
    [Chambersburg,
    Oct. 31, 1822.]
    BRINDLE and another against M'ILVAINE.
    IN ERROR.
    If a bill of exceptions state that the court permitted evidence to be given, and then exception was taken, on error brought, it cannot be alleged that no such evidence was afterwards given. If the evidence had been withdrawn, that should be stated in the bill of exceptions.
    The declarations of a vendor, after a sale, who is not a party to the suit, are not evidence, especially to contradict a written instrument.
    Payments by the obligor to the obligee, without notice of any assignment of the bond, are good.
    Error to the Court of Common Pleas of Franklin county, in which a verdict and judgment were rendered in favour of the defendant in error, the plaintiff below.'
    It was an ejectment for 25 acres of land, situate in Franklin 
      county, brought against George Brindis and John Brotherton, by Elizabeth M‘Ilvaine, the. plantiff below, who having died after the commencement of the action, Alexander Mfllyaine, her heir, and devisee, was substituted in her place, according to the act of assembly in such case provided. A decision took place in this cause, upon a former, writ of error, which is. reported, 7 Serg. & Rawle, .345, where the title, of the parties is stated.
    On the present trial, in the court below, a bill of exceptions was signed by. the judges, which stated, that “the -plaintiff, further to support the said issue, and to prove the.same on his part, proposed, and offered to prove, the declaration^ of Robert Hazlet, in the year 1809, while the occupancy of the land in dispute, relative to' the character in which he held and occupied the same, and in relation to the sale to Brotherton. To which testimony so offered by the plaintiff the defendants by- their counsel objected, and the court, upon argument overruled the objection, and permitted the evidence‘to be given. Whereupon the defendants excepted to the opinion of the court, and prayed them to seal this bill of exceptions, which is accordingly done.” A witness was then examined on behalf of the plaintiff, but he was not able to state any of Hazlet’s declarations on the subjects mentioned in the bill of exceptions.
    The plaintiff further.offered evidence of the payment of money to Robert Hazlet by Elizabeth MHlvaine, in the year 1811, and at other times prior to the commencement of this suit. The defendants objected to this evidence, but the court admitted it, and sealed a .Second bill of exceptions.
    The defendants proposed several points to the court, on which they requested them to charge, and the answers to them were now assigned for error. But one, however, was npticed in the argument, namely: “Unless there is full and satisfactory evidence that the full amount of the bond of Elizabeth MHlvaine to Hazlet, was paid to Hazlet,- prior to the sale made by him to Brotherton, or that which was then due has been since paid to Brotherton, the plaintiff cannot recover. ” This point was answered by the court in the negative.
    
      S. Riddle and Hughes, for the plaintiff in error.
    
      1st Bill of Exceptions. The declarations of Hazlet were not evidence to explain his sale to Brotherton. He was not a party to the suit, and his sale was by written articles of agreement, on which part of the purchase money had been paid. The lease to him was also in writing, and was the only proper evidence of the character in which he occupied the land. It could not be contradicted or varied by parol proof. . ■ •
    
      2d Bill of Exceptions. The evidence of payments by E. MHl-. vaine to Hazlet was improperly received. These payments were, made to him by her in her own wrong. After his disposition of the land,- he was not authorised to receive' the balance due.
    
      
      Answer of the Court. — After the sale, the payments should have been made to Brotherton. His title was valid, although the consideration was part in money and part in land. E. Ilvaine, had no equity against him until payment of her bond.
    
      Chambers, Jr. and Chambers, contra.
    lsi Bill of Exceptions. The former opinion of this court determined, that the sale1 by Hazlet to Brotherton was not'in pursuance of the power. No estate therefore passed by the sale. But, in fact, the defendants were not injured by the decision- of the court below, for though the plaintiff was allowed to give the evidence of Hazlet'’s declarations, no such evidence was given. The witness who was expected to prove it, had no knowlege on the subject.
    
      c¿d Bill of Exceptions. The payments by E. Málvame to Haz-let were made in the regular discharge of her contract: the bond was payable to him, and she had no notice of any transfer of the right in the bond or the land.
    
      Answer of the Court. — This is the same point as the forgeoing. If the payments to Hazlet were, regular, E. MHlvaine was not bound to pay Brotherton.
    
   The opinion of the court was delivered by

Tilg-hmAN, C. J.

This ejectment was brought.by Elizabeth M‘Ilvaine, upon whose death, Alexander MiIlvaine, her heir, was made plaintiff, according to the act of assembly in such case provided. It is the second time it has been brought before this court by writ of error, and having fully stated the material'facts in my former opinion, I shall refer to that statement without repeating it now. Op the last trial in the court below, the counsel for the defendant took two bills of exceptions to evidence, and several exceptions tp the charge of the court. The 1st bill is as follows: The plaintiff proposed and offered to prove, the declarations of Robert Hazlet, in the year 1809, while in the occupancy of the land in dispute, relative to the character in which he held and occupied the same, and in relation to the sale to Brotherton, to which testimony so offered by the plaintiff, the defendants by their counsel objected, and the court, upon argument, overruled the objection, and permitted the evidence to he given, whereupon the defendants excepted to the opinion of the court,” &c. The plaintiff’s counsel have attempted to destroy this bill of exceptions, by alleging, that after the court had decided, that the evidence might be given, the pláintiff’s witness was not able to give any testimony respecting Hazlet’s declarations, and therefore the defendants were not injured by the opinion of -the court to which they excepted. But this is an allegation which cannot be permitted, because it is in direct contradiction to the bill which is part of the record, and in which it is averred, that the evidence was permitted to be given. After the court had decided that the .evidence -was admissible, it was in the power of the plaintiff to withdraw 'it, in which case it should have been inserted in the record that it was withdrawn, but as this record stands, it must be taken for granted that it was given. Were the declarations of Hazlet evidence then or not? In the first place,' they were offered to show the character in which he .occupied the land in dispute. But that character had been fixed, by a written lease which he' had accepted from Brotherton, and which could not be contradicted by any declarations of his — and in the next place, his declarations were offered, respecting a previous sale which he had made to Brotherton, by written articles of agreement. Hazlet 'was no party to the suit, and therefore his delarations, subsequent to the salé, were not evidence against Brotherton. But there was a particular impropriety in hearing parol declarations, touching a written contract. I am of opinion, therefore, that the evidence ouglit not to have been received. '

The second exception was, to the admission of evidence offered . by the plaintiff to prove the payment of money to Robert Hazlet, by Elizabeth M‘Ilvaine, in the year 1811, and at other times prior to the commencement of this suit.” Mrs. M‘Ilvaine had given her bond to Hazlet, on the 24th March, 1808, for £325, (the purchase money of the land in dispute) payable on the 25th March, 1808; why then should the plaintiff not give evidence of payment at any given time. Because, says the defendant, Házlet, before the year 1811, had sold the land to Brotherton, and if Mrs. MlIlvaine considered that sale as void, and insisted on. keeping the land herself, she ought to have paid the balance of the purchase money to Brotherton, and not to Hazlet. How the matter would have stood, if Brotherton had given her notice that her bond was assigned to him, and warned her not to make payment to Hazlet, is another question. It does not appear, that she received any such notice, and on that state of the case, it is extremely clear that she had a right to make payment to Hazlet; nay, that she could not safely have paid her money to any body else. • Because, even if she knew that Hazlet had sold to Brotherton, it did not follow that he had assigned her bond to him. And it was decided by this court, in the case of Bury v. Hartman (4 Serg. and Rawle, 175} that payment to the obligee, after assignment, and before notice, is good against the assignee. I am of opinion, therefore, that the evidence was properly admitted.

The defendant’s counsel took exceptions to several answers of the court below, to questions proposed for their opinion; but as they have only argued one of them, I shall not take notice of any other. That question (the 6th) is in the following terms. “ Unless there was full and satisfactory evidence, that the full amount of the bond of Elizabeth M‘Hvaine to Hazlet, was paid to Haz-let, prior to the sale made by him to Brotherton, or, that whatever was then due, has been since paid to John Brotherton, the plaintiff in this, case cannot recover.” The court negatived the defendant’s proposition, and very rightly, for reasons which I have al-' ready given in my remarks on the 2d bill of exceptions. • In the case here put by the defendant’s counsel, there is no mention of notice to. Elizabeth M'Ilvain, of the assignment of her bond, and under these circumstances, her payment of the whole money to Haüet, and nothingto Brotherton, would be no impediment to the plaintiff’s recovery. I am.of opinion, on the whole, that judgment should be reversed and a venire de novo awarded.

Judgment reversed and a venire facias de novo awarded.  