
    [Sunbury,
    June 23, 1823.]
    GARDNER against GROVE.
    IN ERROR,
    The defendant engaged to keep the plaintiff clear of back interest, but not doing' so, judgment was obtained for it against the plaintiff. Held, that from that rao» ment the plaintiff was damnified, and might sue on the engagement,
    
      Query, whether an assignment by an assignee of all his interest in land, indorsed on the original articles of agreement for the purchase of it, dispenses with the ne, cessitv of proving the articles, or any previous assignment, indorsed thereon.
    At all events, a subsequent assignment by his assignee, must be proved in the or» dinary way by a subscribing witness. A reference to such subsequent assign» ment, in a contract signed by the defendant, is not sufficient to dispense with the ordinary proof j if it refers to it generally, and contains nothing to identify it.
    This was a writ of error to the Court of Common Pleas of Centre county.
    
      Sarah Grove, the plaintiff below, brought this action against Cornelius Gardner, on a written agreement, by which Gardner promised, to keep her clear of back interest on that piece of ground that he purchased of Alexander Morrison, till the day she bought it of Christopher Ha,rlung.,3 These were the words of the contract. It appeared by the evidence, that the land alluded to in the agreement had been sold by Griffith and George Carr to Alexander Morrison, who sold to Cornelius Gardner, the de» fendant, who sold to Christopher Hartung» who sold to the plaintiff, Griffith and George Carr brought a suit against Sarah Grove, the plaintiff, before a‘ justice of the peace, and not being able to defend she confessed for 115 dollars, Hi 
      cents, the amount of the balance of principal and interest of the purchase money. The defendant, Gardner, had notice of the suit before the justice, but whether he consented to the confession of judgment was matter of dispute.
    On the trial of the cause, the plaintiff having given in evidence the record of the judgment before the justice, and some parol evidence, by which she endeavoured to prove that the defendant had acknowledged the justice of that judgment, and had also acknowledged a paper containing the articles of agreement between-t?. and G. Cg,rr and A. Morrison, offered that paper in evidence, in which were the following writings. First, the articles of agreement, dated the 1st May, 1798, by which G. and G. Carr sold to Morrison. Second, Morrison’s assignment of all his interest to the defendant. Third, the defendant’s assignment to Christopher Hartung. Fourth, Hartung’s assignment under hand and seal, attested by two witnesses, to Sarah Grove, the plaintiff. The defendant objected to the admission of this paper, unless the several instruments of writing should be proved. The court decided, that it was sufficient if the assignment by the defendant were proved; and accordingly that was proved by the plaintiff, and then the whole paper was admitted in evidence. ' To this admission the defendant excepted.
    The evidence being concluded, the court below charged the jury, that the plaintiff might recover against the defendant, although the plaintiff had not paid G. and G. Carr’s judgment. The defendant excepted to the charge of the court.
    
      Burnside, for the plaintiff in error, contended,
    1. That the court erred in admitting the different instruments of writing without due proof, by the subscribing witnesses. The rule is general, that subscribing witnesses to a written agreement, must be called upon to prove its execution, and that whether the instrument is the foundation of the suit, or comes in collaterally. The engagement of indemnity of the 14th August, 1811, contained no reference to the articles or assignments, by which they could be identified: and it was necessary to produce them, because without the articles, it could not be known what the interest was.
    2. The writing of the 14th August, 1811, was a contract of indemnity against the payment of money, and till the plaintiff' below actually paid something, she was not damnified within the terms and meaning of it. A mere'judgment without execution or payment, is not such a damage as imposes on the defendant the necessity of reimbursing her any thing.
    
      Potter, contra.
    1. It is material that this'suit is not brought on the articles, but on a distinct undertaking by the defendant. It could not be necessary to prove the instruments which preceded the defendant’s assignment, because by that assignment, he recognized and adopted them. As to the assignment by Hartung to the defendant, it was sufficient to justify the admission of that without proof by any subscribing witness, that the defendant refers to the assignment by Hartung in his engagement of the l'4th August.
    
    
      2. The plaintiff was damnified by the judgment, and had a cause of action immediately. The authorities to this point are numerous and conclusive. 1 Hen. & Munf. 449. Cro. Eliz. 264,369. Sheriff of Norwich v. Bradshaw, Cro. Eliz. 53. Peck v. Ambler, Cro. Car. 349. Clark v. M'Anulty, 3 Serg. & Rawle, 364. Ross v. Rittenhouse, 1 Yeates, 460. 13 Johns. 75.
   The opinion of the court was delivered by

Tilghman, C. J.

Two errors are assigned in this record., 1st, That no action lies before the plaintiff pays Carr’s judgment, 2d, The admission of the evidence mentioned in the bill of exceptions.

1. I am of opinion, that the charge of the court was right. The defendant engaged to keep the plaintiff clear of the back interest, but he did not do so. Judgment was obtained against her for that interest: From that moment she was damnified, because her body and property were liable to execution. The cases cited by the counsel for the defendant in error, are in point.

2. The paper offered in evidence contained several different writings. 1st, The articles between G. and G. Carr, and Morrison. 2d, The assignment of Morrison to Gardner. 3d, Gardner’s assignment to Hartung. There might be some plausibility in the argument, that Gardner, by his assignment, recognized the preceding writings on the same paper. I give no opinion on that. But, the assignment from Hartung to the plaintiff afterwards.written on the same paper, ought to have been proved. It was an essential part of the plaintiff’s case, because it showed at what time she had purchased of Hartung, and consequently, the time to which she should be discharged from the back interest. The writing in which the defendant assumed to keep the plaintiff clear of back interest, refers to the purchase from Hartung, but contains nothing which could identify the paper given in evidence. There was no reason, therefore, why that proof should be dispensed with. The subscribing witnesses should have been called. I am of opinion, that in the admission of that writing there was error. The judgment is, therefore, to be reversed, and a venire de novo awarded.

Judgment reversed, and a venire facias de novo awarded.  