
    Nash and others executors of Nash against Gilkeson and others executors of Gilkeson.
    
      Monday, December 19.
    In assumpsit for money had and received, the defendant cannot give evidence general character, though he is incidentally charged by the evidence, with committing a particular fraud.
    If such evidence be admitted, the error is not cured by the Court’s telling the jury before the bill of exceptions is actually signed, that they ought to pay no regard to it.
    Where a rule of Court requires notice of taking a deposition to be given to the opposite party, notice to his attorney is not sufficient.
    In Error.
    ERROR to the Court of Quarter Sessions of Montgomery county,
    The plaintiffs below, (who were also the plaintiffs in error,) declared against the defendants for money had and received, and having given evidence, which the defendants supposed tended to impeach the honesty of Andrew Gilkeson, their testator, they, in the course of the cross-examination of one of the plaintiff’s witnesses, asked him what was the general character of Andrew Gilkeson. This question was objected to, but the Court suffered it to be answered, and the plaintiff took an exception. The Court, before the bill of exceptions was actually sealed, being of opinion that the evidence was improperly admitted, instructed the jury, that they ought to dismiss it from their minds, and pay no regard to it.
    By the rules of the Court below, notice of the time and place of taking depositions is required to be given to the opposite party. The plaintiff below offered in evidence a deposition taken on his behalf, after notice given to the defendant’s attorney. This deposition ■ was objected to by the plaintiff, and rejected by the Court, and another exception taken.
    
      Kittera, for the plaintiffs in error.
    The evidence of Gilkeson'’s general character was manifestly improper, because his character was not put in issue. Peake's Ev. 6. Bull. N. P. 296. The subsequent direction of the Court to the jury to dismiss it from their minds could not remove the effect of it. In Shaffer v. Kreitzer,
      
       it was held to be error to allow an award of arbitrators to be read to the jury, although the Court directed the jury to. pay no regard to it. As to the •second bill of exceptions, we contend, that a notice served on the party’s attorney is good.
    
      Sergeant, contra,
    contended, that the evidence was admissible, inasmuch as in effect the action charged the defendant with a fraud. But even if it were erroneously admitted, the Court had a right to correct the error without compelling the parties to go into a Court of error. The case of Shaeffer v.Kreitzer is not decisive of the point: for there the Judge below persisted to the last, that it was evidence, though he told the jury to pay no regard to it. It often happens, that no other course can be pursued than the present: as for instance, where a witness after going through his examination is -discovered to be incompetent. As to the deposition, it was not taken according to the rule of Court, and therefore was properly rejected.
    
      
      
         6 Binn. 430.
    
   The opinion of the Court was delivered by

Gibson J.

The plaintiffs declared against the defendants for money had and received, and having given evidence which the defendants supposed tended to impeach the honesty of Gilkeson, their testator, they, in the course of the cross-examination of one of the plaintiff’s witnesses asked him what was the general character of Andrew Gilkeson, the testator. This question was objected to, but the Court suffered it'to be answered, and the plaintiffs took an exception. But the Court, before the bill of exceptions was actually sealed, being of opinion that the evidence was improperly admitted, instructed the jury, that they ought to dismiss it from their minds and pay no regard to it.

There cannot be the least doubt but the evidence was improperly received. Gilkeson’s general character was not put in issue by the nature of the action ; and it never was pretended, that where a party is incidentally charged by the evidence, with the commission of a particular fraud, that the charge can be rebutted by evidence of general good character. To this rule, I know of no exception. It is however contended, that the error committed in the first instance was Cured by the subsequent direction of the Court, as to the effect it ought to have. Independent of the technical argument that a bill of exceptions, is, in contemplation of law, supposed to be sealed the instant it is taken, although for the sake of convenience it may be reduced to form and sealed at any time before the jury come to the bar, I am of opinion, that the error originally committed could not be cured by any after act. The impression made by the evidence could not in the nature of things be entirely removed ; at least we cannot be judicially certain, that it had not some effect on the mind of the jury, and the quantum of that effect is immaterial, provided it had any. The case of a witness, discovered in the course of his examination to be interested, is by no means analogous, for the objections to his competency not being established when he was called to be sworn, there is no error in admitting him, and the only remedy in the power of the Court is, to give such a direction as was given here. But the case of Shaffer v. Kreitzer, 6 Binn. 431. is exactly like the present. The judgment there, was not reversed, because there was a perseverance in error on the part of the Court, but because the error originally committed was, (notwithstanding the direction of the Court, that the jury should disregard the evidence,) prejudicial to the plaintiff in error, and for the very reason urged here, that it was impossible for the jury to divest themselves of the effect of the evidence. This ingenious distinction, therefore, will not avail.

The second exception cannot be sustained. The notice to be given of the time and place of taking depositions is governed by the rules of the Court who grant the order. On recurring to the rules of the seventh district, we find the notice is expressly required to be given to the party. Here it was served on the attorney, and the'deposition was therefore properly rejected.

Judgment reversed, and a .venire facias de novo awarded.  