
    Patton’s administrators against Ash and another who survived Tybout, administrators of Craig.
    
    Monday, June 25.
    
    . In.'Error.
    ERROR to the Court of Common Pleas of Northumber~ , , land county,
    If, in a civd cause, the mode of aiteníate challenge be adopted under the Act of Assembly, it must he 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. ' ,
    At) administrator, who is one of -the plaintiffs iu the suit may be examined as a witness for the plaintiffs, after he has executed a release to the heirs of his claims to commissioli and has paid to the prothonotary a- siim sufficient to pay all costs which have accrued or may accrue, to be applied to such payment, let the verdict lie as it may, unless it appear that he is in danger of being involved in a devastavit. •
    A naked cheek 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 tile 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 bank 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. 1
    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 he a true copy of au 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,' statingthat 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 satisfies that it had no refe« sense to the affairs on which the suit was founded.
    
      This action was brought' by James Ash and William Hall, surviving administrators of James Craig, deceased, against the administrators of John Patton, deceased. The declaration contained, besides the usual money counts, an indebitatus assumpsit and quantum valebant for goods sold and de- ,. , . , . , livered, an znsimui computassent, and also a count laying an assumption by Patton in his life, time, to the administrators of Craig themselves. The defendants pleaded non assUmp..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 cláimed by the plaintiffs’ counsel, and allowed by the Court, under the following ■ circumstances. The jury being called, the plaintiffs peremptorily challenged Daniel Hoof man \ 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 Craigs 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.
    
      The fourth exception was to the admission of James Craig’s bank book, containing, his account with the bank of Pennsylvania, and a check drawn by James Craig, on the bank of Pennsylvania, dated the 20th of May, 1795, for 1679 dollars, payable to John Patton, or bearer. To explain this exception, it will be necessary to take into view some of the ev*^ence Slven before the bank book and check were offered. It had been proved by the oath of James Ash, that at the earnest solicitation pf 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 gi026, 87¡| 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 allowed by the Court, and an exception taken by the defendants. u 1
    Seventh exception. . The plaintiffs offered evidence to prove, that .a note for 350 pounds was given by Patton and Craig, to a certain John Wright Hanley, as the witness preJr , , e ,. ,, -, , . . * ■ sumed tor the purchase oí a brig, called the óukey, purchased by them, which vessel Ash arid 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 cle-fendants.
    The eighth exception was to the admission in évidence 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.
    . Vhe 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 hefore the commencement of the action. To take the case out of the act, the plaintiffs relied ori 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 cáse, out of the Statute of Limitations, there must be an acknowledgement of a subsisting debt, or a promise to pay withiri.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:
    
      Centré County, 16th Nov. 1802.
    . Dear Sir,
    My trunks containing my books rind pa- • pers, were in.a private room, at Dumvoody's open; some time before I left the city, I searched for Captain Craig's account and ray own, that I had drawn out, but could not find them. My books are now at Harrisburg, I expect to receive them. shortly, and as soon as their arrival here, shall have: myaccount ma(je out again. In the mean time, I beg the favour of you to have the other made out, and forward to me by some safe hand. I am sorry to put you to this trouble, but it is. unavoidable from the circumstance mentioned.
    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. , .
    I am &c.
    
      John Patton,
    
    
      James Ash, Esq,
    
      Carothers and Burnside, for the plaintiffs in error.
    1. The Court ought not to have permitted the plaintiffs t@ make a sécond 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 bach party' sháll 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 cáse, when the plaintiffs refused to challenge a second jiiror, 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 them-t selves of interest in the cause, at the bar.
    
      4. Craig’s bank book and check, were both improper evidence. It is doubtful whether the check was evidence even connected, with the circumstances proved : but as to the bank book, it certainly was not, without proving the entries 'in it by the bank clerk Who made them. 2 Esp. N. P. .495. 47S. 4 Esp. N. P. Rep. 9. No steps whatever had been taken to procure this proof, and therefore length of time is no argu- * 1 ment. '
    5 6, St 7. These bills of exceptions depend on the same principle. We objected to the evidence-because it related to a partnership transaction, which partnership was proved by the plaintiffs themselves. Account render is the only proper action between partners, until the; account is settled ; and here was no evidence of the settlement of 'this partnership account. It is well settled that no action of assumpsit lies by one partner against another, without an express promise. 2 Caines Rep. 293. Ozeas v. Johnson, 1 Binn. 193.
    The copy of the letter from Ash to Patton, was certainly not evidence. We were not called on to produce the original, nor was it proved that it ever came to Patton’s hands. Ash merely proved that he put it.into the post office.
    As to the charge of the Court: the letter of Patton did not refer with certainty to the account which is ’the subject of this suit, and the Judge should have told the jury that unless the letter did so refer, it could have no effect on the Statute of Limitations ; or perhaps the jury should have been told expressly that this letter had no effect on that Statute. The principles in relation to the efficacy of an acknowledgment in taking the case out of the Acts of Limitations have been much restricted of late, and the prévalent opinion is, that Judges have gone quite far enough. In Clemenson v. Williams, 8 Cranch, 72-, it is held, that an acknowledgment "that a debt was originally due' is not enough : it tnust bp an acknowledgment that it is due. Só it is decided in Kehtucky, that there must ,be an express acknowledgment of a debt due at the time of the acknowledgment. Hardin’s Kent. Rep. 301.
    
      Greenough and Hepburn, contra.
    1. The Act of Assembly gives the right to challenge two jurors, and in this case the plaintiffs, challenged only two. The Act does not prescribe the mode of challenge: that is a matter which depends on the practice of the Court, and in which different Courts vary. The practice in this district is conformable to the course pursued in the present case, There was no waver of a further right of challenge, but only as to the original pannel. When the defendants by their second challenge brought a new juror into the box, we claimed the right to challenge him : and that right could not have been waved before, as it did not exist in regard to the juror then brought in.
    2. As to the competency of Ash, that question is .fully settled by the former opinion of the Court in this case. 3 Serg Ratule, 300, and.by numerous authorities. 3 Binn. 506. 6 Binn. 16. Phill. Ev. 36. 57. 6 Binn. 481. 2. Dali. 172. 4 Dali. 137.
    
    4. The bank book and check, were evidence after what had passed. It was an old transaction, having taken place twenty-five years before the trial. In Egg v. Barnet, 3 Esp. N. P. Rep. 196, it was held, that a check on the back of which was the name of the person to whom it was paid, coupled with other transactions, was evidence. As to the bank book, it was proved to be Craig’s, and the entry corresponded exactly with Ash’s evidence. It could not be expected at the end of twenty-five years, that evidence could be produced of the hand writing of the clerk of the bank, who made the entries. They cited 2 Teates, 4177. 4 Binn. 198.
    5, 6, & 7. The objection is, that it was a partnership concern. But here was no acknowledged partnership, and it was for the jury to decide whether there had been a partner- ■ ship. We deny that they were partners. They owned a ship in certain proportions, and might each sue the other. 1 East, 20. Account render would not lie against Patton’s administrators ; he never received the money of Craig. 5 Binn. 564. 1 Bac, Ah. 36. 1 Caines, 188. 2 Johns. Cas. 329. 10 Johns. Rep. 226. 9 Johns. Rep. 470.
    8. We offered a number of letters together, and they were objected to altogether: no particular objection was made to the copy as a copy.
    As to the charge of the Court. It was proper-to leave the question as to the acknowledgment, to the jury, because it depended on various letters, some of them referring to matters extrinsic to the letters themselves. The letter of 16th November, 1802, referred to accounts, .the facts respecting which, were necessary to' elucidate the meaning of the .parties, and none but the jury could determine this. It is the rule, that when the'writing is ambiguous, it should be left to the jury. Miles v. Moodie, 3 Serg & Rawle, 211. 1 Esp. N. P. ('Gould’s Ed.) 219. l.Binp. 212. 5 Binn. 573. 1 Serg. Rawle,179.
    
    
      
       For a former report of this ease, see*3 Serg, id Hatole, 30ft
    
   The opinion of the Court was delivered by

Tilghman C. J.

On the trial of this cause in the Court below, the defendants’ counsel took eight bills of exceptions to evidence, and also an exception to the charge of .the Court. Each of these shall be considered in the order in which they stand on. the record.

The 1st exception was, to the challenge of a juror, claimed by the plaintiffs’ counsel, and admitted by the Court. The Act of 4th April, 1809, (5 Sm. L. 59,) gives to each party, in all civil suits, the right of challenging two jurors peremptorily, but does not direct the mode, in which the challenge shall be made. It has been the general practice for the plaintiff to challenge one juror from the whole pannél first., It was so done in the present case ; after which, the defendant challenged one.' It has also been the practice in this, and other judicial districts, to summon a talesman in the place, of each juror that has been challenged, immediately after the challenge. So also it was done in this case. After the defendant had made his first challenge, the right , of making 3. second challenge came to the plaintiff; and it is stated on the record, that he waved a second challenge. Upon this the defendant made a second challenge, and a juror having been summoned in the room.of the one so challenged, the plaintiff claimed the right of challenging him, and the Court permitted the challenge. In this, I think there was error. If the plaintiff waved the second challenge, when it came to his turn to make it, he should not be permitted to resume it again. It would give him an unfair advantage. The mode of alternate challenge, having been commenced, must be preserved with uniformity to the end. The plaintiff had á right' to wave his challenge, but having waved it, he must abide by it.

■ The second exception was to the admission of James Ash, as a witness. He is one of the plaintiffs on the record, but, previous to his admission, he had executed a release to the heirs of James Craig, of all claims to compensation by way 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 may accrue in this suit, t0 be applied to the payment of these costs, let the verdmt be as Jt may . so that jn evert7 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. Thus he stood completely divested of all interest, actual or contingent. Thus circumstanced, I have no doubt that he was a competent.witness. He was a bare trustee, at the commencement of the action, and there is no suggestion that he was in any danger of being involved in a devastavit. If any thing of that kind had appeared, he would have been interested, It was decided by this Court, in the case of Steele v. The Phœnix Insurance Company, (3 Binn. 306,) that the bare circumstance of being a plaintiff on record, did not render a man incompetent, provided he was free from interest when he was offered as a witness. This principle has been ever since acted upon in all the Courts, and may be considered as the law of the land. I speak of it as a general principle, to which there may be exceptions, when witnesses are offered under circumstances of strong suspicion. To attempt now, an examination of all possible exceptions is unnecessary, and would be dangerous. I only wish it to be understood, that there may be cases in which a witness may be offered, under circumstances sufficient to exclude him, although he cannot be proved to be absolutely interested. But in the present instance, it does not appear that Mr. Ash ever had any interest, except what might arise from his commission as an administrator, and from his being liable to the costs of suit; and having completely discharged himself from both these, and standing under no suspicion whatever of improper conduct, in order to make himself a witness, he was competent upon principles well established. In his admission, therefore, there was no error.

The third exception has been abandoned by the plaintiffs in error.

The 4th exception was to the admission of James Craig’s bank book, (containing his account with the bank of Tennsyl sania,) and a check drawn by James Craig on the bank of Pennsylvania, dated 20th May, 1793, for 1979 dollars, payable to James Patton, or beaper. To decide this exception, it will be necessary to take into' view ' sortie of the evidence which had been given, before the bank book and check were offered. ‘ It had been proved by the oath of James Ash, that at' the earnest solicitation of John Patton, and for his accom- , . ... , , , . , , , , ' modation, a note had been drawn by the said Ash, payable to Patton for 2000 dollars, dated May 13th, 1793. - 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 indorsor, and consequently the.money was placed to his credit in the bank, it was necessapy 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. It is evident then, at the first glance, that' not only were this book and check in direct corroboration of Ash's testimony, but they were so connected with it as to form a link which ought not to have been broken; and had they not been produced, the defendants might well have remarked, that Ash’s testimony was suspicious, as it stood unsupported by -the bank'book and check, which were in his power, and which would either verify or disprove- what he had sworn. A naked check, payable to one or bearer, is not evidence per se of payment to the person whose name is inserted—because the bank pays to the bearer, whoever he may be. It is necessary therefore to prove, that the person to whom payable, received the money at the bank. And even then, it may be expected; that in order to charge such person with a debt,some evidence should be giving, to explain the consideration^ of the check; for it may have been given in payment of a debt due from the drawer. In the present case however, after the introductory testimony of James Ash, the book and check, would undoubtedly have been evidence, provided the usual proof had been made, of the truth of the entries in the bank book. These entries are always made, by one of the clerks of the bank. It is necessary therefore, that they should be • ' ' proved by the' clerk who" made them, or in cáse of his death his hand writing should be proved. It is'not-enough that this book, was the bank book of Craig. He might have made. entries in it. himself, or procured them to be made by some Dther person, not a clerk of the bank; and such entries would , , _ • . „ not be evidence, in ancient transactions, great allowance will be made for the difficulty of proof. But it should be shewn, that such difficulty exists. The plaintiff took no step whatever to prove the .entries in Craig’s book.' For any thing - that .we know., the clerk may be living, or, if dead, his writing may. be well known. ’Iii all probability it is well known. I have often seen bank books given in evidence,- but never without the. entries .being verified by the oath of the clerk who made them,- unless such proof( was dispensed with by the adverse party. I am therefore of opinion, that for want of such proof, the bank book of James Craig was not evidence. Neither do I think the check was evidence, because .there was not sufficient proof that Patton received the money from the bank. James Ash’s testimony was general-; that Patton got the money, and that he could not have received it without Craig’s check; but he did not pretend to say, that within his own knowledge, the check was paid to. Patton, or that it was paid to any body. He found it, cancelled, among Craig’s papers, and therefore presumed it was paid. But, with the bank book, the check would have been evidence, because it Would then have appeared, that the check was paid by the bank, and connected with the other circumstances proved by Ash, it should, have gone to the jury,'who might well have inferred that the payment was to Patton.

The 5, 6, and 7th, exceptions depend on-one principle and may be considered , together. The Plaintiffs offered in evidence, the .record of a judgment in the Supreme Court, the 1-lth December, 1797, for James Seagrave against John Patton, Afames Craig, and three other persons, for the sum of 4026 dollars, 87á cents, and also offered to prove' that Craig paid Patton’s proportion of this judgment. They also offered in evidence, a note for 350 pounds, from Patton and Craig, to a certain John Wright Stanly, and offered to prove that Craig paid Patton’s half of this note. The evidence was admitted, although the defendants objected to it, alleging that their payments were in the course of partnership transactions, and therefore could not be recoverable in the present action, or in any othér, than an action of.account render. Had it clearly appeared, that unsettled partnership transactions were involved in these payments, the objection might have been good. But; it did not clearly appear so, and whether or no it was a partnership transaction, the jury might-judge. It is riot to be supposed, that the defendants were injured by the admission of this evidence, because the •Court gave it in positive charge to the jury, that if the payments related to a partnership account, the plaintiffs could not recover on them, in this action, unless the partnership accounts had been previously settled, or Patton had made an express promise to pay. Thus qualified, I perceive no error in the admission of the evidence.

The 8th exception, was to the admission of a. number of letters from, Patton to Craig, and' to Ash, all admitted to be the hand writing of Patton, and the copy of a letter from Ash to Patton. These letters were offered all together, and the defendant objected to all and each of them. There is not a particle of doubt on this exception. The -letters of Patton were clearly evidence, and the.copy of Ash’s letter, as clearly not evidence. For although Ash proved, that it was a true copy of the original, which was directed to John Patton, and put into the post office, yet it is against principle, to admit the copy of any private paper, without accouiitirig for the non production of the original. A copy, in its nature, is less satisfactory evidence than the original.. And when.the original, is in the hands of the adverse party, notice should be given to him to produce it. In this case notice was not given, and therefore the copy was not evidence.

The last exception is to the charge of the Court, on the subject of the Act of Limitations. The transactions on which the plaintiffs’ claim was founded, took place more than six. years before the co'mmencement of the action. To take the case out of the Act, the plaintiffs relied on several letters of Mr. 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’ counsel on this point. The Court’s answer to this question, (the fifth question proposed by the defendants’ counsel,) which is to be considered as part of the charge, is in the following terms., if To take the case out of the Statute of Limitations, there must be an acknowledgment of a subsisting debt, or a promise to pay, within six years before the action brought, and the acknowledgment and promise to pay must have a direct reference to the demand now made by the plaintiffs, which fact the jury must determine from the evidence in this cause.” The defendants* objection to this opinion, is, “ that Patton’s letter did not refer with certainty to the account, which is the subject of this suit 5 and the Judge should have told the jury, that unless the letter did so refer, it could have no effect on the Statute of Limitations, or rather he should have told them, that this letter had no effect on the Statute.”

Let us examine this letter then, and see what force there is in the objection. It appears, from the letter, that Patton had received from Ash, a copy of Craig’s account against him ; and also that he had made out from his own books, his own account against Craig, but had lost them both. He therefore requests Ash to have another copy of Craig’s account made out and sent to him, and informs him, that as soon as he has received his books, which he expected to do soon, (they were then at Harrisburg, on the way from Philadelphia to Patton’s house in Centre county,) he would have his own account made put again ; the letter concludes with saying, “I will write you again some time hence, and inform you when I will again return to the city, and put a close to this affair in the best manner I can.”

Now, we see that in this letter, Patton expressly acknowledged an unsettled account with Craig’s estate, and an intention to close it. By closing it, I understand paying it, if the balance should be against him. It would have been most extraordinary indeed, if the Court had directed the jury that this letter could have no effect on the Statute of Limitations. If the Judge had passed any opinion upon it, he might truly have said, that it- was quite sufficient, to authorise the jury to presume a new promise within six years, unless they were satisfied, that it had no reference to the affairs, on which the action is founded. But it ought not to have been taken from the jury entirely, because there was a reference to accounts, of which the jury, and they only had a right to judge. In my opinion, therefore, the charge was on this point, more favourable to the defendants than their case deserved ; but of that, they have no right to complain.

On the whole, I am of opinion that the judgment should be , , ^ • i j j reversed, and a new trial ordered. ■

Duncan J. gave no opinion, having been counsel for the plaintiff in error.

Judgment reversed and a venire facias de novo awarded.  