
    Richter against Selin.
    M.&g. were indebted toC.&N.and also to D. who, held two promissory notes drawn by C. & N, On the 10th August, 1816, C. & N. made an assignment for the benefit of their creditors. On the 27th of the same month, D. made a similar assignment. On the 5th August, 1816,1). wrote from Philadelphia to M. & G. in Selin’s Grove, informing them of the desperate state of C. & N’s circumstances, that they would make an assignment in a few days, arid informed them that he held the two notes above mentioned, which he proposed to endorse to M. & G. to enable them to set them off against the debt they owed to C. & N. M. & G. received these notes, and gave to D. their note endorsed by S. for their amount, together with the amount of the debt they owed to Í). This note was dated 7th August, 1816, but there was some evidence to shew that it was not drawn until 1st January, 1817. An action was afterwards brought on this note, for the use of the assignees of D. against S. the indorser; and it was Ae/d,thaf the two notes drawn by Cf & N in favour of D, which had been transferred to S. after the commencement of the action, might be given in evidence by the defendant, not as a set-off, but for the purpose of shewing that the transaction was a contrivance to defraud the assignees of C. & N.
    A note may, for honest purposes, be dated as of a day antecedent to that on which it was really made.
    Where a suit has been marked to the use of another, notice to the plaintiff on the record, of the time and place of taking a deposition, is sufficient, where he has always appeared in the suit, either as party or agent.
    Where an action, brought in the name of one, is afterwards marked to the use of another, before the plaintiff on the record can give evidence, he should release all iwterest in the action, and the costs up to the time of marking it to the use of another, should at least be paid.
    In an action against the endorser of a promissory note, drawn by one partner in the name of the firm, the ledger of the firm is evidence to shew the existence of the partnership.
    A confession of judgment by the endorser of a promissory note, is evidence,hut not conclusive, of notice of demand on the drawer, and refusal by him to pay the note, or of waver of such notice ; but it may be explained and rebutted by the circuraslances under which the confession was made.
    A judgment binds lands, for the sale of which articles of agreement have been entered into before the judgment, but which have not been conveyed until afterwards. The rule that after purchased lands are not bound by a judgment, is to be strictly construed, and not extended beyond the letter.
    In Error,
    ON a writ of error to the Court of Common Pleas of . , Union county, the case was as follows:
    On the 28th May, 1817, a suit was commenced by Peter 
      Richter, the plaintiff in error, against Anthony C. Selin, the defendant in error, on a promissory note drawn by Marshall Goughler, dated August 7th, 1816, for 1688 dollars 58 cents, payable eight months after date to Anthony C. Selin or order, by whom it was endorsed in blank and delivered •to Nathan Dunn, who endorsed it specially to Peter Richter, the plaintiff. On the 16th of September, 1817, the defendant appeared and confessed judgment. The Court on the ■20th February, 1818, granted a rule to shew cause why the judgment should not be opened and the defendant let into a defence, and after argument the rule was made absolute. On the 31st January, 1820, the suit was marked to the use of Samuel G. Wright and William Newbold, assignees of Nathan Dunn.
    
    The evidence, so far as is now material, was as follows : — - Marshall Goughler, the makers of the note, who were merchants in Selin's Grove, purchased goods of Corlies £s? Na-glee, merchants in Philadelphia, to the amount of 1444 dollars 64 cents. They also purchased goods of Nathan Dunn to the amount of 367 dollars 58 cents. Corlies Ss? Naglee were' indebted to Nathan Dunn in two promissory notes, amounting together to the sum of 1321 dollars, and it was agreed by them, that Dunn should transfer these notes to Marshall &? Goughler, and that Corlies tí? Naglee should receive them in part payment of their demand against Alarshall Goughler. On the 5th August, 1816, Dunn wrote to Marshall £i? Goughler, informed them of the declining circumstances of Corlies Naglee, which would result in their making an assignment in a few days, and told them that he held these two notes, which he proposed to endorse to them, that they might set them off against the debt due by them to Corlies 8? Naglee, provided they would give him their note in lieu of them ; and for rendering this service he offered to give them one hundred dollars. In pursuance of this arrangement, Dunn transferred the two notes of Corlies Naglee to Marshall tí? Goughler, and took their note endorsed by the defendant, for the amount of those two notes, together with the amount of his account against Marshall fc? Goughler. This was the note on which the present suit was brought, Marshall ci? Goughler never presented the notes they had received from Dunn to Corlies <¿? Naglee, but after Marshall ei? Goughler had been sued and confessed judgment, and after Selin had confessed in this suit, they enclosed them in a letter, and sent them on to Selin. Marshall Goughler were insolvent.w Dunn made an assignment for the benefit of his creditors,on the 27th August, 1816, to Wright Sí Newbold. Corlies £i Naglee made an assignment for the benefit of their creditors, on the 10th August, 1816. In addition to the pleas of non assumpsit, and payment, the defendant pleaded specially,a set-off of the two notes given to Dunn by Corlies Si Naglee, and endorsed by him to Marshall £i Goughler. When these notes were offered in evidence, they were objected to by the plaintiff’s counsel, who offered to prove that they did not come to the hands of the defendant until after the commencement of the suit. The Court, however, overruled the objection, and the notes were given in evidence, upon which a bill of exceptions was tendered and sealed. The defendant then offered the deposition of Benjamin M. Hollingshead? after having proved that notice of the time and place of taking it, had been served on Peter Richter, the plaintiff on the record. An objection was made by the counsel for the plaintiff to the reading of this deposition, but the Court permitted it to be read, and sealed another bill of exceptions.
    It was proved by several witnesses, that Nathan Dunn was in Selin’s Grove about 1st January, 1817, when he was seen with Marshall and Goughler, but was not seen by the witnesses in that place, either before or since.
    A witness was produced by the plaintiff, who swore that Goughler and Selin came together to his house, and requested him to draw an assignment on a deed from the former to the latter, of a house and lot in Selin’s Grove, which he did. Se~ lin said that he had gone bail for Goughler, for 1200 or 1500 dollars, which he expected he should have to pay, and therefore he wished to make himself safe as well as he could. The assignment bore date 6th June, 1817.
    The defendant, for the purpose of shewing that the indemnity given by Goughler to Selin, to secure him in the event of his being obliged to pay the note in question, had failed, first read an article of agreement between Mathias Drum
      
      baugh and Marshall Goughler, for the sale of the same property, dated December 27th, 1816, and then proved that the property had been sold under a judgment entered against Marshall Goughler on the 24th January, 1817, and all the proceeds of the sale appropriated to the discharge of liens existing at the time of the sale to Selin; that Selin had never been in possession, and had received no part of the money arising from the sale.
    The plaintiff produced the ledger of Marshall Goughler, proved by Goughler, and offered it in evidence without stating for what purpose it was offered. But the Court, on an objection being made by the counsel for the defendant, rejected the evidence, and an exception was taken to their opinion.
    Mr. Lachells, after having sworn that since Dunn had left the United States, he had corresponded with Wright, one of Dunn’s assignees, and had received information and instructions from him in relation to this suit; that he did not inform Wright that he had made him a party7 to the suit, nor how it was brought; that he had corresponded with him on the subject for more than a year, and had considered him, since the commencement of the correspondence, as interested in the suit, offered Peter Richter, the plaintiff on the record, as a witness. An objection was made to his admission by the defendant’s counsel, which the Court maintained. An exception was taken to their opinion.
    The evidence being closed, the President of the Court delivered a charge to the jury, in the course of which he instructed them to the following effect: •“ The law is well settled, that before the endorser becomes liable for the payment of a note to an endorsee, it is necessary that payment should be demanded of the makers, when the note becomes due. Notice within a reasonable time to the endorser, of the demand upon the makers, and their refusal to pay, are the conditions upon which the endorser can be made liable for the payment of the note. The endorser, by placing his name upon the note, does not thereby7 engage to pay it at all events. His engagement is conditional. The time of notice depends upon the distance the drawers and endorser reside from each other. The demand upon the makers, and their neglect or refusal to pay, and notice of these facts to the endorser, are conditions pre- « 1 cedent, and must be performed before a right of action accrues to the endorsee. In this case there, is no proof that the makers of the note were ever called upon to pay it before the acti.on was commenced; from which it clearly appears that at the institution of the suit, the plaintiff had no cause of action against the defendant, and could not recover unless the defendant has subsequently made himself liable for the payment of the money. To this general rule there ■ are some exceptions. In case notice be not given within a reasonable time, the endorser may become liable by a promise to pay, which would be considered a waiver of notice, and a new agreement. But that the endorsee may maintain the action against the endorser, the promise should be made before the commencement of the suit. In this case, the defendant, though not liable for the payment of the money at the commencement of the action, confessed judgment at the return of the writ, by which act he made himself liable, if the jury should believe that he was acquainted with his situation and had a knowledge of his rights, that no imposition was practised to induce him to confess a judgment, and that the note was not fraudulently obtained ; but if he was unacquainted with his rights, or any imposition was practised upon him to induce him to confess the judgment, he would not be liable. These are facts for the jury, but in determining them, the jury may take into their consideration, the situation of the defendant who is not a merchant, and consider whether it is probable he would have been willing to confess judgment for a debt which he was not bound to pay, if acquainted with his situation. The Court have also stated, that if the defendant was induced to confess judgment by an imposition practised upon him, he would not be bound by it. As to the circumstances which led to this confession ©f judgment, there is but little evidence. One circumstance however does appear in evidence. On the day and at the 'time this judgment was confessed, Goughler assigned to the defendant, a deed for a house and lot in Selin’s Grove to indemnify him, as was alleged, which house and lot have since been sold for the payment of Marshall & Goughler’s debts, upon a judgment obtained before the assignment, which, under the circumstances, was clearly a lien on the property.
    “ It has been contended for the defendant, that the note was fraudulently obtained by Dunn, and could not, under the circumstances, be recovered against Marshall Es? Goughler,the makers. Fraud poisons all contracts. Whether or not the note was fraudulently obtained is . a fact for the jury to determine from the evidence. Fraud cannot be presumed ; it must be proved. The principal circumstance relied upon, is the time when, and the purpose for which, the two notes drawn by Corlies & Naglee were delivered to Marshall & Goughler. If they were bona fide delivered to them before the assignment of Corlies Es? Naglee, for the use of their creditors, and not with a view to that assignment, they would have been a proper set-off against the demand which Gorlies Es? Naglee had against Marshall Es? Goughler ; and the transaction would have been a fair one. But if the jury believe that Dunn, instead of delivering these notes to his assignees, retained them in his own possession and in January, 1817, delivered them to Marshall Es? Goughler, and obtained the note in question, with a design that these notes should be set off against the account which the assignees of Corlies Es? Naglee held-against Marshall Es? Goughler, and that he should appropriate their note to his own use, this being after the assignment of Corlies Es? Naglee for the use of their creditors, would be a fraud on the creditors, and the assignees, upon discovering, the circumstances, would never permit these notes to be brought in by Marshall Es? Goughler as a set-off against their account; and it appears, by the production of those notes in Court, that the assignees of Corlies Es? Naglee have not as yet received them. If those notes were transferred to Marshall Es? Goughler after the assignment of Corlies Es? Naglee, the assignees of Corlies Es? Naglee could maintain an action for the whole amount of their demand against Marshall Si Goughler, who would not be entitled to set off the notes against it. If therefore the plaintiff or the assignees of Dunn, could recover upon the note on which this suit is brought, Marshall Es? Goughler, or their endorser, would be compelled to pay the money twice : first to the assignees of Corlies Es? Naglee, and again to the assignees of Dunn. But whether these notes could be made a set-off or not,, would depend not-altogether on the time they were delivered to Marshall Es? Goughler. If the money was bona jide due from Corlies Es? Naglee to Dunn, he or his endorsees would be entitled to receive of the assignees of Corlies Es? Naglee, such a proportion to the dollar, as they were able to pay their creditors. Cor lies fva his deposition, states, that it .was understood they were to receive the two notes given them by Dunn, from Marshall Es? Goughler, in part payment of their debt. Corlies Es? Naglee could make no such agreement after their assignment ; but if made before, it would be good, provided the notes were delivered to Marshall Es? Goughler before the assignment. The assignees of Corlies <§• Naglee would be liable to pay the assignees of Dunn those notes or their proportion of them, at any time before the expiration of six years, within which, by an Act of Assembly called the Act of Limitations, actions on promissory notes or book accounts must be commenced.”
    To the whole of the charge of the Court, the counsel for the plaintiff excepted, and also to the answers given by the Court, to the following points, on which their opinion was requested :
    1st Point. “ The defendant having confessed judgment for the amount of the note on which this suit is brought, a previous demand upon the drawers and notice to the endorser, need not be proved, but will be presumed. And even if he confessed judgment under a mistake as to his liability, on account of a want of consideration, that will not destroy the legal presumption of his having had due ' notice of the non-payment by the drawers.”
    
      Anszuer. “A confession of judgment by the defendant, with full knowledge of his rights and situation, would be a waiver of his right of a previous demand on the makers of the note. But if the confession of judgment was obtained from him when ignorant of his rights and by imposition, it would not be a waiver of his right to notice of a demand upon and non-payment by the drawers.”
    2d Point. “ If the two notes given by Corlies §* Naglee to Nathan Dunn were received by Marshall 8$ Goughler before 
      
      Cor lies Sf Naglee made an assignment, Marshall Sf Goughler were entitled to set them off against the debt due from them to Corlies Naglee; and if Marshall <|* Goughler received them before they had notice of the assignment, they were entitled to set them off.
    
      Answer. “ If the jury believe that Marshall <$* Goughler received these notes before the assignment, they could set them off against the account which the assignees of Corlies Naglee had against them, unless they received them zvith a view to that assignment. But if they received them after that assignment, and after they had notice of it, with a fraudulent intention, they could not set them off.”
    3d Point. The answer to this point being favourable to the plaintiff, it is unnecessary to state it.
    4th Point. “ If the jury believe that Marshall fy Goughler purchased the two notes of Corlies Naglee from Nathan Dunn at a discount, with full notice of their anticipated insolvency, they could not set up want of consideration as a defence ; they having taken the notes at their own risk; particularly if at that time Marshall & Goughler were indebted to Corlies Naglee to an equal or larger amount than the notes.”
    
      Answer. “ If Marshall <§• Goughler took the notes of Cor-lies <$• Naglee at their own risk, and could make no defence against them, the defendant could make no defence. But if they received them to make a set-off, and not at their own risk, not being able by law to make a set-off, there would be a failure of the consideration of this note to the amount of the loss on Corlies <Sf Naglee's notes.”
    5th Point. “ If there was a good consideration for part of the note on which this suit is brought, the plaintiff is entitled to recover for such part.”
    
      Answer. “ The plaintiff would be entitled to recover the balance, after deducting the amount of the notes of Corlies Naglee, provided the defendant has, by his acts, dispensed with a demand upon the makers of the note, and provided the whole transaction was not fraudulent, with a view to defraud the creditors of Corlies <ff Naglee.”
    
      . 6th Point. w If the notes of Corlies fy Naglee came to the hands of the defendant after the commencement of this suit, he cannpt give them in evidence under thp plea, of set-off.”
    
      Answer. “ He could not; and they have not been so offered by the defendant.”
    7th Point. “ There being no evidence that Corlies Na-glee or their assignees, were ever called upon for payment of these two notes, nor any evidence of notice having been given to Nathan Dunn, the endorser, of non-payment, the defendant cannot make them a set-off.”
    
      Answer. “ They have not been offered as a set-off, nor could they be so offered,”
    8th Point. “ If the assignees of Dunn have agreed to the transfer of the note on which this suit is brought, by Dunn to Richter, the transfer is valid, even if made after Dunn’s assignment for the use of his creditors.”
    
      Answer. “ The transfer would be valid, if authorised by Dunn’s assignees.”
    9th Point. “ If the jury should believe that the note on which this suit is brought, was not signed by the drawers and endorsed until January, 1817, yet if the drawers had received a good consideration therefor at the time it bears date, and the endorser knew the contents of the note, it is, a valid contract, and the note would take effect from the time it bears date.”
    
      Answer. “ It Would,, if a bona fide transaction and the defendant had dispensed with a demand upon the makers of the note. The antedating alone Would not destroy the note.”
    10th Point. “ If, at the time the defendant purchased the house and lot in Selin’s Grove, he had no notice of the articles of agreement made between Matthias Drumbaugh and William Goughler, he would hold the same discharged from the judgments entered against William Goughler, before the deed from Drumbaugh to Goughler was executed; there being, no execution issued on these judgments until after the de« fendant purchased.” .
    
      
      Answer. “ The Court are of opinion that the judgment against Marshall 8? Goughler was a lien upon the house and lot; and whether the defendant had notice of the articles of. agreement or not, they could be sold, and a good title made to the purchaser. The articles were part of the defendant’s title. Pie derived his title from Goughler and was bound to take notice of the articles.”
    In this Court seventeen errors were assignéd, in the admis»' sion and rejection of evidence, and in the opinions delivered by the Court of Common Pleas to the jury, upon the questions arising in the case.
    These errors were argued by Lachells, Blythe, and Merrill, for the plaintiff in error,
    who cited Browne v. Weir, 5 Serg. & Rawle, 403. Wilt v. Franklin, 1 Binn. 514. M'Allister v. Marshall, 6 Binn. 347. M'Menomy & Townsend v. Ferrers, 3 Johns. 71. Colhoun v. Snider, 6 Binn. 135; and by
    
      Greenough and Bellas, for the defendant in error;
    by whom Heylyn v. Adamson, 2 Burr. 676. 4 Bac. Abr. 730; Levy v. Gadsby, 3 Cranch. 180. 185. Donaldson v. Means, 4 Dall, 109, 110. 4 Bac. Ab. 727. Barrow v. Paxton, 5 Johns. 258. 8 Johns. 384, were referred to.
   The opinion of the Court was delivered by

Duncan j. —

There are four bills of exceptions taken by the plaintiff in error, who was plaintiff below, to the admission and rejection of evidence.

The first is, on the admission of the two notes of Corlies 8? Naglee to Nathan Dunn, endorsed by him to Marshall 8? Goughler, and by them delivered over to the defendant, after the commencement of this suit. To understand the nature of this objection, it is necessary to give a brief view of this complicated transaction.

Marshall 8? Goughler were indebted to Corlies 8? Naglee in the sum of 1444 dollars 44 cent;s, and to Nathan Dunn in 367 dollars 58 cents. Corlies 8? Naglee were indebted to Nathan Dunn the amount of their two notes, 1321 dollars 68 cents. Corlies 8? Naglee's house was falling early in August, 1816, and made an assignment to their creditors on iOth August, 181G. Dunn was likewise a falling man, and made an assignment on 27th August, 1816. On 5th August, •1816, Dunn from Philadelphia, wrote to Marshall Si G'-*agfiler at Selin's Grove, informing them of the desperate state of Corlies Si Naglee, that they would break up in a few days and assign, and stating that he held these notes, proposed to Marshall Si Goughler to endorse them to them, to enable them to set them oif against their debt to Corlies Naglee, if they would give him their note ; and for rendering him this service, he promises them one hundred dollars. The note for which this action is brought, was for the amount of these notes, and the balance due to Dunn by them. It purports to be a note of 7th August, 1816. This letter recommends secrecy and enjoins silence, and chalks out a deceptive line of conduct to be observed by them. When this letter reached Marshall Goughler we have no account, but it certainly would have required a special messenger and a very speedy one, to reach them on the 7th August. It would be impossible for Dunn to foreknow that Selin was to be the payee, and the note is in his hand-writing. There was other evidence given, from which the defendant contended, that the negotiation between Dunn and Marshall Si Goughler, could not have taken place until after the general assignment of Corlies Si Naglee, and not until January, 1817, and therefore the whole was a contrivance to defraud the assignees of Corlies Si Naglee and their general creditors, and that the note was antedated to overreach the assignment. If this was so, it would be a good defence to the endorser. The drawers, Marshall Si Goughler, could have availed themselves of it, and so could their endorser, whose engagement was not an original undertaking, hut a guarantee that Marshall Si Goughler should pay. That Marshall Si Goughler could, against Dunn and against Dunn’s general assigmes, for whose use the suit was entered, some time after its commencement, (for Richter, it is admitted, was only an agent, and the note endorsed to him for collection,) is very clear ; for though they may have entered into the concert to defraud the assignees of Corlies Si Naglee, yet it is competent to them to resist payment on the ground of this fraud ; for it is quite clear, that Marshall Si Goughler would be still liable to the assignees, even if they had paid the money, having notice of the assignment. I give no opinion whether the fraud was'proved or not; that was for the jury to decide. For though it was lawful for Dunn to secure his debt, by laying Hold of this plank, while the debt o{'Marshall & Goughler was Corlies Sí? Naglee’s, yet it would be fraudulent to accomplish it in the way in which this was alleged to have been done. For honest purposes, a note may be dated as of a day antecedent to that on which it was really given, and is good between the parties ; yet this cannot be done, where it is to be used as the instrument of fraud on the rights of others. The debt of Marshall £? Goughler, passed by the assignment, and when Marshall £i? Qoughler had notice of it, in equity, it would bind them, and they would become the debtors of the assignees. It would not be in their power to defeat the assignees, or change the distribution of the effects directed by the assignment. In this point of view, these notes were part of the res gesta, — the very pivot on which the whole scheme turned; and except for the balance due to Dunn himself, there would be no other consideration for the note endorsed by the defendant. They were not evidence by way of set-off, as Selin did not hold them until after the commencement of the action, but to shew what the consideration of this note was, — to shew that the plaintiff claimed through the medium of a fraud, for Dunn to every purpose is to be considered as the plaintiff; his assignees and himself are the same. The assignees took the action and thé note, subject to all their defects, — exposed to the same defence as if they had remained in Dunn’s hands. The note was not passed by a specific endorsement for a valuable consideration, without notice of fraud. The morality of the law will not suffer a man to recover by the medium of a dishonest act, — by the medium of an impure and falsified instrument. The law says to such a plaintiff, your hands are not clean, and we will- give you no assistance in our Courts. I avoid intimating any opinion whether the facts would be established by all the contending circumstances. That was to be submitted to the jury : but as these notes were a component part of the transaction, in that view they were competent and important evidence, and if the jury concluded the transaction to be fraudulent, and the note antedated to overreach the assignment, this would destroy the consideration, and go to the very root of this action, so far as respects the amount of these notes, but would, leave untouched the proper debt of Marshall Goughler, due to Dunn, on this head of defence ; but as a set-off they could not be read. Yet' from the notice of set-off, and some expressions of the Court in their charge, it is contended, they were given in evidence for that purpose ; but the ;answer of the Court to the seventh point of the plaintiff, explicitly dpdares that they could not be- given in evidence as a set-off, nor were they so offered. The second exception, yhich was to the admission of the deposition of Hollingshead, has not been supported. The rule of Court to take depositions, was made out in the name of .Richter alone ; he is constantly found, either as a party or agent; the first, writ'of error was taken on his affidavit, and he is in this the bail in error. Notice to the agent of taking depositions, has been always considered good notice ; and this is still stronger than the case of a bare agent; for he is the legal plaintiff, and until the suit was marked for the use of Dunn's assignees, he was liable for costs, and had an interest in the suit.-

This disposes of the third exception. And moreover, as the note was endorsed by Dunn ,to Richter, and the action brought in his name, he should have released all interest in the action to have rendered him competent. His saying or even swearing, he had no interest, would not make him competent; and I do not know, that the bare marking an action for another’s use, would discharge -the legal plaintiff from costs. As to Dunn himself, he was insolvent ; and it no where appears that the action was marked for the use of his assignees by any authority from them; But at least the costs up to the time of putting their names oh the record, should have been paid, before Richter was admitted to testify. 1 , ,

The fourth exception, -the plaintiff in error has sustained. The book, whether day book or leger, was evidence,, nqt as a matter of original entry or charging any one with a debt, but as proof of a collateral fact, the partnership of Marshall Goughler. Every thing was put in issue on the plea of non assumpsit. The making of the note was the first thing to be proved. The whole signature was in the hand writing of Marshall. The book, being the common book of Marshall Goughler, containing the partnership transactions, wasevidence of a partnership, and proved the authority of Mar, shall to give the note in his name and GoughlePs. It might have been, and it was, redundant, but not irrelevant evidence. There was error in rejecting it.

There were a great number of special exceptions assigned to the charge of the Court; but there is little variety in them. It is unnecessary, and would be useless to consider them one by one. I will therefore content myself with considering them in one connected view. The demand on the maker and notice to the drawer are generally indispensable. They however may be waived by acts of the'endorser; and his promise to pay, with knowledge of the facts, would bind him. His ignorance of the law would not render the promise- void. For if, with knowledge of the fact of demand not having been made, he makes a promise, under the supposition that he will be still liable at law, it will be valid. Stevens v. Lynch, 12 East. 38. Bilbie v. Lumley, 2 East. 469. But the promise ought to be clear, and made out by unequivocal testimony. One, on being sued, says, that he does not know of any defence. This is no promise, or waiver of his legal objection. Griffin v. Goff, 12 Johns. 423. And if an endorser, under ignorance of the facts, pay the amount of a bill or note, he may recover it back in an action for money had and received. Chatfield v. Paxton Co., Chitty on Bills, 305, (note c.) Garland v. Salem Bank, 9 Mass. 408. It may be a question, whether the plaintiff who proves the promise, must shew, as part of his case, that the promise was- made by the defendant with knowledge that the legal requisitions had not been complied with, or whether it lies with the defendant to rebut the presumption arising from the promise. In Trimble v. Thorne 16 Johns. 152, it was decided, that the defendant’s knowledge could notbe intended from the mere fact of the subsequent promise; though the tenor of the modern English authorities is, that the endorser’s promise to pay is evidence of the averment in the declaration of demand and notice. The cases on this head are referred to in a note to the American edition of 2 Phillips, 38. The confession of judgment is not so strong as the recovering back of the money. -It may be evidence of an acknowledgment of liability, but is not conclusive evidence. It is not a legal presumption. It is capable of being explained and repelled by the circumstances under which it was given. It was a circumstance to shew either demand and notice or a waiver of them. But if the defendant confessed the judgment by any false suggestion of the drawers,' and on the faith of a valid security to indemnify him, which security was found to be immediately worthless, if the jury believed it a contrivance between Marshall c2J Goughler and Dunn, in the first instance, to defraud the assignees of Corlies Sí? Na-glee, and this, part of a system to carry the plan into effect, by hooking in and fixing the defendant, and particularly, if at the time of endorsement, Marshall Goughler were insolvent, all this would be evidence to repel the presumption arising from the judgment and indemnity. The taking of the indemnity, being after action brought, if taken under the impression of a regular'demand and notice, and the endorser believed himself to be liable, would not be a waiver. 9 Mass. 332. And in this case, as the defendant received no benefit from the transaction, and as in law he would not' be bound without demand and notice, there is nothing unconscientious in this defence. He does not take advantage of a formal objection to commit a fraud, but to prevent a fraud being committed on him; and it is a principle that the endorser of a note, for the accommodation of the maker, is entitled to strict notice. French's Executrix v. Bank of Columbia, 4 Cranch. 141. Smith and others v. Becket, 13 East. 187. Brown v. Maffey, 15 East. 216. Brown v. Mott, 7 Johns. 361.

But the manner in which the Court stated the effect of the indemnity and confession of judgment, in treating of the effect of a subsequent promise, might have tended to mislead the jury, who might have supposed that no act or confession of the defendant, after action brought, would be evidence of a binding promise, or amount to a waiver of notice. This would be a sufficient ground to reverse the judgment.

The instruction of the Court was altogether correct as to the indemnity being rendered ineffectual, by the sale on a judgment prior to the conveyance from Goughler. The argument is, that it was land purchased after the judgment, and therefore was not bound by it, according to Colhoun v. Snider, 6 Binn, 135. That case has finally settled that a judgment did not bind after purchased lands. The elaborate opinions of Justices Yeates and Brackenr.idg.é never satisfied my mind that in England, after purchased, lands were not bound by a judgment. The authorities on which " they relied, appeared to me to prove directly the contrary of the learned Judges’ position: and Mr. Sugden, in his Law of Vendors, (Sugden, 340,) a work of deep research and accurate discrimination, considers it always to have been the law, and so understood in practice, that judgments do bind after purchased lands, and consequently affect them in the hands of a purchaser. So is the law in. Maryland. Ridgely's Executors v. Gartrell, 3 Harris & M'Henry, 449. And in New York, Stow v. Tifft, 15 Johns. 464. It cannot be doubted, says Spencer, Justice, that a judgment will attach on lands of which the debtor becomes seised, at any time posterior to the judgment. And such was the opinion of the Chief Justice of this Court, in Colhoun v. Snider, 6 Binn. 135 ; but he rested on a supposed general understanding and usage. And it appears to have been the opinion of Chief Justice Shippen and Judge Smith, that the doctrine could not be supported upon the principles of the common law, but on a silent practice which prevailed in this State. That case has been decided. I would not therefore be understood as throwing out any thing to undermine its authority. The question is at rest. But as I consider the usage an innovation on the law, and not an improvement, I would not push it beyond that case, but would confine the rule most strictly to the point decided, and to the circumstances under which it was established. In this State, a judgment binds every equitable interest which the debtor has at the time of judgment.. Here, the debtor had an interest under his contract, under the written articles ; and equity looks upon things agreed to be done, as actually performed. Consequently, when a contract is made for the sale of land, equity considers the vendee as the purchaser of the estate sold, and the purchaser as a trustee for the vendor, for the purchase money. So much is the vendee considered, in contemplation of equity, as actually seised of the estate, that he must bear any loss which may happen to the estate between the agreement and the conveyance j and he will be entitled to any benefit ■ which may accrue to it in the interval; because, by the contract, he is the owner of the premises, to every intent and purpose in equity. Goughler being the owner under the articles, the moment the legal title is acquired, and the equity and the law united, the judgment attaches and binds the united interest. I cannot see how they can be kept separate ; or how, if a man purchase an estate .payable by instalments, a new interest attaches as every instalment is paid ; and the different judgments would then bind to the extent of different instalments as they were paid in. This rule would be the most inconvenient in practice, and would place real estate, which generally is held by articles, in the first instance, in a state of great confusion and inextricable perplexity. It does not fall within the decision of Colhoun v. Snider; which rule I never would extend beyond its' letter. But it is not, on ariy principle which has been advanced in favour of that rule by any of its advocates, within its reason or spirit; and is at war with every conceivable state of property and every, doctrine of the law. And in Carkhuff v. Anderson, 3 Binn. 4, the case in principle is decided. The Chief Justice considered that a pre-emption right is bound by a judgment, and v(ben the title is completed, the judgment eo instanti attached to it. And Judge Bracxenridge puts the very case of lands held by articles, and that while so held, a judgment binds the title afterwards acquired.

But for the reasons given, judgment is reversed, and a venire facias de novo awarded.

Judgment reversed, and a venire facias de novo awarded.  