
    [Lancaster,
    June 2, 1823.]
    ANDERSON’S Executors against LONG and others.
    IN ERROR.
    Articles of agreement for the sale of land are evidence, notwithstanding a deed afterwards executed under them, in a suit on bonds given in pursuance of the articles, to show, that the bonds were given for certain lands, or that the articles contained a stipulation that the bonds should not be paid without six months notice, which circumstance was concealed from the defendants, who were sureties in the bonds
    Evidence of general character of a party is admissible only in actions where character is put in issue. In debt, the plea of fraud does not put the character in issue.
    Where the defendant proves circumstances, showing anticipated payment of a bond, and the obligee is dead, the plaintiffs, his representatives, may give in evidence, to repel the presumption, that the testator received large sums of money about that time, and was not in want of funds.
    Under the plea of payment, with leave, the jury cannot find any sum due from the plaintiff to the defendant.
    The jury cannot, under any plea or notice, find a sum due from the plaintiff to the defendant, to be deducted from another debt due from the defendant to the plaintiff.
    The court will notice an error not assigned, which plainly appears where the justice of the case requires it.
    This was a writ of error to the Court of Common Pleas of Lancaster county. The suit was debt on bond, brought by the plaintiffs, Mary Anderson, William Barber, Bushnel Carter, exectítors of James Anderson, deceased, against Benjamin Long, Abraham Long, and Christian Long, defendants, in which a verdict and judgment were rendered in favour of the defendants, in the court below. The bond was dated the 1st April, 1813, and was in the penalty of 10,000 dollars, conditioned for the payment of 5,000 dollars, to the said James Anderson, on the 1st April, 1815. The defendants pleaded payment, with leave, &e., and the plaintiffs replied, non solvit, and issue.
    On the trial, in the court below, the defence was, fraud, payment, and that there was a deficiency in the quantity of the land contracted for.
    
      The defendants proved, that on the 27th April, 1814, a note, drawn by Benjamin Long in favour of James Anderson, for 8,000 dollars, at 60 days after date, was discounted at the York Bank, and the proceeds passed to the credit of James Anderson. This note was once renewed, and afterwards protested on the 9th January, 1815, and paid by James Anderson. A suit was commenced in the same month, James Anderson against B. Long, upon this note, judgment recovered, and the amount received under an execution levied on the defendant’s property. The defendant afterwards gave parol evidence by the scrivener who drew the bond, that it was in payment for land, and produced the deed, dated the Sd April, 1813, from James Anderson, and wife, to B. Long for the land, which was described to be situate in the borough of Marietta, Lancaster county. The defendant then offered to read in evidence the articles of agreement between James Anderson and B. Long, dated the 15th March, 1813, by which James Anderson contracted to make a good and sufficient deed for the land, by the 1st of April next ensuing: and B. Long covenanted to pay 450 dollars an acre, as follows: “what is over even thousand dollars, to be paid at the time of receiving the title, and for the remainder he will give bonds with such surety, as may be deemed sufficient, by the said J. Anderson; each of the three bonds, to be 5,000 dollars, and the fourth to be filled up with whatever is remaining; the first bond to be payable on April 1st, 18Í4, with interest; the second in one year after, and payable yearly, with interest: but no bond to be paid up, unless the said J. Anderson, his heirs or assigns, gives the said B. Long, or his heirs, six months previous notice, that the same must be paid. ” The plaintiffs objected to this agreement, but the court admitted it in evidence, and the plaintiffs tendered a bill of exceptions.
    In the evidence given on behalf of the plaintiffs in reply to the defendants evidence, the plaintiffs asked a witness what was the character of James Anderson for integrity: this question was objected to by the defendants, and overruled by the court, who sealed another bill of exceptions.
    To show that the promissory note of B. Long, before mentioned, was not given in anticipated payment of the bond on which this suit was brought, but in payment of the first bond due in April, 1814, and of interest on others, the plaintiffs offered to show, that James Anderson received considerable sums of money from Henry Share, in the fall of the year 1813, and in the spring of the year 1814, to the amount of between 50 and 60,000 dollars. This evidence was objected to by the defendants, and overruled by the court.
    The jury found a verdict for the defendants for 6,000 dollars, “to be deducted from the other bonds given by the defendants to James Anderson,” and judgment was entered thereon. These bonds were not due when this action was commenced.
    
      
      Rogers, for the plaintiff in error.
    1st bill of exceptions. The defendants ought not to have been permitted to give in evidence the articles of agreement. They were merged in the deed from Anderson to Long, by which the contract was concluded. The object of the defendants in giving the articles of agreement in evidence, was to show, that the plaintiffs were bound to give six months notice before they brought suit, and that they had not'given such notice. This, however, could only be taken advantage of by plea in abatement, and not by a plea in bar or evidence on the issues joined. The rule of law is, that wherever the subject matter of the plea or defence is, that the plaintiff cannot maintain any action at any time, it may and usually should be pleaded in bar: but matter which merely defeats the proceeding, and does not show that the plaintiff is for ever concluded, should in general be pleaded in abatement. 1 Chitt. Plead. 434. 1 Bac. Ab. Abatement, N. . 1 Com. Dig. Abatement, B. In Cryger v. Long, 1 Johns. Cas. 393, where the defendant was sued on a note before it was due, it was held too late to make the objection, after he had put in bail, and pleaded in chief: he ought to apply in the first instance to the court, or a judge at his chambers to be discharged. So in Lawrence v. Bowne, 2 Johns. Cas. 225, the court refused to set aside an inquest taken by default, where the defendant admitted the debt was then due, though it was not due when the action was commenced. Besides, the plea of payment with leave, under our practice, is used for the purpose of letting in any equitable defence, but not a technical objection which goes to destroy the action for informality of proceeding.
    2d bill of exceptions. The court refused evidence of. the character of James Anderson for honesty and integrity. Such evidence is regular, wherever the character of the party is put in issue, and one of the defendant’s pleas was fraud, which put the character of J. Anderson in issue. Nash v. Gilkeson, 5 Serg. & Rawle, 352., 1 Phili. Evid. 139.
    3d bill of exceptions. The court rejected the evidence offered by the plaintiffs, that J. Anderson received large sums of money from Henry Share in the fall of 1813, and spring of 1814, amounting to between 50 and 60,000 dollars. This evidence was proper, as it afforded an argument that it was impossible that Anderson, who had received large sums of money, should anticipate a payment of the bond now in suit, many months before it became due. The evidence of payment by the defendants, was not positive: they had no receipt, nor was the bond given up to them: the presumptions they relied upon to establish it, would have been lessened considerably by the circumstance of the plaintiff’s testator receiving so large a sum about the time of the supposed payment.
    There is another error apparent on the record, the assignment of which has been omitted, namely, that the jury have given a verdict for 6,000 dollars, in favour of the defendants, on the plea of payment, with leave, which is no more than an equitable defence, on which the party may resist the plaintiff’s claim, but cannot recover a verdict for overpayment. This point has been decided by this court at the present term, in the case of King v. Diehl, 9 Serg. & Rawle, 409. The omission to assign an error, does not deprive the plaintiffs in error of the right of taking advantage of error appearing on the record. In Grasser v. Eckart, 1 Binn. 575, it was determined, that judgment may be arrested for an objection appearing on the face of the record, though it was not assigned at the time of filing the motion, or of entering the appeal.
    
      Buchanan, contra.
    1st bill of exceptions. The articles of agreement were given in evidence to show, that the consideration of the bonds given by the defendants was, land sold to them by Anderson-', whether the articles of agreement were merged in the conveyance or not, they were evidence in the first instance: their merger was a mattér of posterior consideration. In the case in 10 Johns. 297, the articles were given in evidence, and then determined to be merged. They were evidence, also, in another point of view: they Contained an agreement that they were not to be paid up unless six months previous notice was given. This agreement subsisted in full force after the deed was executed, and the bonds given for the purchase money: and was, indeed, made with reference to'the existence of those instruments. It is clear, that an action cannot be instituted before the cause of action accrued, 1 Com. Dig. 142, 143, D.: and that it may be pleaded in abatement that the action was prematurely brought, 1 Chili. Plead. 442: but it is now very unusual to plead this in abatement, as it is a matter which is the ground of demurrer, or nonsuit, lb.; and, therefore, may be taken advantage of on the trial. There is no reason why it is not a good defence on the plea of payment with leave, as well as on any other issue. 2 Johns. Ch. 554, 560.
    2d bill of exceptions. Character in a civil suit is not inquirable into, unless put in issue by the nature of the action. The suit here was debt, an action which does not put character in issue. The general rule sufficiently appears in 1 Phill. Dv. 139, and in the case of Nash v. Gilkeson, 5 Serg. & Rawle, 352.
    3d bill of exceptions. To show that J. Anderson had received other money from other persons, was not relevant to the issue. If the plaintiffs were, permitted to show that he had received other money from different persons, we might go into evidence to prove, that he had occasion for that other money, and thus travel into all the transactions of J. Anderson’s life.
    4th. As to the other error, it has not been assigned, and the court will not hear it. It is sufficient if the court listen to the complaints of the parties, and decide on them. It may be admitted, that in an extraordinary case, to prevent injustice, the court ex officio, will take notice of an error appearing on the face of the record. But it must only be to prevent injustice: that, however, is not the case here. It is not unjust for the defendant to recover what the jury have found to belong to him. If, however, the verdict be in part wrong, that part may be considered as surplusage, and rejected, and the remainder be supported. Such a course could do the plaintiff no injury. The case of King v. Diehl, was not a case of overpayment, but of a partial payment on a bond which, for equitable reasons, was held not binding.
    
      Hopkins, in reply.
    1st bill of exceptions. It is very material, that the deed from Anderson had been given in evidence before the articles were offered in evidence. So far as concerned the land, the deed was a complete execution of the articles: and so far as respected the bonds, the articles were carried into effect by their execution. It is to be presumed that notice had been given before the bonds were drawn, that payment would be expected whenever the bonds were duo. No doubt the sureties in the bond knew of the articles, and if they consented to enter into absolute obligations to pay without notice, they are bound. If this agreement as to notice subsisted after-wards, what was its effect ? It was but a suspension of the right to sue, not an extinguishment. It ought to have been specially pleaded: it goes only in abatement, not in bar of the action, and should have been immediately taken advantage of. The cases cited from 1 Johns. Cas. 293, and 2 Johns. Cas. 225, are express to this point. This action was commenced in 1816, and now the defendants attempt to defeat it for want of six months notice. Had a plea been put in as a plea in abatement, the plaintiffs might have proved the notice by evidence which is now lost; or in case such notice had not been given, might have discontinued the present suit, and commenced another. As to. the introduction of the evidence for the purpose of showing that the sureties in the bond were deceived by the concealment of a material circumstance, I answer, that the evidence ought not to have been received, because the fact should have been specially pleaded. Moreover, it was the duty of B. Long to inform his sureties how the matter stood under the articles. The obligee was not bound to give them this notice.
    2d bill of exceptions. As to the evidence of the character of Anderson, I shall leave this to the observations of my colleague.
    3d bill of exceptions There had been no positive proof of payment; therefore, it was of importance to show, that Anderson being in cash from other sources, had no reason to press for an anticipated payment from B. Long.
    
    4th. It clearly appears, that the defendant has improperly obtained a judgment for 6,000 dollars. The point has been decided already in King V. Diehl. Payment with leave, is an equitable defence against the plaintiff’s demand, and cannot be extended to a recovery against him. It would be taking him by surprise. The verdict is absurd, and against truth. Abraham and Christian 
      
      Long paid no money to Anderson, and yet the verdict is for them with B. Long. It is not according to the act of assembly: for the ■ money is to be deducted from bonds becoming due at a subsequent period.
   The opinion of the court was delivered by

Tilghman, C. J.

This is an action of debt on a bond for 5,000 dollars, payable the 1st April, 1815, brought by the executors of James Anderson, deceased, the obligee, against Benjamin, Abraham, and Christian Long, the obligors. The defendants pleaded payment with leave, &c.; replication, non-payment, and issue. The bond was given in consideration of some real estate in the Borough of Marietta, in Lancaster county, sold by James Anderson to Benjamin Long, one of the defendants, and the defence set up was of a threefold nature. First, fraud in the obligee. Second, actual payment by the obligors. Third, a deficiency in the quantity of land contracted for. The defendant having given evidence of several sums of money paid to Anderson, and of the deed of conveyance from Anderson to Benjamin Long, offered in evidence, the articles of agreement between the said Anderson and B. Long, for the sale of the said property, to which the counsel for the plaintiffs objected. The court admitted the evidence, and an exception was taken to their opinion. In support of the exception, it is contended, that the agreement was executed by the deed of conveyance, and therefore, no longer to be regarded. So far as the articles were executed, they were no longer of importance, but still, it might be of service to the defendants to show them to the jury. It was necessary to their defence, to prove, that the bond was given for the purchase of the property sold to Benjamin Long, by Anderson. This did not appear, either on the face of the bond, or of the conveyance, but might be proved by the articles, which specified what bonds should be given, and when they should be payable. There was another reason too why the articles were evidence; they contained a stipulation, that six months notice should be given to B. Long, before demand of payment. The defendants complain that this circumstance was concealed from two of them, Abraham and Christian, who are sureties for Benjamin, and that this-was fraud in the obligee. I will not say wh'at strength there is in a defence of that kind, but the court might think it worthy of consideration, and it might have had some weight in the decision • of the question, whether the articles should be received as evidence. I am of opinion, therefore, that there was no error in receiving them.

Another exception taken by the counsel for the plaintiffs was, to the opinion of the court, in rejecting evidence offered by the plaintiffs of the character of James Anderson, for honesty and integrity-. In a criminal prosecution, the plaintiff may give evidence of his character, but in civil actions, except those in which character is put in issue, the law is otherwise. The plaintiffs counsel say, that the character of James Anderson was put in issue here, because the defendants accused him of fraud. But that is not putting his character in issue. By the same mode of reasoning, the defendant’s character is put in issue, in every action of assumpsit, because the declaration charges him with an intent to deceive and defraud the plaintiff. Indeed, in most of the controversies in Courts of Justice, it may be said, with some degree of truth, that character is in question; because an honest man would not act with injustice. But putting character in issue is a technical expression, and confined to certain actions, from the notice of which, the character of the parties, or some of them, is of particular importance. Such is the action brought by one man against another, for seducing his wife, and having criminal connection with her. There the injury done to the plaintiff, consists mainly in the good conduct of his wife, before her seduction; and therefore, the defendant is permitted to show that she was unchaste. So in an action of slander, the plaintiff in his declaration, asserts his own good character, and avers the intent of the defendant to rob him of it. He puts his character in issue, therefore, and the defendant is at liberty to impeach it. But it never has been supposed, that character is put in issue merely by the charge of fraud, made by one party against the other. I am of opinion, therefore, that this evidence was properly rejected.

There was a third exception taken by the counsel for the plaintiffs, to the opinion of the court below. The defendant had given evidence of payment, not so positive but that it might admit of question, and it was of payment by money borrowed from the Bank of York, on a note, of which Benjamin Long was drawer, and James Anderson indorser. This money was borrowed of the bank nearly a twelvemonth before the bond was due, and the plaintiffs supposed,' that it was applied to some other purpose, which, in consequence of the death of Anderson, it was difficult to explain, and in order to show the improbability of Anderson’s receiving payment of this bond in so extraordinary a manner, they offered evidence, that in the autumn of the year 1813, and spring of 1814, he had received from another person, sums of money amounting to 50 or 60,000 dollars. This evidence was rejected by the court. Under the circumstances of the ease, I think it should have been admitted. In a doubtful case it might have had some weight. It certainly was somewhat singular, that Anderson, supposing him to be in the receipt of large sums, should have had recourse to an anticipated payment of the defendant’s bond, by pledging his own responsibility to the Bank of York, for the money received in payment. It is also to be taken into consideration, that by the death of Anderson, the plaintiffs may be unable to give as full explanations of a transaction, which he could easily have elucidated. The evidence which they offered, might not, per se, have been sufficient. lo counteract the force of the defendants evidence. But I am of opinion, that it was pertinent, and ought not to have been rejected.

There is one more point in this cause, on which it is proper to express an opinion. The jury found a verdict for the defendants for 6,000 dollars, to be deducted from the other bonds given by the defendant to James Anderson, which were not due when this action was commenced ; and judgment was entered on the verdict. The defendant’s counsel contend, that whether this be an error or not, the plaintiffs cannot now take advantage of it, because they did not assign it for error. In strictness, they certainly cannot, because the rule of court has not been complied with. Nevertheless, the court always reserves to itself the right to correct an error which stares them in the face, when they think the justice of the case requires it. At present it is immaterial whether this error is noticed by the court or not, because the judgment is to be reversed for an error in one of the exceptions on which an opinion has been, already given. But it is for the benefit of the defendant to be informed of the court’s opinion, that the verdict was not warranted by law, and the judgment could not stand. It has been heretofore decided, that where issue is joined on the plea of payment with leave, &c. the jury cannot find any sum due from the plaintiff to the defendant. To authorise such a finding, some other notice must be given. Neither can the jury find such a verdict as has been given in this case, under any issue on any notice. At common law, a verdict cannot find a sum of money to be recovered by the defendant of the plaintiff. But by the “act for defalcation,” passed in the year 1705, 1 Sm. L. 49, “if it appear to the jury that the plaintiff is overpaid, they shall give their verdict for the defendant, and \vithal, certify to the court, how much they find the plaintiff to be indebted, or in arrear to the defendant, more than will answer the debt or sum demanded, and the sum so certified shall be recorded with the verdict, and deemed a debt of record; and if the plaintiff refuse to pay the same, the defendant for recovery thereof, shall have a scire facias against the plaintiff, and have execution for tfie same, with the costs of that action.” Now, the jury have not complied with the directions of this act. No scire facias can issue on this finding. They have ordered the sum found by them, to be deducted from another debt due from the defendants to James Anderson. Why they did so, we know not. If they thought, from the evidence, that it was the agreement of the parties, that this money should be so applied, they should have found for the defendant in this action, and no more. The other bonds should have been left to themselves; and if hereafter the plaintiffs should bring suit on them, the defendants will have an opportunity, under this plea of payment, to give evidence of their being paid, in whole, or in part. But when this cause comes to trial again, in the court below, the defendants may give such notice as will jus-* tify a verdict for any sum which the jury may think due from the plaintiffs to the defendants; and in such case, the counsel will, no doubt, see, that the verdict- is entered according to the act of assembly. Upon the whole, I am of opinion, that the judgment should be reversed, and a venire de novo awarded.

Judgment reversed, and a venire facias de novo awarded.  