
    Kean administrator of Kean against Ellmaker.
    In Error. "
    
      Wednesday, May, 28.
    ERROR to the Court of Common Pleas of Dauphin rnnntv county.
    ■ -This was a scire facias, on a recognisance in the Orphans’ Court, to recover the value of a share of an intestate s real , . . II-, _ . estate taken at the appraisement, brought m the name of Amos Ellmaker, Esquire, President of the Orphans’ Court of phin county, successor to Walter Franklin, Esquire, who was successor to John Joseph Henry, Esquire, for the use of James Alricks, against John Kean, Esquire, with notice to Daniel Reigart and Nicholas Stooyer, terre • tenants in possession of a house in Harrisburg. After the of the writ, Kean died, and Jane Kean, administratrix, the will annexed, was substituted. A verdict and judgment had been given in this cause, in the year 1819, which judgment was reversed in May. 1820, on writ of error to this Court. (6 Serg. £5? Rawle, 44.) Afterwards a judgment de bonis was entered against Jane Kean by default. The cause then went to trial on the plea of payment: the jury were sworn as respected both the defendants, Jane Kean and Nicholas Swoyer, the writ not having been served on Reigart. It was admitted, that James Alricks, married one of the daughters of the intestate, John Hamilton, deceased, and that she was entitled to a share of the property, for the payment of the value of which, the recognisance was given by Kean, on which this suit was brought; and that the house occupied by the defendant, Swoyer, was part of the property taken by Kean at the appraisement. One question on the trial was, whether any thing remained due to Alricks. The plaintiff offered evidence to prove, that in the year, 1809, John Kean undertook to pay some of the heirs of John Hamilton, deceased, for James Alricks, and admitted he was then largely indebted to James Alricks for his wife’s share in John Hamilton’s real estate. To this evidence the defendant objected, but the Court admitted it, and the defendant excepted.
    
      in a scire fa-0Ias a£ainst a recognisor and terre tenant, g"nc,.r¡'n the'" Orphans Court for land tak> n atanap. mustfirstrecoagáiiríuh'e re-to separate the tlon of the
    etTOr if after judgment by default ngainst the recognisor, the jury is swor.n as to the recognisor and terre tenant. The declarations of the recognisor, after he has conveyed the land' to a third person, are not evidence in the proceeding against such third person as terre tenant, to shew that the recognisor was or was not indebted.
    
      The defendant then offered evidence to shew, that John Kean, since 1809, had repeatedly said, that he had paid James Alricks in full for his share in the estate of John Hamilton, and that he stated the same thing in the fall of 1816, when examined as a witness before arbitrators. To this evidence the-plaintiff objected, and it was overruled by the Court, who sealed another bill of exceptions.
    
      A,. Hopkins, for the plaintiff in error.
    The declarations of John Kean, after he had conveyed to Reigart and Swoyer, were not evidence to affect either of them. The declarations of a grantor after his conveyance, are not evidence against the grantee., Packer v. Gonzalus, ■1 Serg. £i? Rawle, 536. 539. Phoenix v. Assignees of In-graham, 5 Johns. 412. 2 Serg. £s? Rawle, 354. At any rate, if the declarations oí Kean are admitted to charge the terre tenant, his subsequent declarations on the same subject ought to be admitted to rebut them.
    
      Elder, contra.
    
      Reigart and Swoyer purchased, with notice of the recog“ •aisance entered' into by John Kean. The administratrix of Kean, was one of the defendants, and against her the decíarations of her intestate were evidence. On the issue of payment, his confessions were good evidenced The case is not like that of one who conveys land, and afterwards makes declarations.adverse to the title. - Here the declarations.are respecting a debt due from the grantor, which is collateral to the title. The case resembles that of joint tresspassers, where, after judgment by default against one, the jury are to assess the damages as to alb The judgment by default against the administratrix, is for the penalty of the .recognisance : the amount to be paid by the condition is an indefinite sum, and must be fixed by the jury. The sum fixed by the jury, would conclude the administratrix, as well as the terre tenant. As to the second bill of exceptions, though the declarations of a party are evidence against him, yet his declarations made at a. different time, are not, therefore, evidence for him.
    Ellmaker, in reply.
    The terre tenant was the only real defendant. The judgment which had been taken against the administratrix was for a sum certain, because the records of the Orphans’ Court specified the sum payable to each child : there was, therefore, no necessity to make her a party to the issue tried. .The declarations of Kean were not evidence against the terre .tenant at all:'but at all events, not those which he made subsequently to his conveyance to the terre tenants.
   The opinion of the Court was delivered by

Gibson J.

At,the last May Term, when this cause was before us on another point, we described the course of the proceedings between a recognisee and terre tenants defending their separate interests on a scire facias., The recognisor and the land are both debtor: the first directly an,d personally, in consequence of the contract to-pay’: the second, as a fund in the hands of whomsoever it may be ; but the recognisor is the person against whom the suit is to be brought, and until he is in Court, the cause cannot proceed for want of parties. Hence, if he does not appear, the plaintiff must do every thing he can to bring him in, or, in case of his death, his personaljrepresentatiye; and must, in either case, proceed for want of appearance, to judgment by default; and having thus disposed of the legal party, he may pursue against the land. The terre tenant, who has come in upon notice, then m'akes defence,,which, it is obvious, may be different from, and therefore is always necessarily unconnected with, the defence of the .recognisor :—as for instance he may plead a release of the particular land from the lien of the proceedings in the Orphans’ Court. . Each defends separately, and as the issue between the. plaintiff and the terre tenants is collateral to the proceedings against the recognisor, who is the defendant on record, so must the judgment be, which is, that the plaintiff have execution of the lands in the hands of the terre tenant for as much as has been found against him. Here then the commencement of -the error was, in swearing the jury as if the administratrix; of the recognisor were a party to the issue, and jointly concerned in the defence set up by the terre tenants, when she had, in fact, been defaulted, her responsibility in respect of the ássets fixed, and when she was to be considered a párty for no other purpose than to enable the plaintiff to proceed against ¡the land. As she represented only the interests of the recognisor and was no party to the- issue, it is plain, that his admissions, could not affect those' who were bona fide purchasers from him before those admissions were made, and who therefore were neither .parties nor privies. This is thei principle ^so familiar-in questions respecting the effect of recitals in deeds. But it-is said," that as the judgment against the administratrix is for the penalty of, the recognisance, the condition ofiwhich is the payment ofi.an indefinite sum, it is necessary that a jury or inquest should assess the sum due; and that the verdict against the terre tenants would, necessarily conclude the administratrix as a party to it, on the same ground that a jury, assessing damages against a joint trespasser, are also to assess the damages against those who have suffered judgment tdgo by default ; and that, in that view, the declarations of the récognisor were evidence against his own estate, as far as it was involved. There is not, however, the most remote resemblance between the case of joint trespassers, when the judgment is the same against all; and when the jury who try the issue as to those who appear, also assess the damages against those who have suffered'judgment to go by default, and the case of a recognisor and terre tenant who represent distinct interests in different rights, and against whom there are separate judgments which differ in their nature and fre- .... , . - quently in their amount. We are therefore of opinion, the issue. was exclusively between the plaintiffs and the terre, tenants, and that swearing the jury, as if the administratrix were a party, was error, and did not render her legitimately such and that as the estate of Kean the recognisor, was not involved in the question, his declaration's or admissions subsequent to the time when he parted with the land, were.not evidence to affect it in the hands of the terre tenants.,

On the' other hand, it is urged that as the declarations of Kean were, actually admitted to charge him, his subsequent declarations, that he had since paid the debt, ought also to have been admitted as rebutting evidence. The rule is that a particular,part of a confession shall not be selected, but the party is entitled to all he said at thé time, as explanatory of the expressions adduced ; but it goes no further ; for an admission would be of little value, if it might, when found to have been indiscreetly made, be afterwards qualified, or avoided altogether, by counter declarations. These fall within the rule, that a party shall not make evidence for himself, and it is therefore too, clear for argument, that, they were properly rejected.

Judgment reversed, and a venire facias de novo awarded.  