
    Morris vs. Wadsworth.
    Where, on a partition between the joint owners of land, one released to the other his interest in the moiety of a certain lot, covenanting, if it should thereafter appear that their grantor had no title to the lot, and a recompense could not he obtained from him in a reasonable time after his title should be found defective, that he would pay to his co-proprietor the value of the one half of the lot; and the title did prove defective—it was held, in an action on the covenant, that to entitle the plaintiff to recover, it was only necessary to prove the defect ot' title, demand of recompense from the grantor, failure to obtain it, or an excuse for the omission of the demand and notice to the covenantor; and that it was not incumbent upon the plaintiff to show that recourse had been had by due course of law against the original grantor to obtain recompense for the lot.
    A suit at law against the principal, is not necessary to sustain an action against the guarantor, unless it be required by the very terms of the contract, or necessarily implied from the terms used.,
    
    It was held in this case, that the plaintiff was entitled to recover the value of the moiety of the lot at the date of the covenant,, and was not limited to the consideration money expressed in the deed from the original owner.
    Presumption of payment arising from lapse of time, may he repelled by proof of facts and circumstances.
    In an action for the breach of covenant, contained in a deed of lands, whereon is endorsed the usual certificate of acknowledgment, the deed may he read in evidence without further proof of its execution, although it was executed previous to the act of 1833, on the subject of the proof of instruments in writing.
    On a trial at the circuit, the presiding judge is authorized to disregard a variance between tlie date of a written instrument declared on, and that produced in evidence ; the plaintiff is at liberty in such case, to apply for an amendment.
    A failure of title to lands can he shown only by documentary evidence; still a witness, in testifying to conversations with the party responsible in damages, is permitted to apeak of such failure, where the party seeking to recover such damages disavows all benefit of proof of failure of title arising from such conversations.
    An agent is a competent witness in a suit commenced by his directions, when he has not assumed any personal responsibility for the costs of the prosecution.
    A plaintiff who has given evidence in support of this action and rested, may, after the defendant has introduced his proof, be permitted by tlie circuit judge in the exercise of his discretion, to shift his ground and produce evidence showing a right to recover, although entirely variant from that primarily given; and this court will not ordinarily review the exercise of such discretion.
    This was an action of covenant, tried at the Ontario circuit in June, 1834, before the Hon. Daniel Moseley, one of the circuit judges.
    The suit was commenced in August, 1829. The declaration contains two counts; in the first of which the plaintiff declares, that on the 17th August, 1800, the defendant executed a deed poll, whereby, after reciting that in the division of sundry lots of land in the county of Ontario, whereof tlie plaintiff and defendant were tenants in common, it was agreed that the plaintiff should retain a certain lot of land known as lot No. 47, &c., which was conveyed by Oliver Phelps to the plaintiff in fee, by deed bearing date 1st January, 1800, the one half of which was in equity the property of the defendant, in lieu of which half of the lot the defendant had received otbei lands, the defendant, in consideration of the premises, released and forever quit-claimed to the plaintiff all his right, title and interest in or to the undivided half of the said lot No. 47 (the whole lot was supposed to contain 365 acres), and covenanted and agreed, that in case it should thereafter appear that Phelps, at the time of his conveyance, had not title to the lot, and a recompense for the same could not be obtained from Phelps in a reasonable time after his title thereto should be found to be defective, the defendant, would pay to the plaintiff the value of the one half of the lot. The plaintiff then avers that at the time of the conveyance to him, Phelps, had no title to the lot, either at law or in equity, and that such defect of title was discovered by him and the defendant on the first July, 1806; by reason whereof his title to the lot was defective. He further avers, that on the day last aforesaid, Phelps was wholly insolvent and unable to make any [105] recompense for the lot, and so continued until 1st February, 1809, when he died wholly insolvent and unable to pay his debts, so that the plaintiff was unable to obtain by due course of law or otherwise, and hath not obtained from Phelps any recompense for the lot, whereby the defendant became liable to pay to the plaintiff the value of the one half of the lot; and although the defendant had notice that the plaintiff had not obtained, and could not obtain such recompense from Phelps, yet he did not pay,’ &c., and so, &c. The second count is like the first, except that in addition to stating that Phelps had not title to the lot, it is averred that the title was in one W. Whiting, and that the discovery of the defect of'title was made on the 1st July, 1807, instead of 1st July, 1806, as alleged in the first count. The defendant pleaded; 1. Non est factum, to the whole declaration; 2. Payment to the plaintiff on 1st July, 1806, of the value of the moiety of the'lot; 3. That it was not found by the plaintiff and the defendant on the 1st July, 1806, as alleged in the first count of the declaration or on the 1st July, 1807, as alleged in the second count, or at any other time, that Phelps, at the time of conveying the lot, had no title thereto; 4. That at the time when it was found that the title of the plaintiff to the lot was defective, Phelps was not wholly insolvent and unable to make any recompense for the lot, and did not so continue insolvent until his death j but on the contrary thereof, ivas solvent, &c., and so continued until his death, and the plaintiff ■was not unable to obtain by due course of law or otherwise, recompense for the lot from Phelps; and 5. That the plaintiff did not, on the 1st February, 1809, or at any other time give notice to the defendant that he had not and could not obtain recompense, &c. The defence thus set up was spread out in numerous pleas, upon which issue was taken.
    On the trial of the cause the plaintiff produced in evidence the deed poll upon which the suit was brought, endorsed upon which appeared a certificate of a judge of the Ontario common pleas, that the same had been acknowledged by the defendant as his act and deed in the usual and due form of a certificate of acknowledgment of a conveyance of land, and which the plaintiff [106] offered as proof of the execution of the instrument. The defendant’s counsel objected that such certificate was not, in this action, competent evidence of the execution of the deed. The judge overruled the objection. The defendant’s counsel then objected to the instrument being read in evidence to the jury, on the ground that it varied in its date from the instrument declared on, which was alleged in the declaration to bear date on the seventeenth day of August, 1800, when the instrument produced purported to bear date on the twentieth day of August, 1800; which objection was also overruled and the deed read in evidence. The plaintiff then produced a deed of lot No. 47, executed by John Livingston to Oliver Phelps, bearing date 18th May, 1793, for the purpose of showing Phelps’s title, and proved that Livingston, previous to the conveyance to Phelps, to wit, on 29th January, 1790, ■ had conveyed the same lot to one Whiting, who on the 11th June, 1806, conveyed it to one Blodgit, who had ever since been in the possession thereof. John Greig, a witness for the plaintiff, testified that in 1804 he took charge of the business of the plaintiff in Ontario county as his agent; that he had repeated conversations with the defendant on the subject of the plaintiff’s claim in this suit, between the years 1804 and 1829; that he was not able to specify any particular date when those conversations were had, but that in those conversations the defendant admitted his liability under the covenant contained in the deed. When first called to the stand, he was asked by the plaintiff’s counsel, what conversation he had with the defendant respecting the failwe of Phelps’s title to lot No. 47. The defendant’s counsel objected to his relating any declarations of the defendant respecting the failure of the title of Phelps, and the judge thereupon decided that he might relate the conversation between him and the defendant, including what the defendant . said about the failure of Phelps’s title, and that he would advise the jury to disregard it as evidence of the fact of failure of title; to which decision the defendant’s counsel excepted. This witness, on his cross-ex imination, stated that the conversation between him and the defendant, to which he had alluded were in the course of a treaty of settlement, when he called [107] upon the defendant to fulfill his covenant, and that they were had in view of a settlement of the plaintiff’s claim under the covenant contained in the deed; which testimony he subsequently explained by stating, that by settlement he meant payment of the claims or settlement of the claims of the plaintiff. The counsel for the defendant insisted that the testimony of the witness should be expunged on the ground that the conversations were had in the course of a treaty of compromise ; but the judge refused to expunge the testimony, and the counsel excepted. It further appeared by the testimony of this witness, that he, as the agent of the plaintiff, who was insolvent, gave directions for the commencement of this suit unaccompanied by any .qualification as to his personal liability. The attorney and counsel however whom he retained, knew that he was the agent of the plaintiff, and he made no engagement to be personally responsible for the costs of the suit; upon these facts the counsel for the defendant insisted that the witness was interested, and that the testimony given by him should not be received as evidence in the cause; which objection was also overruled. The plaintiff proved that in January, 1807, Phelps made an assignment of property to the state of Connecticut, to which government' he was indebted in a large sum of money, and from that time was represented to be insolvent; his reputation as a man of property had been on the wane for about two years previous to that event. In the summer of 1807 he surrendered himself, or was surrendered in exoneration of his bail, in a suit pending against him, to the limits of the jail of the county of Ontario, where he remained until his death in February, 1809; during which time, also, he was imprisoned on a ca. sa. Various judgments, to large amounts, were rendered against him in September, 1806, and May, 1807, which, or others to a large amount, remained unsatisfied. His administrator testified that he never realized any thing from his personal property, and that claims to between two and three hundred thousand dollars were exhibited against his estate. Here the plaintiff rested.
    The defendant thereupon adduced a regular title from the original [108] source of title to Oliver Phelps and Nathaniel Gorham to a large tract of land including lot No. 47, the conveyance to them being executed in November, 1788. In January, 1794, Gorham released his share of the property to Phelps, who, on the 5th February, 1794, conveyed lot No. 47, to the plaintiff in this causé. To rebut which evidence the plaintiff proved that in November, 1790,' Phelps and Gorham conveyed a large tract of land to Robert 
      
      Morris, excepting from the conveyance a certain township in which lot No. 47 is situated, stating the same to have been conveyed to one Caleb Benton; he also produced the deed to Benton, bearing date in January, 1789, and a deed from Benton to John Livingston, dated in April, 1789, conveying among other lots the lot No. 47, and thus once more showed title out of Phelps. This latter evidence on the part of the plaintiff was objected to, by the counsel of the defendant, as inadmissible in this stage of the trial, he insisting that the plaintiff having adduced such proof as he thought proper, to show a failure of title in Phelps, and rested, and the defendant having gone into his defence, the plaintiff was not at liberty and should not be permitted to give evidence of a defect of title by showing a different and distinct state of facts from those on which he relied when he rested the cause. The objection, however was overruled, and the counsel excepted.
    The evidence being closed, the judge charged the jury that the deed poll set forth in the declaration was sufficiently proved. In regard to the issues joined upon the plea of payment, he instructed the jury that the defendant relied upon the presumption of payment arising from lapse of time; that in such a case it was not necessary for a plaintiff to repel the presumption of payment by proof of a new promise; that there was a difference between a statute limitation and a presumption; and that the repeated demands by the plaintiff’s agent and the excuses made by the defendant for not settling'the claim, were competent evidence to repel the presumption of payment. As to the issues presenting the questions whether the title of Phelps to lot No. 47 had failed, and whether he was able to make recompense, the judge in-[109] structed the jury, that the question of failure of title depended upon the documentary evidence, and that he was of opinion that the title had failed, and that it was not necessary for the plaintiff to show, by judicial proceedings, that the title to the lot had failed, or Phelps’s inability to make recompense. As to the issue respecting the insolvency of Phelps, and the inability of the plaintiff to obtain recompense from him, he instructed the jury to inquire whether Phelps was insolvent on the first day of July, 1807, and continued so until his death, and that their inquiry must be contiued to that period of time. The counsel for the defendant requested the judge to charge the jury, if they were satisfied that it was found and ascertained previous to 1st July, 1807, that Phelps’s title to the lot had failed, the plaintiff had not sustained his declaration; in reference to which the judge charged, that it was not material that it was ascertained previous to first July, 1807; that Phelps’s title had failed. The judge further instructed the jury, that it was incumbent upon the plaintiff to prove notice of his inability to collect of Phelps, and for evidence upon that subject he referred them to the testimony of Mr. Greig, lie also instructed them, if they found for the plaintiff, that they should find for the value of the land at the date of the covenant declared upon, and not at the date of Phelps’s deed to the plaintiff,
      
       and that they should allow theplaintiff interest on the amount thus found, from the time a demand was made on the defendant by the agent of the plaintiff to settle the matter, and that they might consider the demand as made at the time when notice was given to the defendant of the failure of title and of Phelps’s insolvency; and finally he told the jury that it was not necessary for the plaintiff to show that judicial proceedings had been had by him against Phelps, to prove his iuabilty to collect of Phelps a recompense for the value of the lot. To which charge the defendant’s counsel excepted. The jury found a verdict for the plaintiff for $1514'74. The defendant asks for a new trial.
    
      J. C. Spencer, for the defendant,
    insisted that the proof of the deed poll was insufficient to maintain the action on the covenant. The provisions of the statute (l R. L. 370, §5), authorizing the reading in evidence in the courts of this state without further proof, every deed conveyance, or writing of, or concerning lands or real estate, acknowledged or proved in the manner prescribed in the statute, he contended is applicable only where such deed, conveyance, or writing is relied upon to establish title tolanls, and not where the instrument is used merely as evidence of a covenant contained in it, and that when used for the latter purpose, it must be proved in the same manner as every other contract under seal must be verified. Such was always considered the law until the act of 1833 was passed, authorizing every written instrument, except promissory notes, bills of exchange and last wills and testaments, to be proved or acknowledged in the manner provided by law for taking the proof or acknowledgment of conveyances of real estate, and declaring that the certificate of the proper officer endorsed on such instrument should entitle it to be received in evidence on the trial of any action with the same effect and in the same manner as if such instrument were a conveyance of real estate (Laws of 1833, sess. 56, p. 396, § 9). This act is a legislative exposition of what was considered to be the law on this subject previous to its passage, and being prospective in its terms, does not help the plaintiff. He also contended that the variance in the date between the instrument declared on and that produced on the trial, was fatal; that it was such a variance as could not be amended after verdict, and therefore ought not to have been disregarded by the circuit judge. He insisted that after the plaintiff had rested on the evidence offered by him in support of his declaration, and the defendant had given proof in defence, that the [111] plaintiff was not at liberty to shift his ground and show a failure of the title of Phelps by proof, v .riant from that adduced by him previous to the defendant going into his defence. He also insisted that the judge erred in the rule of damages which he prescribed to the jury. The utmost which the plaintiff was entitled to recover, if he could recover at all, was the consideration paid by plaintiff to Phelps, and six years’ interest. The consideration expressed in the deed from Phelps to the plaintiff for the whole of lot No. 47, was only §385, and all the defendant was liable for on the discovery of the failure of the title, was the half of that sum with interest. If a recompense for the failure of title could not be obtained from Phelps, the defendant covenanted he would pay the value of one half lot. Had Phelps been sued and been able to pay, no more than the consideration money and interest could have been recovered of him; the plaintiff in that event would have had no claim against the defendant upon his covenant, and it is not perceived why the inability of Phelps to pay, should entitle the plaintiff to a greater compensation as against the defendant. The covenant of the defendant was virtually a guaranty of Phelps’s solvency, and consequently no more can be recovered of him, than might have been recovered of Phelps had he possessed the means of payment. In addition to the above grounds relied on in support of the application for a new trial, the counsel for the defendant urged the several other objections taken at the trial.
    
      A. Taber, for the plaintiff.
    
      
       Compston v. McNair, 1 Wend. 457 ; Hayes v. Ward, 4 Johns. Ch. 123. If the creditor decline to sue the principal at the surety's request, and the principal become insolvent the surety is discharged. Manchester Iron Manufac. Co. v. Sweeting, 10 Wend. 162; see Reynolds v. Ward, 5 Wend. 502, and note, Brown v. Curtis, 2 Coms. 225.
      It was a rule of the civil law that sureties might require that before they were sued, the principal debtor should, at their expense, be prosecuted to judgment and execution, Justinian Novel, 4 c. 1. This provision was followed in all the countries of Europe, which follow the rules of the civil law, Pothier on Obiig. 467; Code Napoleon, 2041; Erskine’s Inst. 504. But this rule, if followed at all by our courts, is confined to the case where the guarantor warrants the collectability, not the payment of the demand. Compston v. McNair, 1 Wend. 457; Helm v. Young, 9 B. Monroe, 394; Hawkins v. Ridenhorn, 13 Mis 135; Paterson v. Brock, 14 Mis. 473. The neglect of the creditor to sue the principal does not exonerate the surety unless lie is demnified by such neglect, People v. Berner, 13 Johns. 383 ; Schrœppel v. Shaw, 5 Barb. S. C. R 580, affirmed 3 Comst. 446; 1 Story’s Eq. 330, 656; Lenox v. Prout, 3 Wheaton, 520; 3 Kent’s Comm. 124 et seq; Warner v. Beardsley, 8 Wend. 195.
      
    
    
      
       Tlie consideration expressed, in the deed from Phelps to the plaintilf, executed 5tlx Pebruary, 1794, was $385. The case does not disclose what was the amount of the consideration of the deed from Phelps to the plaintiff, bearing date 1st January, 1800, and referred to in the deed poll. The value of land in the township in which lot No. 47 is situated was, in 1794, only seventy-five cents per acre ; it however rose rapidly in value, so that in 1800 it was worth $2-75 per acre, and in 1806 lot No. 47, supposed to contain 365 acres, was sold at the price of $4-75 per acre.
    
   By the Court,

Nelson, Ch. J.

This case has heretofore been before the court upon demurrer (11 Wendell, 100), and if the opinion then expressed in respect to the legal operation and effect of the covenant upon which the suit is brought was correct, there is scarcely any thing left upon this record for decision beyond several exceptions raised in the progress of the trial, which do not involve the merits. We then decided that legal proceedings against 0. Phelps, for the purpose of obtaining recompense provided for in the deed, were not a condition precedent to the liability of the defendant; [112] and it was then observed that in all the cases bearing upon the question in which such proceedings were deemed necessary, the very terms of the covenant either provided, or necessarily implied that the liability of the guarantor should depend upon the failure to obtain payment after proceedings had against the principal; and that where this was not the condition of the liability, either in terms or by legal inference, a suit was never necessary. The several authorities to support this doctrine were then referred to, and are believed to be conclusive upon the point.

A demand of recompense from Phelps, and notice of neglect or refusal to the defendant before suit, or some legal excuse for the omission, should be shown. Where the defendant guarantees the payment of a sum of money on a particular day or fixed time, it has frequently been held, that a demand and notice are unnecessary. The undertaking is then absolute and certain, and the liability arises immediately upon the default of the principal (20 Johns. B. 365). Here, however, the liability'of the defendant to pay, depended upon the happening of contingencies namely, the discovery that the title to the lot had failed, and the inability of the plaintiff to obtain recompense of Phelps. These were uncertain and a reasonable construction of the covenant required notice to the defendant before he could be considered in default. All, then, that was material to be proved on the trial, to authorize a recovery upon legal principles, unembarrassed with pleadings and technical objections, were the execution of the covenant; the discovery of the defect of the title of Phelps to the lot; demand of recompense and failure to obtain it in a reasonable time, or an excuse for the omission, and notice to tne defendant. From the numerous issues and objections taken at the trial, it becomes necessary to look into the pleadings and evidence, to see ii these facts have been properly established.

The execution of the deed containing the covenant was proved by the acknowledgment of the defendant before a proper officer in due form. This was objected to as not sufficient proof under the plea of non eit factum [113] of the execution of the personal covenant contained in the deed. The statute provides (1 R. S. 759, § 16), that every conveyance acknowledged, &c., may be read in evidence without further proof thereof;” this is confessedly sufficient proof of the execution of the deed for the principal purpose, namely, to show a transfer of title, it seems a natural consequence that it must be sufficient to prove the covenants which are merely incidental. Our acknowledgment of deeds is derived from the practice in levying a fine of acknowledging the concord or agreement, which is the material part of it, before the judges or commissioners duly authorized for that purpose; and which is conclusive upon the deforciant (3 Cruise, 34, 94; 12 Rep. 124; 10 id. 42, 3). For this reason it was supposed by the counsel in Jackson v. Schoonmaker (4 Johns. R. 161), that an acknowledgment under our statute was conclusive, it being in the nature of a judicial act. The chirograph of a fine is evidence in all courts of the contents (Bull. N. P. 229; 3 Cruise, 31); and as a warranty of the title is usually embraced in the concord, it is of course proved by this record. It was further objected that there was a variance in the description of the date of the deed, 17th instead of the 20th August. The cases of Lion v. Burtis (18 Johns. R. 540, and Kimball v. Huntington, 7 Wendell, 472), are decisive to sustain the judge in disregarding this variance, as a mere clerical error. . So is the statute (2 R. S. 406, §79; see also 9 Wendell, 311). The plaintiff may amend.

The charge of the judge was substantially correct, in respect to the issues upon the pleas of payment. The counsel for the defendant rested the proof of the truth of them upon the presumption arising from lapse of time since the breach of the covenant. This is not a statute bar, and any facts and circumstances tending to rebut the presumption, are admissible for the consideration of the jury (10 Johns. R. 417; 16 id. 310). The testimony of Greig strongly repelled any such presumption; he was not particular as to the time when he held the several conversations with the defendant detailed by him, but the jury were warranted in the conclusion that [114] some of them were within the twenty years, in which he virtually admitted the non-payment of the claim.

The issues upon the 4th, 5th, 6th, 7th and 8th pleas were substantially the same; presenting the question, whether it was found at any time since, that Phelps had no title to lot No. 47, when he conveyed it to the plaintiff, in February, 1794. The verbiage of the different pleas vary, and there is an apparent attempt to make time a material fact in some of the issues, but I think without success. The words of the covenant as laid are, “ that in case it should thereafter appear that the title of the said lot was not vested in the said Oliver Phelps, at the time of his conveying as aforesaid, to the said Thomas, and a recompense for the same could not be obtained from the said Phélps, in a reasonable time after the title thereto should be found defective, then,” &c. The breach alleged that Phelps had no title at the time of the conveyance; and that afterwards, to wit, on the 1st July, 1806, this fact was found and ascertained, &c.: in other words, or in substance, that it did afterwards appear, or was discovered that Phelps had no title to the lot, Sec. The declaration, says Mr. Chitty (1 Chilty, 257), “ must in general state a time when every material and traversable fact happened; the precise time, however, is not material, even in criminal cases, unless it constitute a material part of the contract declared upon, or where the date of a written contract or record is averred.” Here time was not material, and seems- to have been so understood by the draftsman of the pleas; for he does not venture an issue upon the precise day laid in the declaration, but says that it was not found, &c., on the 1st July, 1806, or 1st July, 1807, or at any other time, &c. The charge of the judge, therefore, on this part of the case, I think unexceptionable. The title of Phelps, was unquestionably defective, as proved by the documentary evidence.

As to the insolvency and inability of Phelps to make recompense. The several issues upon this point present substantially the question, whether Phelps was insolvent and wholly unable to make recompense for the failure of the title to the lot, at the time the defect was ascertained, or since. Upon these issues, the judge charged the jury to inquire whether [115] Phelps was insolvent on the 1st July, 1807, and continued so till his death; and that their inquiries were to be confined to that time. He was requested by the counsel for the defendant to instruct the jury, that inasmuch as the declaration averred that it was ascertained on the 1st July, 1807, that Phelps’s title had failed, if they were satisfied that the fact had been ascertained before that time, then the defendant was entitled to their verdict on these issues; which was refused. This request must have been made upon the assumption that time in the above averment was material, and the plaintiff confined to it, which we have endeavored to show incorrect, and is a full answer, to the request; or perhaps upon the assumption that, as the judge had confined the question of insolvency to the 1st July and subsequent, if it could be shown that the defect of title had been ascertained before that day, then for aught that would appear to the contrary Phelps was then solvent and able to pay. The judge, I think, erred in limiting the inquiry of the jury upon these issues to the particular day, it being immaterial; but it Would have been equally erroneous to have adopted the suggestion of the counsel. The true question upon the whole record in respect to this part of the case, was, whether Phelps was insolvent and unable to pay at the time and since the defect of title was discovered. The averment in both counts of the declaration is, that at the time it was found that the title was defective, the said Oliver Phelps was wholly insolvent, and unable to make recompense, and continued so insolvent, &c. Now. disregarding time as immaterial, the pleas are substantially a negative of this allegation in the declaration in its broadest aspect. Indeed, all of the pleas of insolvency and inability, in terms negative the averment, without regard to any particular day. They deny the insolvency, &c., at and after the time it was ascertained the title of Phelps was defective, be that when it may. The request, theiefore, should have been to instruct the jury accordingly. Upon the facts, however, it is obvious the instruction could not have been prejudicial to the rights of the defendant, as there can be no reasonable doubt but that [116] Phelps was insolvent at the time the title was discovered to be defective.

As to notice: The judge charged that notice was necessary, and we do not perceive that any objection was taken to this part of the direction given to the j ary.

As to the measure of damages: There is some ground for contending that the damages should be limited to the amount which the plaintiff could legally have recovered of Phelps, as the remedies are in the alternative for the same injury; that would have been one-half the consideration money paid to Phelps and the interest thereof; but from an attentive examination of the terms and import of the covenant, I am inclined to think the instruction at the trial correct. It appears from the recitals in the deed, that the parties had been tenants in common in several parcels of land, and that in the partition thereof the defendant received other lands in lieu of the moiety of lot No. 47, released to the plaintiff. It is fair, therefore, to presume that the partition was made upon an appraised or estimated value of the several parcels of land at the time, and that the plaintiff had given a full equivalent for the moiety of this lot at the time of the execution of the release and covenant. When, therefore, the defendant covenanted that on a failure to obtain a recompense of Phelps, he “ would pay to the said Thomas the value of one half of the said lot,” the parties intended, what the words clearly and legally import, one half the v lue of the premises at the time of the execution of the deed which contained this covenant. This is the natural meaning of the language used, and the reasonable and just interpretation under the recitals in the deed.

The interest would commence upon notice to the plaintiff of the inability or default of Phelps. The time when this was given was left doubtful by the evidence, but it was a question of fact for the jury. The charge of the jury was substantially in conformity to this view.

Some exceptions were taken to the decisions of the judge in respect to the admissibility of evidence, which it is proper to notice. 1. As to the conversations of Greig with the defendant in respect to the failure of the [117] title of Phelps. It was difficult, if not impossible to prove by these conversations, notice of the failure of title and inability to procure recompense, which was the material point of the inquiry, without incidentally alluding to the title. If the plaintiff had first produced the documentary evidence of the fact of failure, which would have been more orderly, there could not have been a pretence for the exception. The part of the conversation, however, relating to the failure of title, was disavowed, in the hearing of the jury, as evidence of the fact. The conversations were admissible for the purpose offered, and the plaintiff was entitled to the benefit of them. Besides, tile documentary proof was afte; wards introduced, and exclusively relied on, as evidence of the failure of title, and which abundantly proved it

2. Several exceptions were taken to the proof of the insolvency of Phelps, but all of tlurn are so clearly untenable, it will not be important to notice them. All the evidence fairly tended to establish the fact.

3. Greig was objected to as an interested witness, on the ground that he had retained and stood responsible to the attorneys of the plaintiff .for their costs. They were retained by him as- the agent of Morris, and he had not made himself personally responsible. He was therefore a competent witness.

4. The conversations of this witness with the defendant were also objected to, on the ground that they occurred during a negotiation to settle the claim in controversy. It is apparent from his testimony, that by settlement the witness meant merely an effort to obtain payment of the claim. There was no attempt to compromise on the part of the defendant; he refused to pay anything.

5. The counsel for the plaintiff having established a prima facie case of failure of title by documentary evidence, the defendant countervailed it by tracing title in Phelps from the original source of title. This made it necessary for the plaintiff to displace the title thus proved; which was done. I lay out of the case the deed to B. Morris, and the questions growing out of it as unimportant, after the deed to Benton was introduced. [118] The counsel for the defendant objected to the evidence offered to displace the title, on the ground that the plaintiff was bound in the orderly course of the trial to introduce all his proof of failure of title in the first instance, and, several authorities were referred to in support of the objection, viz: 2 Bos. & Pul. 332; 3 Com. L. R. 230; 12 id 297; 24 id. 330; Chitty’s Gen. Pr. 909. The practice in England is not uniform upon this subject, and depends very much upon the exercise of the discretion of the judge at nisi prius, as may be seen by a reference to the following authorities: 16 Com. L. 436; 22 id. 256, and note; 21 id. 386, 431, and note; 2 id. 462; 1 Ry. & Mood. 255; 1 Starkie’s Ed. 365, 6, 7, Phil. ed. The course- of the trial there influences in some measure, the opinion of the judges. The counsel for the plaintiff opens his case at large, commenting upon the facts he expects to prove. After the plaintiff’s evidence closes, the counsel for the defendant opens at large the defence, commenting upon the plaintiff’s case, as well as upon the testimony he expects to produce; and then a general reply closes the case. If the defendant produce no evidence, except what is drawn out on the cross-examination, no reply is admitted. Where the plaintiff produces fresh evidence in contradiction of some facts proved by the defendant’s witnesses, the counsel for the defendant, it seems, is then entitled to comment upon it, not having had an opportunity to do so in his opening. It is apparent, from this course of practice, the time consumed in the trial may often be shortened by compelling the plaintiff, in. the first instance, to spread out his whole case; every thing that by possibility may become necessary, so as to save the comments in reply of the defendant’s counsel. This or some other reason induced Lord EUenborough, at the circuit, to go the unreasonable length of requiring the counsel for the plaintiff to include in his opening the facts in reply to any distinct answer to the action, which appeared on the record by way of plea or notice, without waiting to see whether such defence could be proved or not. There is certainly a proper order in which the evidence should be produced on the trial, and which the pleadings and nature of the controversy will readily indicate to the presiding judge; and if [119] this should be violated, and the rights of the party suffer by reason thereof, this court would no doubt interfere, but the question must always depend so much upon the exercise of a sound discretion, that it would be unsafe to lay down any general rule, for the disobedience of which an exception should be allowed. We have frequently seen trials at the circuit very much shortened by a departure from what might strictly be deemed the natural order of the evidence, without injustice or the sugestión of injustice to either party. The ruling in this case, I have no doubt, was in conformity to the uniform practice at trials under like circumstances.

Upon the whole, after a careful and patient examination of the numerous points and questions in the case, we are of opinion a new trial must be denied.

New trial denied.  