
    Hess executor of Hess against Heeble.
    Monday, May 25.
    In general, evidence is not admitted to contradict a record; bot where issue is joined on a special declaration in assumpsit, the plaintiff may give evidence *n support of his case, though it may he inconsistent with the record of another action brought by him against the same defendant; but the effect of the evidence when given is to be decided by the Court.
    In Error.
    ERROR to the Common Pleas of Lancaster county.
    It was an action of assumpsit brought to recover forty pounds, part of the price of a tract of land sold by the plaintiff to the defendant, on the 2d April, 1800. By the terms of the contract which was declared upon specially, the defendant was to pay one hundred pounds on the first of the following May, and fifty pounds in two years afterwards, or by two annual instalments at his option. He paid sixty pounds, part of the first payment, and for the remaining forty pounds this suit was brought.- Notwithstanding the pendency of the present action, the plaintiff brought to November Term, 1802, a second suit for ninety pounds, the whole sum due after deducting the payment of sixty pounds. It was tried at August Term, 1807, when he obtained a verdict and judgment for one hundred and eighty dollars and forty-one cents, being a little more than the amount of the last payment of fifty pounds-with interest. On the trial of the present cause, the plaintiff having given in evidence the record of the former recovery, offered to prove, that the two suits were brought on the same agreement; the present being brought for forty pounds the residue of the first payment, and the second for the last payment of fifty pounds. This evidence was rejected, and a bill of exceptions sealed, which, however, was withdrawn during the argument. The plaintiff then offered to prove the contract as above stated ; the payment of sixty pounds ; the non-payment of forty pounds, part of the first payment, and that the second suit in which there was a recovery was brought for the remainder of the purchase moaey. This too was rejected. He thr-n offered to prove the contract as laid in the declaration, which being also rejected, he excepted to the opinion of the Court, and the cause was removed to this Court by writ of error.
    ■ Hopkins and C. Smith, for the plaintiff in error,
    cited Thomas v. ■ Rums ay . . Lyttle v. Lee.
      
       ■ Snider , v. Croy.
      Haak v. Breidenbach.
      Phill. Ev. 235.
    
      Buchanan and Montgomery, for the defendant in error,,
    eited, Hitchen v. Campbell.
      
       Brockway v. Kinney.
      
       Snider y. Croy.
      
       Rice v. King.
      
       Johnsonv. Smith.
      
       Manny v. Harris, 
      
      Curtis v. Groat. 
      
       Irwin v. Knox.
    
    
      
       6 Johns. Rep. 33.
    
    
      
      
         5 Johns. Ref 112.
    
    
      
      
         2 Johns. Rep. 227.
      
    
    
      
       6 Binn. 12,
      
    
    
      
       2 Bl. Rep. S27. 3 Wils. 804. S. C.
      
    
    
      
      /) 2 Johns. Rep, 210.
    
    
      
       2 Johns. Rep. 230.
    
    
      
      
         7 Johns. Rep. 20.
      
    
    
      
      
         8 Johns. Rep. 383.
    
    
      
      
         2 Johns. Rep, SO.
      
    
    
      
      
         B Johns. Rep. 168.
    
    
      
       10 Johns,Rep, 365.
    
   The opinion of the Court was delivered by

Gibson J.

Without.pretending to determine what would -have been the effect of the recovery, in the second suit, on a question, whether the plaintiff might give evidence, tha!t the present demand had not been submitted to the jury, or considered by them, notwithstanding it was included in the declaration, .we are of opinion, that all the evidence which went to shew the second suit was brought to recover the last payment only, was inadmissible. The question was not, whether the plaintiff should explain, by parol evidence, what was submitted to, and what withdrawn from, the consideration of the jury, but whether he might shew the second suit was brought for but SOI. the last payment, when it appeared by the record he had given in evidence, that it was brought for 90/. the whole sum due after deducting 60/. paid. This was in direct contradiction of the record, and inadmissible. As the cause will go back to another jury, it will be in the power of the defendant, by pleading a former recovery, or giving the record in evidence, to raise the' question, how-far that recovery is conclusive, in this action, as to all matters contained in the declaration, or how far the plaintiff may explain what wasj.or was not submitted to the consideration of the jury; that matter is not before us, and we give no opinion on it. But it is extremely clear, the plaintiff was not estopped by the record produced from proving his case as laid. The value of the evidence when given was one thing; its competency another. We are decidedly of opinion, it should have been admitted; the judgment, therefore, must be reversed.

J udgment reversed.  