
    [Lancaster,
    May 24, 1824.]
    The BERKS and DAUPHIN Turnpike Company against HENDEL and others, Executors of MEYERS.
    Where a dispute has been settled, by the agreement of the parties, it is not competent to one of the parties, in an action upon the agreement, to give evidence which relates exclusively to the subject matter of the original dispute.
    Evidence is not admissible to show, that an entry on the docket, in a suit pending, “ settled as per agreement filed,” was made by the court against the consent of the defendant.
    From the bill of exceptions returned with the record of this cause, on a writ of error, to the Common Pleas of Lebanon county, it appeared that the plaintiffs in error brought an action of covenant against the defendants in error, upon an article of agreement, executed on the 29th of April, 1817. by their testator, John Meyers. This instrument recited, that a dispute had existed between the turnpike, company and Meyers, respecting twenty-five shares of stock, subscribed by Meyers; and¿ in order to settle and put an end to the dispute, it was agreed that Meyers should keep the twenty-five shares of stock, and pay for them in the manner prescribed in the article, and that the legal costs of the suit brought, except counsel fees, should be paid by the parties in equal shares.
    - The suit referred to in the article of agreement, was brought by thé turnpike company against Myers, to recover the amount of his original subscription.
    The defendants pleaded, non est factum, and covenants performed; and at the trial, added the pleas of a former suit pending, and non infregit conventiones.
    
    After the plaintiffs had closed their evidence, the counsel for the defendants offered to prove, that the words “ twenty-five,” and the figures “ 25,” inserted in the subscription book of the company, opposite to the name of John Meyers, were not in the handwriting of John Meyers. The plaintiffs’ counsel excepted to the evidence, but the court admitted it. They also offered to prove, that Myers, at the time he subscribed for the stock, was intoxicated, 'and not in a fit situation to enter into a contract. This evidence was likewise objected to, but admitted by the court.
    To meet the plea of the pendency of another suit, the plaintiffs produced the record, by which it appeared, that that suit had been terminated by the agreement of the parties. The defendants’ counsel, tq rebut this evidence, offered to prove, that the entry on the docket, stating that the. suit had been settled by agreement, had been made by order of the court, against the consent of the defendant and his counsel. This evidence, being objected to by the counsel for the plaintiffs, the court overruled the objection, and seale,d another bill of exceptions.
    
      Five errors were assigned on the argument in this court, which, however, may be resolved into two. ^
    ^ Norris and Weidman, for the plaintiffs in error.
    1. The evidence admitted by the court below, had no relation to the issue then trying on the article of agreement, but to Myers’ original subscription. It was not evidence under the plea of non est factum, because it did not tend to show, that the deed was void ab initio. Nor was it evidence under the plea of covenants performed, or non infregit conventiones; under which the defendant is confined to proof, that he has performed the covenants, or never broken them. The evidence given by the defendant, went to open the dispute about his original subscription, which had been closed by the agreement, on which suit was brought. Peake’s Evid. 264, 265. 1 Mass. Rep. 5. Bender v. Fromberger, 4 Dali. 439. 1 Chilly on PI. 482. Perkins v. Gay, 3 Serg. 8? Raíale, 332.
    
    
      2. The agreement filed of record, was binding on the plaintiffs, and should be equally so on the defendant. It admitted of no parol explanation, and it was clearly error to permit evidence to go to the jury, which went to contradict the record.
    
      Wright and Fisher, for the defendants in error.
    1. Under the plea of non est factum, the defendants had a right to avoid the deed, by showing that the recitals it contained were false, and that the defendant never did subscribe for the twenty-five shares of stock.
    2. The evidence given in relation to the docket entry, was not offered to contradict the judgment of the court, but to show the inaccuracy of a memorandum of the clerk, which formed no part of the record. The plaintiffs having produced the record, the object of the defendants, was to explain the entry so far as to show that their testator did not assent to it. Parol evidence was necessary, to show what paper was referred to by the entry, “ as per agreement filed. ”
    
   The opinion of the court was delivered by

Gtbson, J,

In the five errors assigned in this cause, there are, in reality, but two points. Meyers, the testator of the defendant, when intoxicated, as it is supposed, had subscribed twenty-five shares of the stock of the corporation that prosecutes this action; and for which, supposing himself to have been imposed on, he refused to pay. An action was commenced against him, pending which, a compromise was effected, and articles of agreement were-executed; by which it was covenanted, that Meyers should retain and pay for the shares subscribed by him, and that the parties should each pay a moiety of the costs incurred in the action then pending; and on these articles the present action is brought. The defendants pleaded non est factum, covenants performed, and the pendency of another action for the same cause; and at the trial, offered evidence of circumstances relating exclusively to the original subscription; which, after objection by the plaintiffs, was permitted to go to the jury. Nothing can be clearer, than that this evidence, having no relátion to the issues, was incompetent. What operation'a recurrence to the original grounds of controversy, which had been compromised, could have on the technical question of the articles, to which the defendants’ pleas had regard, except to mislead the jury by their prejudices, I am at a loss to discover. If there were fraud or unfair practice, at the execution of the articles, that would be material; and evidence of it, competent at least, if it were specially pleaded. But the evidence related to a period long anterior to the compromise; and there is error in. the admission of it.

Then, as to the other point. The defendants, having pleaded the pendency of the suit founded on the original subscription, in abatement, the plaintiffs produced the record; by which it appeared, that suit had been ended by the agreement of the parties; and, to rebut this, the defendants offered to prove, that neither Meyers nor his counsel had assented to the entry, but that it had been made by direction of the court, and against their will, as openly expressed at the time. This' evidence was objected to, but admitted. Now, beside the consideration that the record imported absolute verity, and was not to be explained away by extrinsic proof, the evidence offered, proved nothing. Take it that the defendant did object to the entry, still it was made, and, in fact, put an end to the suit. But the plaintiffs had a right to end their suit without the consent of the defendant; and this particular entry, no matter whether it were made with a fraudulent intent or not, would have the effect of precluding the plaintiffs from ever prosecuting it afterwards. Now, this was the only material fact connected with the record; and the court, after ascertaining that the former suit was at an end, should have gone no farther: for it was altogether immaterial to inquire, how it came to be at an end, or whether by the consent of the defendant or not. For these reasons, the judgment is reversed, and a venire facias de novo awarded.

Judgment reversed and a venire de novo awarded.  