
    Coe, surviving partner of Coe, against Hutton.
    In Error.
    UPON a writ of error to the Common Pleas of Bucks county, a bill of exceptions to the admission of testimony, and another to the charge of the court, were returned with the record, and presented the following case:
    
      James Hutton brought an action in the court below, against Robert Coe, jun. surviving partner of the late firm of Robert Coe & Son, and declared for money paid by him for the use of the firm, and money received by them for his use. At the trial he gave in evidence a promissory note for 800 dollars, drawn by Robert Coe Son, in favour of James Hutton, by whom it was endorsed, dated Philadelphia, 1st Month (January) 20th, 1804, payable ninety days after date. To prove that this note had been taken up and paid by him, the plaint-tiff produced and read in evidence, a transcript of the record of a judgment in a suit brought against him, in the Supreme Court of Pennsylvania, by one George Bernard, on anote for 800 dollars, bearing the same date, drawn and endorsed by the same parties, and payable in sixty days'. It appeared from the record, that this judgment had been satisfied.
    The plaintiff then examined a witness, who deposed, that some time in June, 1808, he called on Robert Coe, jun. and demanded payment of a note for 800 dollars, when Coe told him it was not convenient for him to pay it, and that he thought it hard James Hutton should push him for the money at that time, as it was drawing interest. The witness could not say he should know the note, but he believed it to be the same that had been given in evidence ; nor could he positively say, that he had shown it to Coe.
    
    
      Thomas Shipley, another witness produced by the plaintiff, deposed, that he was present at a conversation between Robert Coe, jun. and James Hutton, when Coe made a proposition to bind himself individually for half the amount of a certain note for 800 dollars, then in the hands of George Bernard, provided his father would become responsible for the other half, and provided Hutton would settle with Ber7 * nard in some other way. Some time afterwards, Robert Coe the elder, called at Hutton’s store, and requested the witness to inform Hutton, who was not at home, that he would agree to any proposition his son should make in relation to the note for 800 dollars. This conversation took place in the year 1805 or 1806. Shipley further stated, that Robert Coe & Son were in partnership when the assignment, hereafter noticed, was executed, but he believed they were not so afterwards, and that he believed the Coes and Hutton had exchanged several notes for their mutual accommodation.
    
      A cash account shown to the defendant and not objected to by him, was held tobe evidence, upon which the jury under all the circumstances of the case, might decide.
    if a transcript of a record appear upon the face ©fit, to be irrelevant to the the issue, it ought not to he read in evidence ; but if no objection he made to its being read, it is not error, that the court below permitted the jury to judge of its correctness.
    If an assignment be made for the benefit of such creditors, as within three months from the date of it, shall execute a release, a creditor who signs the release after the expiration of that period, is bound by it; though the assignment be declared to be the consideration of the release, and though he can take nothing under the assignment.
    If the indorser of a promissory note, before the note becomes due, release to the drawer, all actions, causes of action, and demands, which he then had, or in future might have, against the drawer, by reason of any act, matter, cause, or thing, prior to the date of the release, he cannot, after the note has been dishonoured and taken up by him, sustain an action against the drawer, for money paid to his use.
    
      To counteract this evidence, the defendant read the deposition of Richard Coe, who had been a clerk in the house of Robert Coe S Son, to prove, that the note in question, had been drawn by that firm, at the request and for the accommodation of Hutton, to whom the deponent, after getting it discounted, paid the money.
    The cash account of the plaintiff with the house of Robert Coe ¡S Son, commencing eighth month (August) 29th, 1803, and ending third month (March) 30th, 1804, was also read, from which it appeared, that there was a balance of 67 dollars 38 cents against Hutton. This account Thomas Shipley deposed, was in his own had writing, and made out while he was in Hutton’s store. He stated, that he drew it from Hutton’s books by the direction of Robert Coe the.younger, with whom he examined it; but that he did not consider it quite complete.
    An assignment bearing date fourth month (April) 13th, 1804, executed by Robert Coe Es? Son, was then produced.
    This assignment conveyed to Charles Pleasants and Thomas Rogers, their heirs, &c. all the estate, real, personal, and mixed, of Robert Coe the elder, and Robert Coe the younger® both in their individual capacities and as copartners in trade, in trust for the benefit of such of their creditors, as should within three months from the date of the assignment, come in and claim the benefit of it, and execute a release of all future claims and demands against them. An exception was made in favour of certain banks, which were to receive a dividend without having signed a release. Several other provisions were made by the assignment, which it is not nt> cessary to mention.
    The next evidence exhibited by the defendant, was a release, dated April 14th, 1804, signed by a number of the creditors of Robert Coe &? Son, and among the rest by the plaintiff, from which .it appeared, that in consideration of the assignment made for their benefit, and of the sum of one dollar, paid to each of them, they had released to the defendants, as well in their partnership, as in their separate capacities, “ all actions or causes of action, suits, bills, bonds, “ writings-, obligations, debts, dues, duties, reckonings, accounts, sums of money, judgments, executions, extents, “ trespasses, claims, damages, and demands whatsoever,” which they ever had, then had, or thereafter might “ .have, “ claim or demand, by reason or means of any act, matter, “ cause, or thing, from the beginning of the world to the day “ of,the' date of” the assignment.
    The depositions of Pleasants and Rogers, the assignee^ were then read, which stated, that they had made a compromise with the banks, the chief motive for which was, that Robert Coe & Son were upon Hutton's paper, and as they considered his situation precarious, they were apprehensive that the estate in their hands would be injured by his failure. They also stated, that no such note as that given in evidence, had been presented to them during the time prescribed by the assignment for payments to be made.
    There was no evidence to show at what time Hutton signed the release.
    To rebut part of the testimony adduced by the defendant, the plaintiff offered another cash account-, which Thomas Shipley deposed, was also in his hand writing, and made out a day or two after the first account. This account he said he had some recollection of, when he stated that he thought the other account not complete. The second account corresponded with the first, except that at the bottom of it Robert Coe U1 Son were debited with this note for 800 dollars, and with another note for 158 dollars 51 cents. .Mr. Shipley stated, that Coe was not present when the latter items were added to the account, which was done some time after the assignment, for the purpose of making it correspond with Hutton's books. He saw the account however, after these additions had been made, and to the best of the witness’s recollection, made no objection to it.
    
      To the admission of this account, the counsel for the deiendant objected; but the court over-ruled the objection, and a bill of exceptions was tendered and sealed.
    Upon the whole case, the court (Wilson President) .charged the jury to this effect: That if the note was given for the accommodation of Hutton, and he received the money raised upon it, he could not recover; but if it was for the accommodation of Robert Coe & Son, and was paid by Hutton, he could recover: That if the jury were of opinion, that the note was for the accommodation ■ of Robert Coe Es? Son, it was necessary for the plaintiff to prove that he had paid it: That the possession of the note, was of itself, evidence that he had paid it, because, in the regular course of business, it could not have come into his hands, unless he had paid, the money to Bernard: That in addition to this - evidence, the jury had the record of a judgment in the Supreme Court in the case of Bernard v. Hutton, in’ Which, indeed, the note on which the suit was founded, did not exactly correspond in the description of it, with the one before them, as it was payable in sixty days: That it could not therefore be the same, unless there had been a mistake in transcribing the record, of which the jury might judge: That there was, however, no-evidence before them to prove any mistake, except the declarations of Thomas Shipley, that he knew of but one note in the hands of George Bernard................
    With respect to the release, the court said, that if it was executed before Hutton took up the. note out of Bernard’s hands and paid it, it would not operate as a bar to his recios very in this action, because there Was bo. debt due from the Coes to him, until he had paid the note; and although the release would bar debts then existing, which were payable at a future day, it would not bar debts which did not exist when it was executed: That if the release was executed after the note had been paid by Hutton, and after the expiration of the three months limited by the assignment for creditors to come in and claim a dividend, it would not be a bar; for though a man might ■ release a debt without a consideration, if he meant to do so, that was'not the design of this instrument, which is stated to have been made in .consideration of thé assignment, &c.: That the transaction was in the nature of a mutual contract, and that if Hutton could derive no benefit from the assignment, which was the consideration of the release, he ought not to be bound by the release.
    A bill of exceptions to this opinion, was sealed by the court, and the jury having found for the plaintiff, the defendant took a writ of error.
    Kittera, for the plaintiff in error, made three points.
    
      First, Hutton's■ second cash account was improperly permitted to go to the jury. The first account showed a balance in favour of Robert Coe £s? Son, and the account offered by •the plaintiff below, was precisely the same thing, with an addition underneath charging that firm with the amount of the note for ® 800. This addition was made when neither of the partners was present, and is supported solely by the testimony of Thomas Shipley, who proves nothing more than that Robert Coe saw the account after the addition had been made, and did not object to it; there is no proof that he admitted it to be correct.
    Second, The release was a bar to the plaintiff’s action. It is true, that at the time this instrument was executed, there was no debt actually due from the releasee to the re-leaser; but that was not necessary. Whenever an act is done upon which a future liability is to be founded, a release will operate. Such is the language of the books. It is said, in Co. Litt. 292, b. that by a release of all actions, debitum in presentí, sohendum in futuro, is discharged; and that a release of all covenants, discharges covenants not broken. Even a release of dower to him in reversion, before the title to dower is complete, is good. Co. Litt. 265, a. This point is placed beyond dispute by Lord Ellenborough, in the case of Scott v. Lifford,
      
       where it was held that a release to the acceptor of a bill of exchange by the drawer, before he had paid the bill, was good; because a future action by the drawer against the acceptor, would refer back to the acceptance, which was a transaction already passed. Keeping these authorities in view, how can it be said that there was no subject, on which the release in this case could operate ? The language of the instrument is as comprehensive as it was possible to make it. It embraced all future claims which might arise out of any act, matter, Cause, or thing, which had occurred prior to the date of the assignment. The note' for g 800, which was- made before the execution of the release, is the foundation of this action. The claim therefore of the plaintiff, has arisen out of an act done before the re- * . lease was signed, and is consequently within both the words and spirit of that instrument.
    Whether Hutton could derive any benefit from the assignment or not, is altogether immaterial, because no consideration is necessary to support a release. Powell on Cont. 332. If, however, such an objection could be made to instruments of this nature, it would not apply to that executed by the creditors of Robert Coe & Son, because the consideration of one dollar is expressed in the deed.
    Third., The court below erred in permitting the jury to decide upon the correctness of the transcript of the record. A record itself cannot be contradicted, and a copy under the seal of the court, is evidence of so high a nature, that it must be received as indisputable proof of the contents of the original, and no jury can be permitted to impugn it. Peake’s' Ev. 27. 31.
    
      Hallowed, for the defendant in error,
    said, that the second cash account supported by the evidence of Shipley, who stated that Robert Coe saw it after it was made out, and made no objection to it, which was equivalent to an admission of its correctness, was clearly evidence upon which the jury might decide. • -
    That admitting, for the sake of argument, the court below to have been wrong in telling the jury that they might judge, whether or not a mistake had been made in transcribing the-record, yet it was not such an error as this- court will correct. It is not every mistake of a judge that will lay a foundation* for a new trial, or authorise a reversal of a judgment upon, writ of error. An erroneous opinion upon matter of fact, notwithstanding the jury may have been greatly influenced by it,, cannot be inquired into by the court above.- Nor can; any advantage be taken even of an error on a point of law, if it be not material to the issue. A mistake in point of law,, upon a matter pertinent to the issue, is the only ground upon, which the superior tribunal can proceed. De Peister v. De Peister,
      Phœnix Insurance Company v. Pratt,
      
       Newman 
      v. Cap.
      
       If this statement of the law be correct, there is nothing in this part of the case, which calls for the interference court. . The record in question was not at all material to the issue, because there was sufficient evidence to prove, that the note had been paid by Hutton, without resorting to the record.of Bernard's action.
    In relation to the release, Mr. Hállotvell dividedthe subject into two branches. 1.. Supposing.it to. have been, executed before the plaintiff took up the note.., 2.' .Supposing, its.exer cution to have been after the expiration of the three months limited -by the assignment.
    1. The note did not become due untij six days after the date of the release, and the indorser is not liable until the note is dishonoured. Of course, then,.there was no debt or demand of:any kind, existing on the part.of the releaser against the' releasee,, at the date of the release, upon which that'instrument. could operate ; for what does not exist, surely cannot be released. It is said, however, that all future demands which- may arise out of a past transaction, may be discharged. This is laying down the proposition too broadly, and in a manner not warranted by the best authorities. Co. Litt. 265, a. 292, b. Shep. Touch. 339; 5 Bac. Ab. 704. 708. Release. Butcher v. Butcher.
       And in Hoe's Case
      
       the law, as contended for,on hehalf .of the defendant in error, is enforced. .There the, defendant, had been bail for another, and afterwards, but .before judgment, the plaintiff released to him'all actions, dues, and demands. It was adjudged that this was no bar to. an action by the plaintiff, because the engagement of the. bail -was conditional; his duty could not be exactly ascertained until judgment, and there was consequently no demand against him at the .time the release was executed. The case of Scott v. Lifford, so much relied upon on the opposite side,, is certainly of a. very extraordinary character, and its authority is. not to be admitted. It was a Nisi Prius decision, and is not supported by the authority referred,to in-the margin. But even that case may easily be distinguished; from this. There it was the intention to release the-matter in dispute.. The express object of.the release was -to discharge,,the releasee from responsibility-in that particular .affair, in order to. make him a competent witness. There is another feature too, in which that case, differs from the one now under discussion, which is, that the release was to the acceptor of a. bill of exchange, after he, had accepted, and had thus incurred a responsibility. Upon the whole, there must be in -existence,, at-the time of the execution of the instrument, some debt or demand upon which it may work, or it can have no efficacy. ■
    2. If, however, the date of the release is not to be considered as to. the period of its execution, and it was signed after the- expiration of the three months, within which creditors were to come in and claim the benefit of the assignment, still it is void. The assignment was the consideration upon which it was founded. All those who did not come forward within a prescribed time were to be excluded from a dividend of the estate. As therefore nothing could be derived from the assignment, the foundation upon which alone the release rested, has failed, and of course it must fall to the ground. As to the sum of one dollar, which is expressed to be part of the consideration, it is merely nominal, and has ho weight.
    
      Reply. If the court below has erred in matter of law, it is the duty of this court to reverse the judgment. A writ of error is not like an application for a new trial, where the court has a discretionary power, upon a view of the whole case, to grant it or not. The judge below, in this instance, was mistaken in his opinion as to the legal operation of the record i and the plaintiff is not to be permitted now to say, that this record was not material evidence, when he himself brought it forward in support of his action.
    As to the release, it expressly refers to the assignment, and the releaser must be supposed to be acquainted with the contents of the instrument, upon which his deed is founded. If then the release was executed after the expiration of the three months, he knew, that by the terms of the assignment he could take nothing under it; and if he chose, notwithstanding, to release, he surely must be bound by his own act. But it cannot properly be said that there was no consideration. The release is declared to have been made in consideration of the assignment; and as the assignment was actually in existence, it might have been the pleasure of the plaintiff, from motives of Humanity, to relinquish his own debt, to men who bad honestly given up all their property for the benefit of their creditors. Other considerations too, might have operated upon him. There might have been a private arrangement to let Mr. Hutton in, though not strictly entitled, or there might have been a promise to pay him a certain sum, as- an inducement to sign the instrument. But whatever may have been the motives by which he was actuated, it is undeniable, that he has, with a full knowledge of all the circumstances, put his name to the release. He cannot therefore be suffered to defeat his own deliberate act.
    
      
      
         1 Camp. Rep. 250.
    
    
      
      
        Caines, T. R. 85.
    
    
      
      
         2 Minn. 323.
    
    
      
      
        5 Binn. 74.
    
    
      
      
        4 Bos. & Pull. 113.
      
    
    
      
       5 Reports, 71.
    
   Tilghman C. J.

Hutton, the plaintiff below, brought this action against Robert Coe, jun. surviving partner of his father Robert Coe, sen. deceased, who were joint partners in trade, under the name of Robert Coe & Son, and declared for money paid by him for the use of the said Robert Coe Son, and money received by them for his use. The jury found for the plaintiff.

Two bills of exceptions appear on the record. The first to* the admission of evidence ; the second to the charge of the court.

1. The evidence excepted to by the defendant, was an-account produced by the plaintiff. This exception has not been much insisted on, nor ought it to have been. The account was not evidence per se, but accompanied as it was, by the testimony of Thomas Shipley, who proved, that it was shown to the defendants, and he thinks acknowledged by them, or certainly not objected to, there can be no doubt but it was evidence. The jury would give it such weight as they thought it deserved under all circumstances.

2. In order to understand the exceptions to the charge, it is necessary to state the material facts. Coe Son had given their note for 800 dollars to the plaintiff, dated January 20th, 1804, and payable ninety days after date.. This note was endorsed by the plaintiff, and as he alleged, for the accommodation and benefit of the defendants. The plaintiff als'd alleges, that the note, being in the hands of one Bernard., was taken up by him and paid out of his own funds. There was no direct proof of the plaintiff having paid the note, but he had it in his hands, and produced it on the trial. He produced also the record of a judgment which Bernard had obtained against him, on a note for 800 dollars, payable at sixty days, which judgment Hutton had satisfied. On the 13th April, 1804, Coe £5? Son executed an assignment of all their property, in trust for the benefit of such of their creditors as should give them a release within three months from the date of the ,*j assignment. A release bearing date 14th April, 1804, was given in evidence by the defendant, executed by a number of the creditors, among whom was the plaintiff. The court charged, that the note mentioned in the record of Bernards action, could not be the same as the note on which this action is founded, unless the jury should think that there was a mistake in transcribing the record, of which they might judge ; at the same time telling them, that the court saw no evidence of any mistake.

This charge is objected to, because the court did not tell the jury, that they were bound to take the transcript produced, as conclusive evidence of the record. The defendant seems to have come rather late with this exception; he ought to have objected to the transcript going in evidence. Appearing on its face to set forth a different note, it was not relevant to the matter in issue. But having suffered it to be read in evidence, and not having asked the court’s opinion specially on this point, it would be hard to reverse the judgment, because the jury were permitted to judge, whether there had not been an error in copying the record; especially as they were told, that the court saw no evidence to prove an error. It is certain, that mistakes frequently happen in copying records, and where there is a mistake, the jury are bound to believe the original and reject the copy.

Thqn, as the defendant suffered the transcript to be tend, thereby in some measure confessing its relevancy, and it was possible, that the copy might not have been true, I do not think, that what fell from the court in remarking on the evidence, can be accounted error sufficient to reverse the judgment.

3. Another error assigned in the charge is, the judge’s saying, that if the release was executed by the plaintiff after three months from the date of the assignment, the plaintiff is not barred; because the release was made in consideration of the benefit to be derived from the assignment; but no benefit was in such case derived from the assignment; therefore, the release had no operation. The counsel for the defendant in error, has first endeavoured to evade the force of this objection by remarking, that even supposing the charge to have been erroneous in this point, it is no cause for reversing the judgment, because it was immaterial, the fact being, that the release was executed within three months from the assignment, as appears by its date. It seems to me, however, that this part of the charge was very material, because there was no evidence fixing the time of the execution of the release; nor were there any subscribing witnesses to it, and when the judge submitted it to the jury as a fact to be decided by them, this court cannot consider it otherwise than as a matter of uncertainty. Let us examine then, whether the release had any operation in the case supposed by the judge, that is, in case the release was executed more than three months after the assignment. A release is good without any consideration, but here is a consideration of one dollar and the assignment made by Coe is? Son; and it is urged, that although a release may be good without consideration, yet it is not good where it was expected to receive a consideration which has failed. -It does not appear, however, that there has been any fraud practised by the releásees, or that there was any mistake or misapprehension of the releaser; the release refers to the assignment, and it must be taken for granted, that the condition on which only a dividend could be received from the estate of Coe is? Son, was well known to the releaser. Knowing then, when he executed the release, that he was to receive no benefit from the assignment, with what propriety can he now insist on that circumstance as a ground for avoiding his action ? It is argued, that he must have been under a misapprehension, because the assignment could be no consideration for the release, unless the releaser was to derive benefit from it. But this is going too far. There might be other considerations than those of personal benefit influencing the mind of the releaser. He might, from feelings of humanity, have been induced to discharge persons who had been unfortunate, had acted honestly, and had given up all to their creditors, even though he himself was' excluded from any participation, in consequence of his own omission; or possibly there might have been a latent expectation of being let in for a dividend, by the consent of the other creditors. Be that as it may, there being no evidence of fraud or mistake, and a release being an instrument not requiring any consideration, I am of opinion, that the releaser . was bound by it, although he could receive no benefit from the assignment. . .

4. There is one more exception to the charge of the court. They were of opinion, that if the plaintiff executed the release before-he took up -the note, he was not barred, because at that time there was no -debt existing, and therefore the release had no operation. The release is drawn in words as comprehensive as possible, and was undoubtedly inténded to reach this debt, so that it is the duty of the court to support it if possible. It is a release of all actions, causes of action, and demands, which the releaser then had, or might in future have, against the defendants, by reason for means of any act, matter, cause, or thing, from the beginning of the world to the date of the release. Now, the present action cannot be supported, but by reason of the note, which was given before the release. It cannot be shown that the plaintiff paid money on account of the defendants, without producing that note, and accordingly it was given in evidence on the part of the plaintiff. If not a release, technically speaking, it would amount to an agreement not to sue, which answers the defendant’s purpose as well. To say, that a man who knows he is liable to pay a sum of money, on any account, may not bind himself not to have recourse to one, after he shall have paid the money, is in my mind unreasonable to the highest degree. Some of the old cases go a great way against such a release. But of late, there has been more liberality of principle. The case of Scott v. Lifford, (1 Camp. 250,) is directly. in point. The drawer of a bill of exchange released the acceptor before he (the drawer) had taken up the bill. Held that the release would bar the drawer in case he should bring an action against the acceptor, after he had paid the bill. This case is no authority here,having been decided in England; but it shows that the strict old English law, on which the plaintiff relies, has been relaxed in the country which gave it birth. Upon the whole, I am of opinion, that the judgment should be reversed, and a venire de novo awarded.

Yeates J.

The release purporting to bear date on the 14th April, 1804, executed by the defendant in error, and other creditors, to Robert Coe, senior and junior, appears to me to operate as a bar to a recovery in this suit. The release precedes the time of payment contained in the note six days, and the days of grace expired on the 23d April, 1804. j The time of Hutton’s executing the release is not specified, but we well know the mode in which such business is transacted, arid that creditors of an insolvent firm sign the instrument at different times. The consideration of the release is expressed therein, to be the assignment in trust for the use of all the creditors, and one dollar to each of them in hand paid. The charge of the court below admits, that one may release a debt without consideration, if he meant so to do. The party’s intention must be collected from the expressions he has made use of, and in this instance, Hutton has released by most comprehensive words, to Coe & Son, “ all actions, « and causes of action and demands, from the beginning of « the world.” A release may certainly operate with effect, although the releaser could support no action at the time. A covenant of warranty may be released before eviction. Co. Litt. 365. 392. The principles established in Scott and others, v. Lifford. 1 Campb. 249, strongly apply to the case before us. And it was there determined, that a general release by a creditor, would be a bar to a subsequent recovery, although the party could not sustain an action at the time of giving the release.

I am of opinion, that the judgment below be reversed, and U new trial be awarded.

BracKenridge J. concurred.

Judgment reversed, and a venire de novo awarded.  