
    [Sunbury.
    Jul 5, 1826.]
    OVERTON against TRACEY.
    IN ERROR.
    A party who joins in a commission and examines witnesses upon crpss-intetrogato* ries, cftnnot, upon the trial of the cause, object that the interrogatories of the other party are leading in their character.
    If, upon-the execution of an assignment of a bond and mortgage under seal, and in tlie presence of two witnesses, which neither contains a guarantee of the sufficiency of the mortgaged premises and the solvency of the mortgagor, nor states that it is without recourse to the assignor, the assignor declare, that the mort- ■ gaged premises are worth double the sum for which they are mortgaged, that the mortgagor is .solvent and able to pay the debt, and that if he should tail to ■ do so, he, the assignor will be accountable for it, and, upon being requested by the assignee to have the guarantee reduced to writing, lie reply, that it is unnecessary, that there are witnesses present who can establish the fact, an action of assumpsit may be maintained’by tlie assignee against .the assignor, upon this parol guarantee.
    It is no objection to such an action, that no notice was given to the assignor of the failure of the mortgagor to pay the debt, or of the sale under the .mortgage; unless it appear that the assignor was prejudiced by want of notice, or could-have received any benefit from notice.
    The act of limitations does not begin to run against a parol guarantee of the sufficiency of a mortgage, given to secure a bond payable by instalments, and of the solvency of the mortgagor, until six years after the last instalment has become due.
    It is not an infraction of the law, for a person -holding the Pennsylvania title, to agree with a settler under a Connecticut title, for the surrender of his possession, . on paying to him a compensation for his improvements, buildings, and crop in the ground; and where the fact, whether the contract was for the purchase of flic possession and improvements, or of the title to the land, depends, as well upon other evidence, as upon writings, it is proper fo submit the question to the decision of the jury.
    Writ of error to the Court of Common Pleas of !Bradford county.
    
      Solomon Tracey, the defendant in error -and plaintiff below,
    brought this action of assumpsit to September Term, 1820, against Thomas Overton, the plaintiff in error, upon a parol guarantee of the solvency of one Robert Drew, and ’of the sufficiency of certain real estate to pay a debt for which it had been mortgaged by the said Robert Drew to the plaintiff in error, who had assigned the mortgage, togeiher with the bond to secure which it was given, to the said Tracey.
    
    The declaration contained three counts.
    The first count set forth, that in consideration that the said Tracey. would release and convey to the said Overton all his right, title, and possession to a farm in the township of Ulster, in the county of Bradford, and would receive in part payment therefor, a bond against the said Drew for fifteen hundred and ninety dollars, payable in seven annual instalments, commencing the 1st of November, 1810, accompanied by a mortgage executed the said Drew to the said Overton, on certain lands in the township of 
      Tun&hannock, county of Luzerne, be, the said Overton, on the 28th of December, 1808, undertook that the said bond and mortgage were good and collectable, and that the said Drew was then solvent and in good circumstances, and was fully able to pay the amount, when due: That the said Tracey, confiding in the said promises, did sell and convey all his right, title, interest, and possession to the said Overton, and received therefor, to wit, for the sum of fifteen hundred and ninety dollars, the aforesaid bond and mortgage. Nevertheless, &e. the said bond and mortgage were not good and collectable, and the said Drew was not solvent and in good circumstances, and able to make payment of the said bond as-it became due, &c.
    The second count stated, that in consideration that the said Over-ton was indebted to the said Tracey in the sum of fifteen hundred and ninety dollars for a certain other farm, &e., before that time sold and conveyed by the said Tracey to the said Overton, and that the said Tracey received in full payment from the said Over-ton, for the said sum of money, a certain other bond against Drew for fifteen hundred and ninety dollars, payable, &c., and a mortgage executed by the said .Drew-on certain lands, described as, &c., containing three hundred and ninety-seven and a half acres, the said Overton undertook that the'said bond and mortgage were good and collectable as the same should become due, and that the sgid Drew was solvent and possessed of a large property, and fully able to pay the amount of the said bond, and would pay the same as it should become due: That the said Tracey did accept the said bond and mortgage, in full satisfaction of the said sum due as aforesaid to him. Nevertheless, &c.
    The third count stated, that the said Tracey was possessed of a certain other farm, of the value of eight thousand dollars, situate, &c., and agreed to sell to the said Overton all his right, title, and interest in the same, and to deliver possession thereof to the said Overton, for a certain sum agreed upon between them, and in consideration that the said Tracey would accept in part payment thereof a certain bond of one Drew, dated, &c., for the payment of fifteen hundred and ninety dollars, payable, &c., and a mortgage on certain property described, &c., executed by the said Drew, the said Overton, undertook that the said Drew should pay the amount of the said bond as the same should become due, and if Drew should make default,' the said Overton would pay the same: That the said Tracey, confiding, &c., did sell and convey all his right, title, interest, &c., in the said farm, and delivered possession thereof tb the said Overton, and did accept in part payment of the sum agreed upon, the said bond and mortgage, at the full amount thereof. Nevertheless, &c.
    The defendant pleaded, non assumpsit and non assumpsit infra sex annos.
    
    In support of his case, the plaintiff offered in evidence the deposition of Constant Williams, taken under a commission 'to the state of Indiana.
    
    The counsel of the defendant objected to the reading of the answers to the second, third, fifth, sixth, and seventh interrogatories, on the ground that the questions put to the witness were leading questions. The court overruled the objection, and allowed the deposition to be given in evidence to the jury, upon which an exception was taken to their opinion.
    The interrogatories exhibited to the witness, and his answers to them, were as follows:
    1st Interrog. “ Do you know the parties in this suit, or either of them, and which of them, and how long have you known them?
    2d. “ Have you any knowledge of a bond and mortgage given by Robert Drew to Thomas Overton, the defendant in the above cause, and assigned by the said Thomas Overton to Solomon Tracey, the above named plaintiff? Look at the mortgage now shown to you, and the assignment made thereon; — Is the name Constant Williams, subscribed under the assignment appearing on the said mortgage, as a witness, — your signature? Did you see the said Thomas Overton execute the said assignment? Did you see the other person, whose name appears as a witness to the said assignment, subscribe his name thereto as a witness ?
    3d. “Did you see a bond, purporting to be executed by Robert Drew to the said Thomas Overton, assigned by the said Thomas Overton to the said Solomon Tracey? If yea, — were you a subscribing witness to such assignment, and was there any other subscribing witness to such assignment? If yea, — who was such subscribing wilness, and when and where was such assignment executed ?
    4th. “ Do you know whether any, and what consideration was given by the said Solomon Tracey to the said Thomas Overton, for the assignment of the said bond and mortgage? State freely your knowledge herein.
    5th. “Did the said Solomon Tracey, at the time of the assignment and delivery of the said bond and mortgage, by the said Thomas Overton, or at any other and what time, require from the said Thomas any guarantee, assurance, or promise, that the conditions and payments in the said bond and mortgage expressed, and specified to be performed, made, or done by the said Robert Drew, should be faithfully and punctually performed, made, and done by the said Robert Drew? Did the said Solomon Tracey refuse to accept from the said' Thomas Overton the assignment of the said bond and mortgage, unless the said Thomas should make some guarantee, assurance, or promise to the said Solomon that the said bond and mortgage should be punctually paid by the said Robert Drew? If yea, — what was the guarantee, assurance, or promise so required?
    6th. “Did the said Thomas Overton* at the time of the assignment of the said bond and mortgage to the said Solomon Tracey, or at any other and what time, make any promise, declaration, or guarantee to the said Solomon Tracey, that the amount of the said bond and mortgage of the said Robert Drew should be punctually paid? Did the said Thomas Overton make any promise to the said Solomon Tracey, that in case the said Robert Drew should make default in payment of the said bond and mortgage, that he, the said Thomas, would pay any thing to the said Solomon, or do or perform any thing for the benefit of the said Solomon? If yea, — state what was such promise, when made and where, and the circumstances fully.
    7. “Did the said Thomas, at the time of the assignment of the said bond and mortgage against Robert Drew, to the said Solomon, or at any other and what time, make any affirmation, declaration, or promise to the said Solomon, relative to the value of the land contained in the said mortgage, or relative to the solvency and ability of the said Robert Drew to pay the said bond and mortgage? if yea, — state fully what was such affirmation, declaration, or promise, when and where made, and the circumstances relating thereto.
    “Lastly, Do you know any other matter?’5
    Cross-interrogatories, on the part of the defendant.
    
    1st. “Do you know whether the mortgage now exhibited to you by the plaintiff, was the only mortgage assigned at that time by the defendant to the plaintiff? If not, — state what others, and to what amount.
    2d. “What amount of money was paid by the defendant to the plaintiff, and for what was it paid ?
    3d. “What was the whole amount which the defendant was to pay to the plaintiff, for the release to him of the farm referred to by you, and how, in what manner, and at what time was it paid ?
    4th. “ Repeat the exact words made use of by the defendant to the plaintiff, and how and in what manner they were used, and whether they were used at the time of executing the assignment or before. If before, — how long before? And whether such words were applied to the bond and mortgage shown to you, and to no others? If to any others, — to how many others? If only to the one now shown, how do you recollect this bond and mortgage, and could you have named it, if it had not been exhibited?”
    
      Rnswers ¿0 the interrogatories taken the 10ih of July, 1823.
    
      “Constant Williams, aged fifty-eight years, being first duly sworn, to the first interrogatory on the part of the plaintiff, answers that he knew the parties in this suit, and has known them ever since the year 1807, or upwards of sixteen years.
    “To the second interrogatory, that he has a knowledge of a bond and mortgage given by Robert Drew to Thomas Overton, the defendant in the above cause, and assigned by the said Thomas 
      
      Overton to Solomon Tracey, the above named plaintiff. The witness further answers, after looking at the mortgage and the assignment made thereon, and the name, that Constant Williams, subscribed under the assignment as a witness, is the signature of this deponent. The witness also states, that-he did see the said Thomas . Overton execute the said assignment. He also states that he saw Wanton Rice, whose name appears as a witness to the said assignment, subscribe his name thereto as a' witness.
    “To the third interrogatory, that he saw a bond, purporting to be executed by the said Robert Drew to the said Thomas Over-ton, assigned by the said Thomas to the said Solomon, and that he was a subscribing witness to the said assignment, — also Wanton Rice, — and that the said assignment was executed at the house of Solomon Tracey, in Old Sheshequin, Lycoming county, now Bradford county, state of Pennsylvania.
    
    “To the fourth interrogatory, that the consideration given by the said Solomon Tracey to the said Thomas Overton, for the assignment of the said bond and mortgage, was fifteen hundred and ninety dollars.
    
      “ To the fifth interrogatory, that the said Solomon Tracey did, at the time of the assignment and delivery of the said bond and mortgage by the said Thomas Overton, require from the said Thomas a guarantee and assurance, that the condition and payments in the said bond and mortgage expressed, and specified to be performed, made, or done by the said Robert Brew, should be faithfully and punctually performed, made, and done by the said Robert Brew. The guarantee and assurance of ThomasOverton to Solomon Tracey was, that in the event of Robert Brew failing to comply with the guarantee and assurance so as aforesaid named, that he, the said Thomas Overton, would be responsible for the performance of. the same to the said Solomon Tracey.
    
    “ To the sixth interrogatory, that he knows nothing further than he has already repeated in answer to the fourth and fifth interrogatories.
    “ To the seventh interrogatory, that the said Thomas Overton did, at the time of the said assignment of the said bond and mortgage against Robert Drew to the said Solomon Tracey state, that the value of the land contained in the said mortgage was worth double the amount for which the same was mortgaged. Thomas Overton at the same time represented to Solomon Tracey, that the said Robert Drew was in solvent circumstances, and able to pay the amount of the mortgage money, and, in the event of failure on the part of the said Robert Drew, that he, the said Thomas Overton, would be accountable to the said Solomon Tracey for the value contained in the said mortgage bond, amounting to the sum of fifteen hundred and ninety dollars; Tracey observed to Overton that the guarantee alluded to should be reduced to writing. Overton’s reply was, that it was unnecessary, as several witnesses were present, who could establish the fact,
    
      “To the first cross-interrogatory of the defendant, the witness answers: — The mortgage now exhibited to me by the plaintiff, was the only mortgage assigned at that time by the defendant to the plaintiff.
    “ To the second cross-interrogatory, that the amount of money paid by the defendant to the plaintiff, he thinks did not exceed twenty dollars, and that the said money was paid to bind the bargain of the farm alluded to.
    “To the third cross-interrogatory, that the whole amount which the defendant was to pay the plaintiff for the release to him of the farm referred to, was between twenty-four and twenty-six hundred dollars. I know of no payment being made, except the bond and mortgage, and not exceeding twenty dollars besides, at the time of the assignment and delivery of the bond to Solomon Tracey.
    
    “ To the fourth cross-interrogatory, that he is unable to repeat the exact words made use of by the defendant to the plaintiff, and that the conversation between the plaintiff and defendant, before and after the assignment, had an allusion to the mortgage and bond exhibited to the witness, by the plaintiff at this time. I well recollect the bond and mortgage, and could have named them, if they bad not been exhibited on this day to me; and further the witness cannot answer.”
    
      Ira Tracey, another witness on the part of the plaintiff, whose deposition was read in evidence, stated, that on or about the 28th of December, Solomon Tracey, the deponent’s father, and Thomas Overton, were about making a bargain, by which the said Tracey was to sell and convey to the said Overton, his farm in Ulster, on which th.e said Overton then resided, who agreed, as part payment of the purchase money, to assign to the said Tracey a bond and mortgage, given by Robert Drew to Overton, upon a tract of land in Tunkhannock township, Luzerne county: That, at the same time, Overton told Tracey, who had not seen the mortgaged land, that it was a valuable tract, and worth the money for which it was mortgaged: That, at any rate, Drew was able to pay the amount of the mortgage, and that he, Overton, would guaranty the amount of it, .and see that it was regularly paid, agreeably to the stipulations contained in the bond. This conversation took place, as the "deponent thought, on the day on which the said bond and mortgage were assigned by Overton to Tracey, and before or at the time of the assignment. The deponent further stated, that one or two days after the above-mentioned transaction, he was present at a conversation between the said Solomon Tracey, his mother, '4fehitable Tracey, and the said Thomas Overton, when the said Mehituble said to Overton, “I am afraid you have cheated my son, as you are a lawyer, and he is unacquainted with the law, and that you ha\e taken some advantage of him.” Upon which Over-ton replied, that he had not, and would .not, because he had made himself accountable for the debt, if Dreio did not pay it.
    
      The mortgage assigned by Overton to Tracey, was dated November 1st, 1808, and recited a bond conditioned for the payment of fifteen hundred and ninety dollars, in equal annual instalments, the.first of which became due on the 1st of November, 1810, and the last on the 1st of November, 1816.
    The assignment which was endorsed upon the bond and mortgage, was in these words, viz: — •
    “Know all men by these presents, that I, Thomas Overton, the within named mortgagee, for and in consideration of the sum of fifteen hundred and ninety dollars, paid to my satisfaction, have granted, bargained, and sold, assigned, and set over all my right, title, interest, claim, and demand, of, in, and to the said within indenture of mortgage, together with all the privileges therein contained, unto Solomon Tracey, of the samé place, yeoman. Witness my hand and seal, December 28th,. 1808.
    Witness, Thomas Overton. (Seal.)
    
      Wanton Rice, >
    
      Constant Williams.” 5
    The mortgaged premises were sold on the 7th of August, 1S19, under a levari facias, issued by Solomon Tracey, and purchased for fifty dollars by Tracey’s attorney.
    It appeared, from the testimony of William Keeler, that Robert Drew was a foreigner, in poor circumstances, who did not appear to possesá any other property than a yoke of oxen and a cart: That-the mortgaged premises were hill land, of which twenty or twenty-five acres were improved, and upon which a log house and a good barn were erected.
    The defendant then gave in evidence a receipt signed by Solomon Tracey, dated December 28th, 1808, by which he acknowledged to have received, in part payment of his farm, the said bond and mortgage from Robert Drew to Thomas Overton. He also gave in evidence a deed for part of the said farm, dated December 5th, 1787, from Jeremiah Shaw to Solomon Tracey, containing a covenant against the grantor himself, or any person claiming under Connecticut claimants. A deed for another part of the said farm, dated the 10th of May, 1792, from C. Bingham to Solomon Tracey, covenanting that the grantor was the true and lawful owner under the Susquehanna company. A deed for another part of the said farm, dated the 16th of October., 1796, from A. Brockace and J. Gore to Solomon Tracey, covenanting that they had a legal title under Connecticut, and a deed for another part of the said farm, dated the 29th of October, 1789, from Jedidiah Shaw to Solomon Tracey, containing a warranty against persons claiming under Comic: ticid. On each of these deeds was endorsed a deed poll, bearing date the 23'b of December, 180S, eonvéying all the right title, interest, claim, and demand of the said Solomon Tracey in the premises to the said Thomas Overton in fee. The aggregate amount of the consideration of the several conveyances, from Tracey to Overton, was two thousand eight hundred and eighty-five dollars.
    It was stated by a witness, that he had frequently heard Overton say, that he was the agent of »S'. M. Fox, at the time he purchased of Tracey: That Tracey would not purchase the Pennsylvania title, and therefore he purchased it, and then bought Tracey out; and a deed, dated the 1st of October, 1809, from S. M. Fox to Thomas Overton, was given in evidence.
    When the evidence was closed, the defendant’s counsel requested the court to charge the jury,—
    1. “ That the receipt dated the 2Sth of December, 180S, and witnessed by Williams and Rice, is to be regarded as the written contract of the parties; that if the jury believe this paper was executed subsequently to the conversation alluded to by Williams in his deposition, in such case the written contract would be the contract between the parties, and the jury should not suffer the parol evidence to vary it.
    2d. “ That if any guarantee was made, the plaintiff must show such a contract as is laid in the declaration; and that, to recover under such a contract, he must prove that he has proceeded upon the bond; and that he could recover nothing at the time the in-stalments became due, or at any rate previous to bringing this suit; that the sale upon the mortgage could not affect the rights of the defendant, without notice of the suit and sale, which is not proved; which sale, without such notice, is evidence of fraud upon the part of the plaintiff, inasmuch as he might and did, by means of his attorney, purchase the same at a low price; that notice should have been given to the defendant of the failure of Drew to pay each in-stalment.
    3d. “ That under the contract, as laid in the declaration, the statute of limitations would commence at the time of the assumption; and, if not then, it would operate, as to each instalment, from the time each became due.
    4th. “ That this is an action of assumpsit, and the plaintiff can only recover under the guarantee; and that the allegations of the defendant having declared that Drew was solvent and in good circumstances, would be the foundation of an action of deceit, if he were not solvent, &c.; but that, under such allegations, even if proved, he could not recover in the present action.
    5th. “ That there is no evidence before the jury, to show that Drew is not at this time in good circumstances, and able to pay the bond.
    
      6th. “ That if the jury believe, that the contract between Tracey and Overton was for the sale and purchase of a title and possession under the state of Connecticut, he land not lying within either of the old seventeen townships of Luzerne, such contract, at common law, and under the laws of Pennsylvania, existing at the time of such contract made, would be absolutely void; and that the plaintiff cannot recover. That even if the defendant^ at such time, was acting in the capacity of agent of Mr. Fox, the Pennsylvania owner, it would not alter the nature of the contract; particularly if Mr. Overton purchased the property for himself.
    7th. That the title of Tracey having failed to this property, Samuel Fox having been the real owner under the state of Pennsylvania, which last title the defendant afterwards purchased, such "failure would'be a good defence to the present action.
    “ That the assignments on the back of Tracey's deeds would refer to the title mentioned in them, and that it is the province of the court to construe such assignments, and the title under them.”
    The charge of the court was as follows:.—
    “ This is an action, brought by the plaintiff against the defendant, to recover the amount of the Drew mortgage, with interest, which was assigned by Overton to Tracey, in part payment of the farm sold by the latter to the former, lying in Old Sheshequin.
    “It is alleged by the plaintiff, that, at the time of the bargain and assignment of the mortgage, the plaintiff was ignorant of the land, or its value contained in the mortgage, and also with Drew, and his circumstances; and that at that time Overton stated to him, that the land was worth double the amount of the money received, that Drew was able to pay that sum, and that he would, guaranty the payment.
    “ 1st. It is a general rule of law, that all conversations, agreements, and negotiations between parties are done away by their written agreements, and that the writings are not to be varied by parol, unless the parol declarations were made at the time of executing the writings, or by agreements made subsequent thereto. It seems, that the receipt, the assignment of the mortgage, and the deed from Tracey, are dated the 28th of December, 1808; and it is fair to presume they were made at the same time.
    “2d. If the jury believe,,from the depositions, of Williams and Tracey, that the defendant made the statements and guarantee mentioned by them, at the time of executing the writings, and that the money could not be made out of the mortgaged premises or of Drew, the plaintiff might recover in this suit without having proceeded on the bond. And if, in endeavouring to collect the money by proceedings on the mortgage, his conduct was fair and bona-fide, he was not bound to give notice to the defendant of such proceedings, and might cause the premises to be sold and purchase them in himself; and, particularly, as the plaintiff has offered here in court, to make the same title to Overton for two hundred and fifty dollars, or consent that the jury may deduct that sum from the amount, if they find for him,
    “ 3d. The plaintiff was not bound by the statute of limitations, until six years after the whole amount of the mortgage money became due.
    “4th. If the money could not be made from the mortgage, and if the defendant made the guarantee alleged, with the evidence of William Keeler, that about the time of the assignment he was acquainted with Drew, and that he had no other property than a yoke of oxen and a cart, as he knew of, — the plaintiff may recover without .having taken any legal steps against Drew, and without showing any thing further about him.
    “ 5th. William Keeler s testimony is all the evidence upon this point
    “ 6th. If the jury believe, that the contract between Tracey and Overton was for the sale and purchase of the Connecticut title to the Sheshequin farm, then the contract would be void, and the plaintiff could not recover; but if the jury believe that the contract and sale of the farm were for the possession and valuable improvements of Tracey only, then the plaintiff is entitled to recover.
    “ 7th. If Tracey sold to Overton what they considered the title to the land, when the real title was in Fox, which the defendant had subsequently to purchase, it is a good defence to this action; but if Overton was the agent of Fox, acquainted with Fox's Pennsylvania title to this farm, and contracted with Tracey for his improvements only, the assignment by Tracey of his right on the back of the Connecticut deeds ought not to prevent a recovery, and it would be against justice and a good conscience for the defendant to obtain possession of Tracey's valuable improvements, and then protect himself behind the Connecticut title, when neither party considered that title in their contract.”
    To this opinion the counsel for the defendant tendered a bill of exceptions, which was sealed by the court.
    
      Conyngham and Dennison, for the plaintiff in error.
    1. In suffering to be read in evidence the answers of Constant Williams to the second, third, fifíh, sixth, and seventh interrogatories, the court below was wrong. They were leading questions, which directed the witness to the answers he was to give, and, in fact, he did answer in the words of the interrogatories. In equity, where interrogatories are of a leading nature, the answers to them are suppressed upon application to the Master. 2 Madd.Ch. 412. The party injured must have some opportunity of redress against leading interrogatories, and with us no other opportunity presents itself than at the trial. The practice has been to make the objection at the trial, and this practice is supported by authority. 3 Am. Dig. 227. 3 LitteVs Sep.' 77. 1 Yeates, 404. 6 Binn. 489, 490. In Shuler v. Spear, 3 Binn. 133, it was held, that a party who is present, and cross-examines, cannot object to leading questions on the trial; but there is an obvious distinction between answers to interrogatories on a commission, and those which are given on the taking of a deposition, where the parties are present and put their questions in person. If the objection cannot be made at the trial, the evil is without remedy.
    2. The court erred in charging the jury, under the first point, that the writings were not to he varied by parol, unless the parol declarations were made at the time of executing the writings; and, under the second point, that if the jury believed, from the depositions of Williams and Tracey, that the defendant made the statements, and gave the guarantee' mentioned by them, at the time of executing, &c., the plaintiff might recover. This was laying down the law too broadly. If the ease had been submitted to the jury on a question of fraud, there would have been no cause of complaint. But no fraud was alleged in the execution of these writings; and the court submitted the case to the jury upon the broad ground, that any parol declarations made at the time of their execution, would control the writings. The admission of parol evidence is confined to cases of fraud, mistake, or the omission of the scrivener to insert what the parties intended should be,introduced into the writing. Christ v. Diffenbach, 1 Serg. & Rawle, 464. Heagy v. Umberger, 10 Serg. & Rawle, 339. The case of Mumford v. her son, 1 Johns. 415, is in point. A ship was sold by bill of sale in writing; and the court refused to admit evidence to prove a parol guarantee, at the time of executing the bill of sale. The circumstance of no exception having been taken to the evidence before it was given, is no reason why it should not afterwards be taken. We had bur choice, either to except to it or let it go to the jury, and pray the court’s opinion on its effect.
    3. There was error in the charge, under the second point, that it was not necessary for the plaintiff below to give notice to the defendant, of the failure of Drew to pay the instalments as they became due upon the bond. Gibbs v. Cannon, 9 Serg. & Rawle, 200. If the defendant had received notice of the nonpayment of the different instalments, he might perhaps have saved himself.
    4. It was an erroneous qpinion, that if Drew was insolvent at the time, of the assignment^ and the money could not be recovered on the mortgage, the plaintiff might recover," without having brought an action against Drew.
    
    5. The court below erred in instructing the jury, under the third point, that the plcintiff was not bound by the act of limitations until six years after the whole amount of the mortgage money became due.- The guarantee laid in the declaration, was not of the mortgage, but of the bond; that the several instalments should be paid as they fell due. The act of limitations began to run from these periods respectively, if not from the time of the assumption.
    6. The court left the construction of written instruments to the jury. The only evidence of Overton's purchase from Tracey, was contained in these writings, which showed that the subject of the conveyance was a Connecticut title, the purchase and sale of which are expressly forbidden by act of assembly. The act of the 11th of April, 1795, (3 Sm. L. 209, sect. 1,) severely punishes all intrusions, under any pretended title not derived from Pennsylvania■; and the territorial act of the 16th of April, 1802, Í3 Sm. L. 525, sect. 4,) renders utterly void all contracts in relation to Connecticut titles. One who enters under Connecticut, acquires no title either in law or equity. No action, therefore, is maintainable upon a bond given for the purchase money, on the sale of a Connecticut title. Mitchell v. Smith, 1 Binn. 110. The object, of the act of the 6th of April, 1802, was to cut up these pretended titles by the roots. Irish v.Scovil, 6 Binn. 55. It did not appear that Overton held the Pennsylvania, title. The only evidence on the subject, was his own declaration; and, at one time, he stated that he had purchased the land from Fox, and, at another, that he was the agent of Fox when he purchased from Tracey. But if he bad the Pennsylvania title, it is against the policy of the law that a Pennsylvanian should purchase a Connecticut title. Upon the same principle, one who settles under a Connecticut title, is estopped from saying that he claims under Pennsylvania. Bailey v. Avery, 4 Serg. & Rawle, 2S1. The possession of the good title does not purge the illegality of the purchase of that which is prohibited. There being no other evidence of this transaction than that which the writings contained, the court should have instructed the jury positively on the subject, and not have left it for them to decide whether the contract was for the sale of the land, or of the improvements only.
    
      Kenny and Williston, for the defendant in error.
    1. The interrogatories objected to as leading, are not of that character. To the sixth, which has the greatest appearance of being so, the witness answered nothing. But, if they were so, the objection comes too late. Leading questions should be objected to at the time of taking the deposition of a witness. Strickler v. Todd, 10 Serg. & Rawle, 73. This commission was executed at a great distance, and at great expense, and if there was any objection to the interrogatories, it ought to have been made before filing the cross-interrogatories, or at the next court. To wait until the trial is unreasonable.
    2. Parol declarations, made at the time of executing a writing, have uniformly been admitted, in cases of fraud and where equity required that they should be received. ' This is precisely such a a case. Tracey was tricked into the execution of his deed by the assurances of Overton, that Brew was a man of property, and the mortgage good security, and that he would guaranty it. There was nothing in the evidence inconsistent with the deed, and the propriety of admitting it is fully supported by authority. Field v. Biddle, 2 Ball. 171. Christ v. Bijfenbach, 1 Serg. & Rawle, 464,465. 1 Phil. Ev. 483. Lessee of Binhle v. Marshall, 3 Binn. 
      587. Drum v. Simpson, 6 Binn. 478. Besides, no objection was made to the evidence, and it is not error to admit that to which no exception has been taken. M‘Cullough v. Elder’s Executors, 8 Serg. & Ramie, 181.
    3. Notice of the nonpayment of the instalments as they become due upon the bond was not necessary. It was not negotiable paper, in relation to which notice is required by the custom of merchants. Overton guarantied the bond, and it was his business to see that it was paid. It was proved, that Drew was insolvent at the time the assignment was made of his bond and mortgage. As to the notice of the sale under the mortgage, we offered, and now offer again, to convey to Overton the land purchased at sheriff’s sale, for two hundred and fifty dollars, which is no more than what it cost, including the expense of the suit against Drew, and in fact the jury did deduct that sum from our demand.
    4. The act of limitations could not begin to run until one year after the last instalment became due, because until that time no proceedings could be had on the mortgage; and until the land was sold under the mortgage, it could not be ascertained whether or not the security was sufficient. [The Coukt told the counsel, that it was unnecessary to speak further to this point]
    5. When Tracey purchased the Connecticut title in 1789, there was no act of assembly prohibiting such purchases. His entry was lawful, and he made valuable improvements on the land. Whether
    .he sold these improvements or the land itself, was-a fact which depended, not upon papers alone,- but upon other evidence also. This evidence did not contradict the writing, and the whole was properly submitted to the decision of the jury, whose verdict negatives the sale of the Connecticut title. There was nothing in this transaction prohibited by law. The design of the territorial act of the 6th of Jipril, 1802, was to extinguish all titles under Connecting, by prohibiting and rendering void all contracts in relation to them. But it was never intended to prevent a Pennsylvania claimant-from making a compensation to the Connecticut settler for his time, labour, and money expended in making improvements. In the present transaction, there was no sale of the title. It was -no more than a surrender of the possession to a Pennsylvanian, whose title was good, on receiving a reasonable allowance for improvements. In this respect, this case differs from that of Smith v. Mitchell, 1 Binn. 110.
   The opinion of the court was delivered by

BxracAN, J.

The several questions raised on this record are important,-and have received all the consideration their importance demands.' It was an action of assumpsit, on a parol guarantee of the solvency of the debtor, and the adequacy of the lands mortgaged to pay the mortgage money. -The assignments of the bond and mortgage were made under seal, and in the presence of two witnesses, and contained no covenant except tbe one implied by the words, “assigned and set over,” which would not reach the solvency of the debtor or the sufficiency of the estate mortgaged. The only real matter in controversy is, whether the action could be sustained upon the parol agreement to warrant, and the lawfulness of the consideration of the promise. Other incidental matters arose on the trial, which have given rise to several exceptions, which will be considered in their order.

The first error assigned, is in the admission of the answers of Constant Williams to certain interrogatories exhibited by the plaintiff below, the defendant in error, on account of their leading character. Some of these interrogatories had a leading cast, and might, in a certain shape, have been excepted to; but the defendant below joined in the eqmmission, and exhibited his cross-interrogatories to the witness, on the same questions which he now complains of as leading. In chancery, on a return of the commission and publication, if a party neglect to move for a suppression on this ground, he is too late to object on the hearing. Here, having joined in the commission and interrogated on the same questions, I think that he is too late with this exception on the trial. I can see no reason to distinguish this from Sheeler v. Speer, 3 Binn. 133, where it was decided, that a party present, and cross-examining, cannot object .to leading questions in the deposition, on the trial. It is as much a waiver, as permitting the question to be answered without objection. It is something more than a treacherous silence, which would be acquiescence. It is a positive waiver. I must confess, I am not disposed to lend a ready ear to objections kept in reserve, until it is too late for a party to remove them. It is a snare into which his opponent has led him, and ought not to avail him. In Jones v. Lucas, 1 Rand. 368, this very point was decided. It was there held, that where a deposition is introduced on a trial at law, regularly taken on a commission, and an objection is made to some of the questions as leading ones, the court cannot suppress these questions and answers, after the jury is sworn; but the objection should be made before the jury is sworn, and the exceptionable questions and answers suppressed..

The second error assigned, is to the charge of the court, and brings out the question, as to an assignee sustaining such an action on a parol guarantee, where the written assignment contains no such covenant. The objection was not made to the competency of the evidence, as being by parol, to contradict or add to a written agreement, but to its operation when received. The defendant below made no objection to this medium of proof as be ought to have done, but I am willing to allow.' him the full benefit of the exception; and my opinion is, that the evidence was competent, and, if believed, sufficient to charge him in this form of action.

The evidence was, that Overton represented to Traeey, that tbe value of the lands in mortgage was double the sum for which they were mortgaged, and that Dreio, the mortgagor, was in solvent circumstances, and able to pay the amount of the mortgage money; and, in the event of a failure on Drew’s part, he would be accountable for the value contained in the mortgage and bond, amounting to the sum of fifteen hundred and ninety dollars: That Tracey observed to Overton, that this guarantee should be reduced to writing; to which Overton replied, it was unnecessary, that some witnesses were present who could establish the fact; and that the defendant never was in solvent circumstances, and the property was totally inadequate; that it had been sold on the mortgage, and did not bring more than one-tenth of the debt, and the purchaser at sheriff’s sale offered to let Overton have it back on the térms he had bought it.”

Had this been an assignment, expressed to be without recourse, it would have presented a different question, for then the writing would have shown that all recourse was excluded. But the evidence was of a thing, not in terms contradictory of the deed, but explaining what was intended by the assignment, and that the pro-, .vision for recourse was particularly stipulated, which was not inserted by the fraud of Overton; for a fraud it would be in Overton, if Tracey insisted on the. stipulation being inserted in the instrument, and it was omitted by the persuasion of Overton, for him now to avail himself of an omission, of which he was the cause. There is nothing in the instrument inconsistent with this guarantee. So far from this, the courts of Virginia hold, that the as-signee of a bond, without any express agreement on the part of the assignor, having used due diligence to secure tbe money, has an implied right to recover by action of assumpsit, against the assignor, unless there be an agreement to the contrary, or special circumstances, to show that it was not so intended by the parties at the time of the assignment. The assignment, as they hold, importing, itself, a debt due from the assignor, the right not being given by the act of assembly authorizing the assignment, but existing at the common law; so that unless there is an express stipulation, or something to show the contrary to have been the intention of the parties, the assignor is liable by operation of law. McLean’s Executors v. Davis, 2 Wash. 219. Goodwin v. Sterrett, 2 Hen. & Munf. 189. This, however, is not so considered with us, and is only cited to show, that the stipulation to guaranty, is not inconsistent with the assumpsit, though an implied assump-sit would not arise by operation of law.

It is not my intention to attempt to reconcile all the decisions on this head of evidence. This would be a difficult task to afccom-plish, pnd beyond my powers. It does not, however, follow, that because parol evidence in this ease may be admitted, if is therefore admissible in all. But it may be confidently said, that decisions have established the principle, that relief may be granted against deeds on the ground of fraud, mistake, oppression, or imposition. The general principle is, that parol evidence, where there is a deed, is not to be admitted in all cases, nor is it to be refused in all. Each must depend on its own circumstances. Where fraud intervenes, there the evidence may be introduced. If it was admitted in all, justice would be subverted. If it was refused in cases of imposition, fraud would be protected. It is one of the most important offices of a court of chancery, and in which it is much employed, to correct mistakes and fraudulent omissions in deeds. The courts do not vary the deed, but if there be a frudulent omission, it is an equity dehoi's the deed; and when a court of chancery cannot satisfy itself of the fact, an issue may be directed to try the question, as was done in The South Sea Co. v. Dagliffe, 2 Ves. 377. Dagliffe agreed not to carry goods, under certain circumstances. If information was given in two months after his return home that he had done so, then he was to pay certain damages. The instrument was not drawn up, until on board the ship and in a great hurry, and then executed by Dagliffe. When he got out to sea and read it over, he found it was six months instead of two, and brought a bill to be relieved against that variance in the instrument, the company having brought an action on it. Lord King.sent it to an issue, and it was tried on the question, whether it was the original agreement, that it should be two instead of six months: a verdict was given in favour of the plaintiff, that it was designed to be in two months; and, in consequence of this, Lord Talbot made a decree to relieve the plaintiff against any difficulty by the variation. Undoubtedly there will be found a hesitancy in admitting parol evidence to correct agreements and mistakes, and it ought to be strong and irrefragable evidence; but fraud, in equity, is an exception to every rule; and if the bill in chancery states, that the clause intended to be inserted was suppressed by fraud, chancery never refuses relief on a fraud made out. The only difficulty is in deciding, what should be deemed fraud. If one of the contracting parties insists on a certain stipulation, and desires it may be made a part of the written agreement, and the other by his promise to conform to it, as if it was inserted in the written instrument, prevents its insertion, this is a fraud, and chancery will enforce the agreement as if the stipulation had been inserted. Having no court of chancery, our common law courts have constantly acted upon this principle, from Thomson v. White, 1 Dall. 424, to Christ v. Diffenbach,1 Serg. & Rawle, 464, in a succession of decisions varying in their circumstances, but all bottomed upon this principle. It is laid down, in a work of acknowledged authority, (Sugden on Vendors, 128.) that if the parties object to a conveyance, on account of a term of the agreement being omitted, and the party promise to rectify it, whereupon the deed is executed, a specific performance of the promise will be enforced. And this form of action is, with us, in nature of a bill in equity, to compel the specific performance of a promise. Here the promise was to make good the mortgage; to make it available; bring the money; or, in the words of the witness, collectable. In the main, this was the charge of the court, and it is free from the imputation of error. '

The charge on the second point is likewise free from error. It was not necessary for Tracey to give notice to Overton of the' failure of Drew to pay the instalments. It has no relation to notice of nonpayment, in order to charge the indorser of negotiable paper. The interests of commerce require that this should be strictly done; but, in this case, it was the business of Overton to look to the ability pf Drew to pay the debt. The proof was, that Drew was never able to pay any thing, as he never had any thing but a yoke of oxen and a cart, and the land was poor and sterile. He should have well known his capacity, when he entered into this voluntary warranty and induced Tracey, on his representations, to take the assignment of the debt. His promise was, that the land should bring the money, or, if it did not, he would be accountable for it. In all cases of this kind the rule is plain, if the guarantee proceeds fairly in his prosecution to recover the debt, if he has given notice to the voucher, the record of this proceeding-is conclusive. If he does .not give notice, it is incumbent on him, on the trial to prove, that he pursued the original debtor with all good faith, ánd that he failed, not by his own negligence, but because the debtor was never in such a situation that he could probably recover from him. The principle is stated, in Gibbs v. Cannon, 9 Serg. & Rawle, 201, to be, that the guarantor of a note does not stand in the same situation as parties to the note. It is not like an action on the indorsement. It is in the nature of an insurance of the debt, and there is no need of the same proof to charge him, as there is an indorser.- It is sufficient for him to show that he could not have obtained the money, by making the demand. The necessity of a demand, in order to charge the in-dorser of a bill is solely founded on the custom of merchants, and it only applies to actions on the indorsement, which is an action on the bill itself, and does not apply to any case where the guarantor is not an indorser, and the action not on the indorsement. It would follow, from this principle, that the guarantee might recover in this case, on his agreement as to the solvency of Drew, and the adequacy of the mortgaged premises, and that without notice of the nonpayment of the instalments, as they become due, unless indeed it had been proved, which was not pretended, that Overton had received prejudice from the want of notice, or could have received benefit from notice. The poverty of Drew was proved, his inability to pay was not contradicted by any witness, nor was it proved that the land had grown more sterile, or was deteriorated by Drew. Overton assumed to pay, if Drew did not; and, if the money could not be raised by a sale of the land, he ought to have taken notice. It was necessary neither to allege, nor to prove it. 5 Com. Dig. 53. Cro.Jac 68. It is a duty which the law enjoins on such guarantor, to see that the debt is paid. King v. Balawin, 2 Johns. Ch. 559.

This answers the fourth assignment of error. He was not bound to bring an action on each instalment as it became due, because it would have been a fruitless act, and because Overton guarantied that the mortgaged lands should bring the debt on a sale under the mortgage. Neither party, it would seem, looked to the solvency of Drew, but to the solvency of the land, — that the money should be collectable from the land.

The fifth, specification is, that the court erred in the opinion, that the plaintiff was not bound by the statute of limitations until six years after the last instalment became due. If this had been an action of deceit on Overton's false representation, the opinion would have been erroneous; but it was on his assumption with respect to the security of the mortgage being an available one. . Tracey could not proceed to sue on the mortgage until one year after the last instalment became due. Until the property was sold, it could not be known but that it would be available. The deficiency could no otherwise be ascertained. The cause of action did not accrue until that was ascertained, and until the cause of action accrued, the statute would not begin to run. The proper plea, in such case, would not be non assumpsit infra sex annos; but ■causa actionis non accrevit infra sex annos.

The sixth point. If this had been the assignment of the bond and moitgage, in consideration of the sale and conveyance of a title under Connecticut, to one not holding or representing the Pennsylvania title, the consideration would have been illegal, and no action would have grown out of it. It is a matter in which the Pennsylvania legal owner must rejoice equally with the Connecticut pretender, that this bone of contention no longer exists. It had distracted the state for nearly forty years. It had nearly-caused a civil war. Some valuable lives were lost in the contest. It is now happily settled, I must say with great sacrifice of the Pennsylvania rights; but it is settled, and I shall regret to see its remembrance kept alive by a construction which would do no credit to the Pennsylvania claimant, for the plea is a most ungracious one; but ungracious as it may be, still, if the contract falls within the letter and policy of the acts protecting the sale and transfer of Connecticut titles, it must be sustained. The act of the 11th of April, 1795. 3 Sm. L. 209, is for the punishment of intruders under the Connecticut pretensions, and persons combining and conspiring for the purpose of conveying, possessing, or settling within the limits of Pennsylvania, under such titles. This transaction cannot fall under this act. It savoured not of an intrusion under the Connecticut title, nor was it a combining for conveying, possessing, or settling under such title, but was the-very reverse; the surrender up and extinction of that title. The act on which the plaintiff in error relies, is the act of the 6th of April, 1802, 3 Sm. L. 525 If we look to the objects of the legislature, as they appear in the title and are stated in the preamble to that act, they prove any thing else than an intention of the legislature to prevent the holder of the Pennsylvania title from settling down on his land, peaceably obtaining a surrender of the possession of the Connecticut intruder. It is entitled, au act to maintain the territorial rights of the state, and to protect the property of persons holding lands under the same;” and the preamble states, that “certain persons, under pretence £f titles derived from Connecticut, have endeavoured by improper pretences, to ,defame the titles of persons holding lands by grant from this state, &c., in order to counteract such practices, and preserve the just rights of the state,” it enacts that no conveyance of lands within the counties of Luzerne, Lycoming, and Wayne, shall pass any estate, where the title is not derived from this state, and inflicts a penalty on any judge or justice for receiving proof of, or recorder for recording a deed of that description, and forbids every one interested in a Connecticut title, from sitting as a judge or juror in any case where such title may come in question; and it lastly provides, that every person settling, or purchasing, or in any manner contracting for land under the Connecticut title, shall forfeit two hundred dollars. The object of this act was to maintain the territorial rights, of the stale, protect the property of persons holding under the state, and cut up the Connecticut titles by the roots. But I am far from considering it to be an infraction of that law, for a Pennsylvania holder to agree with a settler under' the Connecticut title to surrender the possession to him, the.rightful owner. The improvements, buildings, and crop in the ground might be worth more than the sum given for the surrender. There was nothing in a moral or legal point of view vicious in the Pennsylvania rightful owner, agreeing to pay the Connecticut man for his labour of many years on his lands, however unlawful his original entry may have been, nor in the Connecticut man abandoning that, which, at one time, he might have conscientiously settled, under the belief that the Connecticut title was valid. Though it must be admitted, after the decree made at Trenton, to have been a most extraordinary delusion, yet I will not say, that such infatuation was impossible. Nor can I perceive any thing in the transaction against the letter, spirit, or policy of any act of assembly, forbidding the Connecticut settler, saving to the Pennsylvania landholder, t£ I am sick of this strife, I am not willing longer to hold out against your title and the laws of this state; pay me the value of my permanent improvements, my buildings, and my crop in the ground; I will move off; I will go further into the wilderness, and acquire a lawful and rightful possession.” There is nothing in an agreement founded on these considerations for-bidden by any law. Nor for l.he legal owner to say, Surrender your possession, and I will pay you for the labour you have spent upon my land; go away in peace, arid I will pay you for your crop.” If this was all, there would be nothing forbidden. It cannot render it vicious, because the Connecticut man surrenders with his improvements, every vestige of claim, every worthless rag of conveyance. There is so much natural justice in this, it so much tends to accomplish that which the state had at heart, for which she sacrificed so much, the establishment of peace in her borders, th^t I shall be sorry t.o find in the pages of any of her laws a provision of this kind, which would ever subject the holder of the Pennsylvania title to a forfeiture of two hundred dollars for doing that which his interest and conscience dictated to him, by a correct, beneficial, pure, and proper arrangement, consistent with the true policy of the laws against these intruders, and the' true interest of the commonwealth.

This was not a matter of law, depending upon the legal construction of the writing alone. Facts dehors the deed were to be. considered, before it could be pronounced whether the parties to the contract transgressed any law. To do this, it was necessary to ascertain the situation of the parties, and there the jury were properly instructed by the court, that if they found that Overton represented, or was in truth the owner of the Pennsylvania title, and Tracey, who had made permanent and valuable improvements under the Connecticut title, contracted for the surrender of these to the rightful owner of the soil, and that this, and not the Connecticut title, was the consideration for the assignment of Drew’s bond and mortgage, then the plaintiff was entitled to recover. The jury would judge, from the amount of the consideration, whether it was the value of a fee simple title, or merely a compensation for improvements. There was evidence to show, that it was the surrender of the possession and improvements to the Pennsylvania right that was the consideration of the assignment, and. not an act hostile to the sovereignty of the state, or her territorial rights, or defaming the title of persons holding by grant from the state; but a submission to the state and her laws, by. a surrender of all hostile pretensions; not receiving compensation or allowance for the soil, supposing it to be in Tracey, but a compensation agreed to be made by him who was to be benefited by them, for the substantial improvements made on his land, to him who made them.

The plaintiff in error has failed in sustaining any of his exceptions, either to the evidence or the opinion of the court, and the judgment stands affirmed.

Judgment affirmed.  