands to pay it, and Adams and the defendant got into a dispute down at the store of E. I. Hunt, and that hot words ensued between them, and, as stated by the defendant upon the stand, they pretty near got to fighting, and, according to the testimony of Edward I. Hunt, he requested them, “to go out doors.”
    It is alleged by the defendant, that at that time William P. Adams changed his base, and, instead of making a formal claim against the executors as for a debt which Peter Uhler o~wed to him, that he should have said that he would make it hot for him, that he could make more money out of him, than he could out of the estate, that it was insolvent, or that it would not pay much on the dollar. It is also- alleged by the defendant that all along Adams only claimed $1,200 as being due him by Peter Uhler, and that, when he was there the last time he changed that amount to two thousand or twenty-one hundred dollars. In connection with that, there is evidence that Edward I. Hunt, who testifies to those facts, and the defendant, were witnesses, before this, upon a rule for the production of certain books, and also upon a former trial, and it is alleged by the defendant, that on these occasions the plaintiff changed his claim for $1,200, to sixteen or seventeen hundred dollars. You will recollect that, testimony, as it was read to you by the stenographer. This, in a. general way, is the testimony. In addition to that we have the testimony of Mrs. Hunt, who is the wife of Hr. Hunt,, who testifies that in March, 1876, she being then a member of her father’s-, family, with her husband, and that William E. Adams was at the house of Peter Hhler, in the office, for two or three days for the purpose of making a settlement, and, that at the dinner table,, when William E. Adams was taking* dinner there, she heard her father and William E. Adams talk about this settlement. She-says that this conversation was when her husband and Peter Miller was present. Now it is contended upon the part of the plaintiff that this is not true, and William E. Adams has gone upon the stand and declared upon oath thas he never made these-declarations, and that there never was a settlement between hi mi and Peter Hhler, as alleged by the defendant; and; that the circumstances referred to by Mrs. Hunt, as to his being there two* or three days, and that he took dinner there with her father, and made these declarations at the table, are not true, because he did not take dinner there, and that he was not there two or three days in March, 1876. Another witness was called, Peter Miller, who, it is alleged, was also present, and he’testifies that it is not so — that he was then at home during the month of March, at dinner, and that upon no occasion was William E. Adams there to dinner, when this conversation is alleged to have taken place. Dr. Hunt, a member of the family of Peter Hhler, testifies to the same effect. You will bear in mind, however, that there is. some testimony upon that branch of the case, from which you are to gather, as contended for by the defendant, that it was possible for Dr. Hunt and Peter Miller to have been absent, upon the days when this conversation is alleged to have taken place. You will recollect, that there is some testimony as to declaration about hauling wood, and, as to Dr. Hunt, who testifies as to his business relations to Peter Hhler. Mrs. Hunt testifies that Peter Miller did not take dinner there after February. But Dr. Hunt, when he came upon the stand again, after consulting his books, admitted that he did not keep the books and accounts of Peter Hhler up to the first of June, 1876. But he says that he remained at the house up to the 1st of June, and was there every day and took dinner there, and that he was in the office part of the time, and part oí the time in his room up stairs. In addition to that you have the testimony of William F. Adams himself, who says he was not there, and did not take dinner there, and that he was not in the house two or three days in the month of March.
    There is some testimony that lies on the outside of the direct testimony in this ease, which you will have to take into • consideration. In many cases there is sometimes evidence of a trifling character that has little or no bearing upon the main issue, but which may have an important bearing upon some question relevant to that issue.
    It is contended by Adams, that there was no such settlement as alleged by the defendant, and that he never made the declar- ■ tion as alleged by the defendant’s witnesses — Edward I. Hunt, Anna Hunt and the defendant. But he calls a witness, Peter Miller, who testifies that shortly before the 1st of April, he does not say exactly when, that he was there when a settlement, a kind of a settlement, between William F. Adams and Peter Hhler, and that at that settlement it was agreed that William F. Adams should take the store goods at G-lendon at that time for $1,100, and that he should also take a horse, valuation of $50, ultimately, and that this was then charged upon the firm books against "William F. Adams, and he testifies that that was all that was said at that time. You will bear in mind that about the 1st of April, or shortly afterwards, William F. Adams took these goods and the horse, and commenced business on his own account. In addition to that, you have also the testimony ol Williams, who testifies that several days before he had the auction, that he came" up to see William F. Adams, and that he was not* at his place of business, and that he was told that he was over in Easton at Peter Hhler’s house, and that he went over to Hiller’s and there saw Adams. I do not recollect that he testifies to anything that took place. It seems that Hhler was sick, and that he was told by the Defendant that he conld not see Peter TJhler — that he was sick.. You have then, from the testimony of Williams, that Adams was at the house at that time, whenever it was, at the house of Peter Dhler. In addition to that, you have the testimony of Dr. Hunt, who testifies that he was present when the books of the firm were brought to the house of Peter Hhler. These are circumstances, slight in their character, but they have some bearing upon the main question in this case. If Adams brought the books there on or about the first of March, was it, as alleged by the Defendants, for the purposes of the settlement of the firm accounts.
    You have also the testimony of Peter Miller, as I said before, that there had been a settlement with regard to the stock and this horse about a week before the first of April. There is no evidence that either Anna Hunt dr Edward Hunt, or the Defendant were present at that settlement, or that they received any information from any source, in respect thereto. If that is so, then these witnesses are corroborated to this extent, because all of them testify that the Defendant made declaration of the transfer of the stock of goods and the horse to William E. Adams, and, it is only a question now whether or not- Peter Miller may not have been mistaken as to the time when that arrangement was made, and whether it is not a circumstance together with the testimony of Dr. Hunt, that these books were brought there for settlement, prior to the first of March, 1876, whether these are not circumstances which you have a right to take into consideration-, as bearing apon the probable truth of the testimony of William E. Adams. That about covers this whole case. If I had the testimony of these witnesses written out, I would simply read it to you so as to refresh your recollection.
    The burden of proof in this case is cast upon the defendant, and after you have examined all the testimony and the probabilities and improbabilities of the testimony, and, before you can come to a verdict in favor of the Defendant, you would have to find by the weight and preponderance of the evidence, that he had established his proposition of fact upon which he relies for a verdict.
    
      .. It is admitted in this case substantially, that 'Peter Uhler was indebted to Sydenham Uhler; because William P. Adams, if you believe the testimony of these witnesses, declared that he knew that Sydenham Uhler had given large amounts to Peter Uhler — it appears from the Auditor’s report on the accounts of Peter Uhler, deceased, that Sydenham Uhler presented a claim for the sum of $28,000 to the Auditor, and that when that claim was presented he allowed a credit upon the account of $8,547 and interest, and, the Defendant alleges, that the Auditor allowed a dividend upon the balance. If then, gentlemen of the jury, the Defendant has satisfied you by the preponderating weight of the evidence in this case that there was such an adjustment of the accounts of the firm of Uhler & Adams in 1876, in which was included this partnership account of the firm against the defendant, Sydenham L. Uhler, and it resulted in a balance in favor of William F. Adams of $1,200 against Peter Uhler, and,-that you further find that under such circumstances the Defendant would be entitled to set off all his claim against the claim of the firm, and if it was allowed and done, then your, verdict would be for the Defendant. If, on the other hand, the Defendant fails to prove these facts by the weight, the preponderating weight of the evidence, on each side, then you will render a verdict in favor of the Plaintiff, for the amount of his claim, with interest up to .this time.
    I can make but one allusion to the testimony of Adams and that of Uhler. They ar.e both parties to this suit. Prior to 1869 they could not have been witnesses for themselves^ The act of 1869 makes them legal and competent and their credibility is for you. You will have to say how far you believe them. You have a right to take into consideration the fact that they are interested in the result of this verdict. But you have no right, simply because they are interested to reject their testimony, and say that you will not believe them. You must take their testimony as they have delivered it, and their manner upon the stand, and their opportunity of knowledge upon the subject, and how far they are corroborated. Mrs. Anna Hunt, the wife of Dr. Hunt, is the sister of the defendant. You will recollect her manner upon the stand. She has no direct interest in this case. but sbe is a sister of tbe defendant and you have a right to take that into consideration, and to consider whether she would not-be influenced by feelings of affection, and whether or not that, might bias her testimony in favor of him, and to say how far they believe her. Ur. Hunt is a brother-in-law. He is a relative also of Mr. Adams. Peter Miller is a witness and he lived in the family of Peter Uhler for several years — came into the family when he was eight years of age, and lived there until Peter Uhler died, and was considered a member of the family. Most of the important testimony in this case is given by persons who stand in that sort of relationship to either the plaintiff or the defendant. All these circumstances you must take into considei'ation. You have also a right to take into consideration the probabilities as to the truth of the statements of the witnesses for the defendant. We have here a partnership transaction between Uhler & Adams and the defendant. We do not know how much it. amounted to. It is alleged by the defendant that it was adjusted between them in the way detailed. There is no writing, nor any figures showing that such a settlement was made. It is urged that this is a circumstance of improbability that Peter Uhler should have made a settlement of partnership affairs without reducing it to writing, or leaving some memorandum bearing upon the subject. Of course that improbability is somewhat taken away by the fact that Adams was a nephew of Peter Uhler, and from the fact that this claim of $8,547 was allowed to stand for such a length of time. These are circumstances which you have a right to take into consideration, but, after all, they simply bear, either directly or indirectly upon the question of probability. Anna Hunt, the defendant, and Edward I. Hunt speak directly and explicitly with regard to the declarations of Adams, if you believe them, and that their testimony has not been shaken by the testimony on the part of the plaintiff, or by any other extraneous circumstance in this case — it is for you, gentlemen of the jury, to say who you will believe, and how far you will believe them.
    Without multiplying words, we leave this case to you. If the defendant has made out his case by the weight and preponderance of the evidence, you will render a verdict in his favor. If he has failed to do that, then you will render a verdict for the-plaintiff. (Mr. Fox now asks the Court to instruct the jury as to-the testimony of E. I. Hunt upon being rc-called.)
    
      By the Court. — -Mrs. Hunt, as I said before, testified that her-husband and Peter Hhler were present on that occasion, and that-they were at dinner, during the month of March, and that upon no occasion was Adams present at dinner, and that no conversation as that alleged upon the part of the plaintiff took place.. We have also said to you that Peter Miller testified that he was-present at a settlement or arrangement between Adams andHhler, and that the only thing that was done, according to hi® testimony, was the transfer of the stock at.G-lendon and the horse-to William F. Adams, and that there was no further settlement, at that time. Adams testified that he had no settlement at all,, as claimed by the defendant with Peter Hhler. In addition to that, it appears that there was a note in the Frenchtown bank for $700, signed by William F. Adams and endorsed by Peter Hhler, and Edward I. Hunt testifies that in 1877 there was something said about it — I do not recollect exactly how that is any more, and I shall not undertake to say how that was but will leave it to your recollection.
    My attention has also been called to the fact, and to the testimony which was read to you yesterday by the stenographer— that upon one occasion, I do not recollect now when, but that William F. Adams should have testified that he made a demand for this note upon Peter Hhler himself. Of course the notes of the stenographer, for certain purposes, are conclusive, but he is liable to make mistakes the same as anybody else. We refer that question to you for you to say whether in point of fact. William F. Adams testified so in this case.
    The sixth assignment was : “The Court in their charge misled the jury by misquoting the testimony of the witnesses and by presenting to the jury a partial and inaccurate statement of' the testimony.” The other assignments were as to alleged misquotations of the testimony, by the judge in his charge.
    
      E. J. & Fox Son, Esqs., for-plaintiff in error,
    argued that the-plaintiff should have been permitted to prove that there had not been a settlement as alleged; Rinesmith vs. People’s Freight Railway Co., 90 Pa. 262. The Court will reverse when the charge of the Court below has a tendency to mislead the jury ; Bailey vs. Fairplay, 6 Bin. 456; Harrisburg Bank vs. Forster, 8 W. 304; Pennsylvania R. R. Co. vs. Berry, 68 Pa. 272; Pennsylvania Mutual Ins. Co. vs. Snyder, 3 W. N. C. 269. The •defendant could not relieve himself from the debt he owed the firm, by giving credit to his father’s estate for the amount before the auditor; Grim’s Appeal, 15 W. N. C. 273. A debtor cannot shift his liability, and get clear himself without the consent of his creditor; Tibbitts vs. George, 5 Ad. & E. 115; Cuxon vs. Chadley, 3 B. & C., 591; Wharton vs. Walker, 4 B. & C. 163; Butterfield vs. Hartshorn, 7 N. H. 345; Shoemaker vs. King, 40 Pa. 110.
    
      B. F. Fackenthall and H. W. Scott, Fsqs., for defendant in error,
    argued that the first six assignments of error are not in form as required by Rule XXIY. of Supreme Court; Yeager vs. Fuss, 9 W. N. C. 557 ; Dietrich vs. Addams, 9 W. N. C. 492 ; Daniel vs. Daniel, 23 Pa. 198. The Court did not mislead the jury ; Hamet vs. Dundass, 4 Pa. 178; McDowell vs. Oyer, 21 Pa. 422; Bitner vs. Bitner, 65 Pa. 347; Reese vs. Reese, 90 Pa. 89; Leibig vs. Steiner, 94 Pa. 466; Johnston vs. Comth., 85 Pa. 54.
   The Supreme Court reversed the judgment of the Common Pleas, on April 13th, 1884, in the following opinion, per

Trunkey, J.

The testimony of the parties is conflicting. That of the defendant if believed, defeats the plaintiff’s claim. It shows that Adams and Peter Hhler settled their partnership business between themselves, in March, 1876, Adams taking the goods and horse, and said Peter to give his note for $1,200, and said Peter taking the account against the defendant ; and that within a few weeks thei’eafter in px-esence of said Peter, Adams told the defendant of the settlement and that his father had the account. All this was flatly denied by the plaintiff. And Peter Miller testified 'that just a week before the first of April, 1876, he was presexxt when Adams and Peter Hhler agreed that Adams should take the goods and horse at eei’tain prices, which were then entered in the day book, and that nothing further was settled that day. Just there the witness was stopped by the Court. The plaintiff proposed to prove that immediately after said entry was made in the day book, he asked Peter Uhler to settle the balance of the accounts of the firm of Uhler & Adams, and Peter Uhler’s private account, and said Peter replied that he had not time then, and did not know when he would have time, — not for some months to come. That was clearly admissible. If no such settlement was made as the defendant alleged, proof of the fact would have corroborated the plaintiff’s denial. The defendant adduced no witness who was present at the settlement. Miller was the only witness who heard any settlement, and the proposition was to prove by him what was settled and left unsettled, in the latter part of the month in which the defendant alleges the account became vested in his father. True “the defendant’s evidence was as to declarations of the present plaintiff; whether the plaintiff made those declarations was a question for the jury,” but the offered testimony was pertinent for their consideration in determining the disputed fact whether the plaintiff made the declarations. They would consider the probabilities of his declaring what they might find as untrue. At that stage in the trial, it was not for the Court to assume, that he made the alleged declarations and exclude evidence on the ground that he was estopped thereby. The first assignment of error, must be sustained. Therein is quoted the full substance of the bill of exception, and that complies with the rule of Court.

The defendant admitted that the books of the late firm of Uhler & Adams were lost or mislaid, and Adams was permitted to testify that the books were not in his possession, and that he had never been able to get them. This was sufficient to account, for their non-production by him. No offer was made to prove they were in the defendant’s possession, and the second assignment is not well taken. Nor is there error in the ruling set out in the fifth assignment. In her cross-examination the witness had already said, she did not know whether the matter occurred in March, April or May, and after numerous questions by counsel as to the month, answered to the Court that she would not swear positively as to the time. The Court had allowed sufficient cross-examination on that point.

The third and fourth assignments are not in accord with the rule. As the case is to be tried again, it need not be inferred that the fourth would be sustained, even if the bill of exception were fully quoted, the notes of testimony taken before the auditor printed, and the auditor’s report in evidence. But the inquiry may be suggested in regard to the subject of the third; If the plaintiff had a right of action at the time, he began' the •suit, how could he be prejudiced by the subsequent, act of the defendant before the auditor ? After the defendant was sued how could he make evidence for himself by givingcredit for the debt In suit, on his account presented before an auditor to distribute the money of an estate in the Orphans’ Court.

We are not convinced that the charge as a whole should be treated as misleading. Where the judge did ’ not control the verdict by binding or misleading instructions, if he clearly indi-cated his opinion on the facts it is not ground for reversal. It may be said that a charge misleads when it contains one or more «errors, yet where the charge in the main is fair and adequate, the cause may be reversed for error on specific points, not on the ground that the whole charge is misleading.

Judgment reversed and venire facias de novo awarded.  