
    [Lancaster
    November, 15, 1827.]
    MARTIN and another against KAFFROTH.
    IN ERROR.
    A pai’ty lias a right to take a second deposition of the same witness, without leave of the court or cause shown- But the court can prevent the abuse of such right.
    Where in an action on a bond, against A. and B., evidence was given tending to show that the bond was given'to indemnify the plaintiff against liability as the indorser of a note discounted for the benefit of A., B., and C., against whom a judgment was confessed by A. and B. in the name of the firm, held, that the record of such judgment is competent evidence for the defendants, without having previously proved a partnership between A. B. and C.
    And a paper not under seal, purporting to be a release of such judgment, may be given in evidence to the jury, under the plea of payment, with leave, &c. The declarations of a pai’tner, not a party to the suit, are not competent evidence of a partnership.
    On the return of a writ of error from the court of Common Pleas of Lancaster county, accompanied by five bills of exceptions to evidence, it appeared, that on the 26th of April, 1821, judgment was entered in the court below in favour of Jacob Kaffroth, the defendant in error, against Jacob Martin and George Kuss, the plaintiffs in error, by virtue of a warrant of attorney, accompanying a bond dated the 18th of March, 1807, conditioned for the payment of three hundred and seventy-five pounds by the latter to the former, on the 20th of May, 1807.
    On motion this judgment was opened by the court, and the defendant let into a defence; whereupon they pleaded payment with leave, &c., and a release, to which the plaintiffs replied no release, and no release in this suit.
    
      First Bill of Exceptions. — After the plaintiff had gone through his case, the defendants offered in evidence the deposition of Charles Smith, esq., taken on the 8th of January, 1825, which had been filed in the prothonotary’s office, previous to the trial. It appeared that the deposition of Mr. Smith had been previously taken on a five days’ rule, on the 19th of March, 1822, and read in evidence on the motion to open the judgment; and further, that on the 15th of December, 1824, a rule for a commission to Baltimore, for the examination of Mr. Smith, was entered, and notice given to the plaintiff’s attorney, but nothing further was done towards prosecuting the commission. On these grounds, the plaintiff’s counsel objected to the admission of the deposition, and the court rejected it, upon which an exception was taken to their opinion.
    
      Second Bill of Exceptions. — The deposition of Mr. Smith, taken on the 19th of March, 1822, as mentioned in the preceding bill, was then offered on the part of the defendants, and objected to on the part of the plaintiff because it had not been filed, and marked filed, agreeably to an existing rule of court. The objection was sustained by the court, and another bill of exceptions tendered and sealed.
    
      Third Bill of Exceptions. — It was proved by the defendants that several executions were at the same time, and by the same attorney, placed in the hands of the sheriff of Lancaster county, all returnable to Jipril Term, 1808. In one of these executions Jacob Kaffroth was plaintiff. The defendants were Martin and Keiss. The sheriff went to the store of the defendants and made a levy. Kaffroth afterwards went to the sheriff’s office in company with John Gundaker, the plaintiff in one of the executions, together with the plaintiffs in the other executions, and wished him to deliver the goods levied upon, into the hands of-Gundaker. Kaffroth did not say that he had any other claim than that for which execution had issued, though he knew that the sheriff had levied on all the effects of the firm of Martin, Keiss, and Co. The money arising from the sale of the property in the hands of Gundaker, was distributed on the 5th of September, 1818, among these judgment creditors, by Charles Smith and George B. Porter, esq., and Kaffroth received his proportion.
    About the middle of March, 1807, Jacob Kaffroth showed to a witness a judgment bond signed by Martin and Keiss, and some years afterwards he stated to the same witness that he had another bond from the same person, entered and recorded in the register’s office. On being asked the reason, he replied that he thought the last better than the first. He stated that he had been an indorser in the bank at Lancaster, for one thousand dollars, and both these bonds were given to secure this indorsement. Sometime after-wards he told the witness that Martin and Keiss had failed; that their goods were taken by the sheriff, and afterwards sold by consent at auction, when he drew a proportion with the rest of the indorsers, and that Keiss had gone to Philadelphia, and compounded with the merchants, and that he and the other indorsers had considered that if he could compromise with the merchants, they would give him a release, which they had done and signed. He stated to Keiss, in the presence of the witness, that although he was dissatisfied with Martin, he was perfectly satisfied with him, and would not look to him any more.
    After the facts above stated had been proved, the defendants offered in evidence the certificate of the cashier of the branch bank, showing that Martin and Keiss’s note for one thousand dollars, indorsed by Jacob Kaffroth, had been discounted in that bank on the 12th of February, 1806, and renewed from time to time until the 1st of June, 1808, when it was protested; and that on the following day it was paid by Jacob Kaffroth. This evidence was objected to, not because it was offered in the shape of a certificate, but because it was upon other grounds incompetent. It was, however, rejected by the eourt-, to whose opinion an exception was taken.
    The defendants then offered in evidence a copy of a record of a judgment for twelve hundred dollars, entered in the Court of Common Pleas of Lancaster county, on the 27th of JLpril, 1808, in an amicable action of debt, in which Jacob Kaffroth was plaintiff, and Jacob Martin, George Keiss, and John Morris, co-partners in trade, were defendants. They at the same time offered copies of judgments entered in the several amicable actions in the same court, the same day, against the same defendants. They at the same time offered copies of judgments for different amounts, entered in several amicable actions of debt on the same day, in the same court against the same defendants, in which John Gundaker, Jldam Reigart, Christopher Brenner, and JLbraham Brenner, were respectively plaintiffs. The confession of judgment in all these cases was signed by Jacob Martin and George Keiss, “For Martin, Keiss, and Morris.” The evidence being objected to by the plaintiff’s counsel, was rejected by the court, who sealed another bill of exceptions.
    
      Fourth Bill of Exceptions. The defendants then offered to prove declarations and acknowledgments by John Morris, that he was a partner of the firm of Martin, Morris, and Co.; that Morrissent to Philadelphia, and opened and kept store there, and that the other two partners, at the same time, kept store in Lancaster. In connexion with this offer, they again offered a copy of the judgments mentioned in the preceding bill of exceptions. The court rejected the evidence, and exception was again taken.
    
      Fifth Bill of Exceptions__Finally, the defendants offered in evidence the following instrument, the rejection of which by the court formed the subject of the last bill of exceptions:
    
      “ Whereas we the subscribers have hei’etofore obtained judgments against Martin and Keiss, which are entered on the docket of the'Court of Common Pleas in and for the county of Lancaster, and executions have issued thereon respectively, and certain store - goods levied by the sheriff, and the book debts assigned towards satisfaction thereof, all of which is to be apportioned among the said judgment creditors, but there is no reasonable expectation that the whole of the said judgments will be satisfied, but only part thereof in proportion; nevertheless, being desirous to discharge George Keiss from any future responsibility on, or on account of said judgments, so that his future effects shall not be liable to be seized or affected thereby, we do agree, that on payment of the costs on the said judgments in the prothonotary’s office, we will, and we do, hereby release the said George Keiss from any future responsibility on the said judgments, or any or either of them, and discharge him any future liability by reason thereof. This agreement, however, is in no wise to affect the said judgments, or any of them, so far as regards any past or former proceedings, or to discharge the said executions, or other matters assigned towards payment of said, judgments, but on receipt of our respective di-' vidends of the goods levied and sold, or the proceeds thereof, and .the proceeds of the book debts, we will enter satisfaction in full for said judgments which are kept on foot solely for completing the proceedings already had therein.”
    
      Lancaster, Jlpril 15th, 1812.
    
      John Gundaker,
    
    
      Jl. Ereneman,
    
    
      Christopher Brenner,
    
      Charles Smith, Attorney for Joseph P. Horner, surviving Benjamin Horner,
    
    
      Jacob Kaffroth.”
    
      Jenkins, for the plaintiffs in error.
    1, The deposition of Judge Smith was competent. Under our practice, a second deposition may be used. Pennsylvania Pract. 161. Whart. Dig. 493. At all events, it ought to appear, that the first deposition might have been used before the second is excluded. In the present instance the previous deposition was taken for the purpose of opening the judgment; and by the rules of the court below, the terms of the rule for a deposition to be used' on an argument, and of one to be used on a trial, are different. ■ In one case, the deposition must be filed; in the other, it need not. In Forney v. Hallacher, a deposition taken by consent, and used before arbitrators, was held not competent to be used on the trial of the cause. It is no objection to a deposition, that a party has subsequently taken out a rule for a commission, to examine the witness in another state.
    2. The court, by.rejecting the deposition first taken, as well as the second, have placed the defendants below on the horns of a dilemma. The last deposition is rejected, because an earlier one is in existence, and that is also rejected, because the rules of court have not been complied with. The only plausible reason for rejecting the second deposition, is, that it was unnecessary to take it, when another existed. But if 4116 first cannot be used, it is a nullity, and therefore the reason fails.
    3 and 4. After having proved that the consideration of the bond was the indorsement of a note'in bank, and that there was no other debt, the defendants had a right to show the judgment upon which execution issued, and money was paid, in order to raise a presumption that the bond on which this suit is brought, was included in that judgment
    5. The paper purporting to be a release, whether it was technically such or not, ought to have been admitted in evidence, because it showed that the plaintiff’s claim was to be extinguished by his-receipt of his proportion of the proceeds of the goods levied upon, and afterwards sold, upon which he was to enter satisfaction. This proportion he has actually received, and thus the plaintiff has been actually paid. . . ..
    
      Porter and Buchanan, for the defendant in error,
    1st. The practice of taking depositions is derived from chancery, and is to be governed by the same rules. There, if the first-deposition be irregular, it is to be suppressed, and no second deposition can be taken, but on motion and leave granted. 2 Madd. Ch. 313. 1 Ham. Ch. 356. In Pennsylvania, the practice is not to move to suppress a deposition, but to take exception at the trial. A party ought not to be permitted to refuse to file a deposition which does not suit him, and take another, more to his purpose.
    3. The judgments offered in evidence were against the defendants as partners in trade, and the arrangement proved was with their creditors, in relation to the partnership debts; and consequently had no relation to the transaction on which the present suit is founded.
    4. Declarations of a partner, are not evidence to prove partnership. 10 Johns. 66.
    5. The paper pleaded as a release also related to another transaction. Besides, it was inadmissible from not being under seal. 11 Johns. 513. 14 Johns, 404.
    
      Hopkins, in reply, was stopped by the court. ■
   The opinion of the court was delivered by

Gibson, C. J.

Abuses of the rule to take depositions may undoubtedly occur; and where they appear, it will be proper to correct them. But nothing of the sort appears by the bill of exceptions; the question having been decided on the abstract right of the party to take a second deposition without the leave of. the court, or cause shown: a right which I have never’ before heard doubted. On the contrary, it is- notorious that the practice to reexamine as often as occasion may require, is general, if not universal. But'were this otherwise, still the prior deposition in this case, was taken on a five day rule, which by the rules of the district, was too short to entitle it to be read at the trial; even though a deposition taken for the particular purpose of procuring a judgment to be opened, were competent for every other purpose; a point about which we intimate no opinion. The objection that the defendants had given notice of a commission to examine the witness in Baltimore, in case he had not come to a place within the jurisdiction of the court, is too much attenuated for my perception; and, I shall only say, that we cannot sustain the judgment on that ground.

The judgments confessed by Martin and Keiss, for Martin, Keiss, and Morris, ought undoubtedly to have gone to the jury. It is true, that Martin and Keiss alone are liable on their bond; but the discount obtained on the credit of Kaffroth’’s indorsement, which was the consideration of it, may have been for the benefit of all three; and, if this were so, it would be not only possible, but highly probable, that the original security was abandoned, and the debt included in the arrangement with their creditors. There was, indeed, no evidence of their having been partners in trade; but the defendants contended they were, and might, perhaps, have subsequently proved it; or, the jury might possibly have inferred it from the circumstances. If this were established, nothing could withstand the inference that the judgment and the bond were separate securities against the eventual liability of the indorser. The defendants had given evidence which, if believed, must irresistibly lead to that conclusion, independently of proof of the partnership, ■the existence of which is not indispensable; and, that the fact might, by possibility, be as the defendants contended, is sufficient to show that an objection to the evidence could not be urged to the court, but to the jury, who were the constitutional judges of its effect, and who had a right to the entire developement of the transaction with its circumstances. Among these, the paper called a release, was an essential one. This could not be pleaded as a release at law, both because it was unsealed, and it did not purport to be a release of the instrument on which the action is founded: and which, therefore, can be affected by it only in equity, by showing the identity of the debt sued for, and that discharged by releasing the judgment. If there be a perfect identity in this respect, it is plain that a release of the judgment by an instrument •operative either at law or in equity, will discharge the debt secured by the bond; at least, as far as actual satisfaction has been made; in which case, it would be unconscionable in the obligee to pursue on the bond. Thus we perceive that the defence was an equitable one, and proper to be urged under our plea of payment, with leave to give the special- matter in evidence. Then, as the defendants had pleaded payment in addition to the existence of the release as an instrument, a variance between the instrument produced and that set out in the plea is immaterial, because it might be given in evidence without being pleaded at all. Nor is it material, that it was not sealed, as it amounts to an agreement which would be enforced in equity.

The remaining error is not sustained; it being perfectly clear, that the declarations of a partner, not a party to the suit, are not competent eyidence of the partnership.

Judgment reversed, and a venire facias de novo awarded.

Gibson, C. J., delivered the opinion of the court, Duncan, J., being sick and absent, and Rogers, J., being also absent.  