
    [Chambersburg,
    October 17, 1823.]
    BRINDLE, and another against M'ILVAINE.
    IN ERROR.
    Where grants are made of the same land to contending claimants with general u arranty, the widow of the grantor is a witness in an ejectment by one against the other, for her interests are in equilibrio.
    The declaration of the obligee of a bond before assignment, as to his being paid the amount, are evidence in a suit to recover land in consideration of which the bond was given, brought against one holding the land by deed from the obligee of the bond, and holding the bond also by assignment.
    If the defendant give in evidence a verdict and judgment in a former suit respecting-the land in controversy to which the. plaintiff was party, the plaintiff may show that the evidence given in the present cause was not known or produced. Evidence is not admissible to show the general character of a witness for drunkenness.
    [For the former reports of this case see 7 Serg. fy Rawle, 345, and 9 Serg. fy Rawle, 74. J
    This was a writ of error to the court of Common Pleas of Franklin county, a verdict and judgment having been there rendered in favour of the defendant in error the plaintiff below.
    It was an ejectment for 25 acres of land in Franklin county-brought against George Brindle and John Brotherton, by Elizabeth MiHvaine, the plaintiff below who having died subsequently to the institution of the suit, Alexander M‘Ilvaine, her heir and devisee was substituted in her place. Both plaintiff and defendant claimed under Robert Haslet who was seised in fee of a large tract of land of which the 25 acres in dispute were part. On the 24th March, 1808, Robert Haslet, who married the daughter of Elizabeth M‘Ilvaine, executed a deed bv which he conveyed to the said Elizabeth the 25 acres in question in fee in consideration of ¿0325 to be paid by her, with a covenant of general warranty; and on the same day she gave him her bond in the penalty of 2000 dollars with the following conditions, viz. that the said Elizabeth should pay to the said Haslet the sum of ¿0325, on the day next following the date of the bond, and also, “that she should well and truly allow and permit the said Robert Haslet to sell and convey a certain piece of land containing 25 acres, for which the said above sum is the consideration, provided the said Robert shall-think proper to sell the residue of the said tract of land, and he the said Robert agreeing to allow the said Elizabeth the advance of price on the said piece of land, for which he may sell the land.” The deed to E. M‘Ilvaine was not recorded till the 1st October, 1810. The possession was not delivered to her but retained by Haslet, who on the 21st October, 1808, entered into articles of agreement with John Brotherton, one of the defendants,for thesale of the whole tract, containing about 178 acres, and includingthe25acres for the sum of 4,800 dollars in money, and 100 acres of other land to be conveyed by Haslet to Brotherton. The bond from E. M‘Ilvaine to Haslet, was put into the possession of Brotherton, but at what time did not appear. On the 31st March, 1817, Has-let, executed a deed of conveyance to Brotherton, in pursuance of the articles of agreement, with a covenant of general warranty. The deed was in Haslet’s own name and he took no notice of any power derived from E. M‘Ilvaine. Brindle the other defendant claimed under Brotherton.
    
    The plaintiff having given in evidence a release from Mary Has-let, (daughter to E. Mllvaine, and wife of Robert Haslet desceased) to Alexander M‘Ilvaine, of all her interest under the will of her mother, offered her as a witness, but the defendants objected to her competency on the ground of the general warranty contained in the deed from R. Haslet, and the said Mary his wife to E. M‘Ilvaine. The court overruled the objection, and admitted her as a witness, and the defendants excepted.
    After some evidence given by Mary Haslet, the plaintiff asked her whether she had heard E. M‘ Ilvaine, say to R. Haslet, in reference to a settlement between them before the year 1817, any thing as to her having paid or overpaid the purchase money of the land, and if so, what was his reply to her. To this question the defendants objected, but the court overruled the objection, stating, that the offer was virtually to'show, by the declarations of the obligor to the obligee, the payment of a bond: the right to receive payment included the right to give an acquittance: an acquitance might be by parol or in writing, and they therefore saw no objection to the evidence. The defendants excepted to this opinion.
    The defendants having given in evidence the record of an ejectment brought by E. M‘ Ilvaine against John Hostler, to JLugust term, 1816, in the Court of Common Pleas of Franklin county, the plaintiff offered to prove by James Dunlop, Esq. that on that trial the plaintiff did not attend, and that the evidence given on the present trial, of Haslet’s declaration as to the money due on the bond being paid, was not known to the plaintiff or produced. This evidence was also objected to by the defendants, admitted by the court, and excepted to by the defendants.
    The defendants offered to prove the general character of Mary Haslet, (a-witness for the plaintiff) for di’unkenness: but the court, on the objection of the plaintiff, rejected the evidence, and sealed another bill of exceptions.
    
      Brown and S. Riddle, for the plaintiffs.
    
      Chambers, for the defendant.
   The opinion of the court was delivered by

Gibson, J.

Between the ease as now presented and the report of it on a former occasion in 7 Serg. & Rawle, 345, there is no diférence in the facts material to the points in controversy, except that it appears the deed from Haslet to Elisabeth M‘ Ilvaine, as well as his deed to Brotherton, contains a covenant of general warranty; and it does not appear at what time the bond from Mrs. 3I‘Ilvaine to Haslet, was delivered by him to Brotherton.

Mary Haslet the widow of the grantor, who has an interest in his estate under the statute of distribution, was called as a witness on the part of the plaintiff below, and objected to on the ground of interest; and it is contended here that by facilitating a recovery in this action, she conduced to release her husband’s estate from the covenant of warranty to the plaintiff. But by the recovery, the estate is on the other hand, subjected to the covenant of Brother-ton: so that whatever interest she had was exactly in equilibrio, and the court was therefore right in not suffering the objection to prevail.

The first time this cause was before us, it was held that the plaintiff was not entitled to recover without proof of having paid the purchase money for which the bond was given; and to prove that fact he proposed to examine Mary Haslet, the witness just mentioned, with respect to her having heard Mrs. MiIlvaine, in conversation with Haslet respecting a settlement of their accounts, previous to the year 1817, assert that she had over paid him; and also to examine her as to his reply. This was objected to, but the court allowed the questions to be put. Had it appeared that Has-lets’ interest in the bond had been vested in Brotherton by assignment or even by delivery before this conversation, the evidence would have been incompetent; for nothing is more clear than that Haslet under that state of the facts could not by any act of his, have prejudiced the interest of Brotherton. But while he continued to be the owner of the security for the unpaid purchase mdney the equity which prevented Mrs. MlIlvaine, or those claiming under her, from calling for the possession, was personal to himself; although his grantee might avail himself of it to show that the plaintiff was not entitled to the possession against Haslet himself, and consequently those claiming under him. It is therefore immaterial that the declarations were made after Haslet had conveyed the land to Brotherton. The bond would not necessarily pass along with the land; and the equity which arose entirely from the non-payment of the purchase money lay with the person who was entitled to receive. He might therefore give an acquittance of the debt or extinguish the equity in any way he should think proper. Brotherton could not insist that Haslet- should be satisfied with nothing less than actual payment of the whole sum; nor shelter himself under Haslet’s wing longer than the latter might choose to permit; and when Haslet thought proper to say he was satisfied the equity which protected Brotherton was at an end. All that the plaintiff had to do, therefore, was to show that Haslet was satisfied; and, surely, to do this Haslets own declarations were competent. It would as I have said, be otherwise with respect to declarations of the obligee after he had ceased to be the owner of the bond, for the equity arising from the ownership of the debt having passed from him, would be no longer subject to his controul. But here it did not appear that Brotherton at the time when the declarations are said to have been made, had become the legal or equitable owner of the bond; but if that were even doubtful the court might might properly receive such evidence, submitting to the jury to determine that fact, and directing them to give to the evidence its appropriate effect or to disregard it altogether, as the event should turn out.

The defendants having given in evidence the record of a verdict and judgment against Mrs. MiIlvaine in an ejectment between her and one Hostler, for the land in question, the plaintiff was permitted to show that on the trial of that issue the evidence as given in this .cause was neither known nor produced. This had a direct tendency to take off the effect of the verdict, and it is difficult to find any thing like a plausible objection against its competency.

The defendants offered to give in evidence the general character of the witness Mary Haslet, for drunkenness. This the court refused to permit, stating at the same time that her character for veracity might be impeached. In supported of the evidence it is said that intemperance may not only impair the memory but weaken the perception of truth in the moral faculties, of the mind. It often does so. But the question is not whether intemperance may not be given in evidence, but whether it must be proved by direct evidence of the fact itself or only by evidence of general reputation of the fact. That kind of depravity which renders aman unworthy of belief, and which is proved not by particular instances, but by general reputation is of a moral kind, and is evinced by a variety of acts and by a long course of general bad conduct, the particular instances of which if they were not inadmissible for other reasons, could not in the nature of things be expected to be treasured up in the recollection of witnesses and spoken of in detail to enable a jury to draw their own conclusions; and therefore an inference of moral destitution drawn from this source by the public at large, which is nothing else than general reputation, is not secondary but the best evidence of the fact, of which the nature of the case is susceptible. But the causes of physical depravity of the mental faculties are susceptible of a particular description by those who have witnessed them, and are to be proved by the ordinary evidence of any other fact, leaving the jury to judge for themselves of their consequences and the extent of their operations. No one will pretend that general reputation of a witness having been attacked by paralysis, which in every instance, perhaps, impairs the memory in a greater or less degree, would be competent; although direct evidence might undoubtedly be given of it by a witness who of his own knowledge could speak to the fact. When intemperance has led as it sometimes does to a destitution of moral principles, and which in turn has led to a course of conduct inconsistent with all honesty and integrity, the character of a witness thus actually formed may be proved by general reputation, as in any other case without regard to the cause which produced it. That is one thing; but proof by general reputation of the existence of causes that might or might not lead to such a result is another. Here the offer was not to prove the fact of intemperance by direct evidence; but to show the general character of the witness as to drunkenness; and I am clearly of opinion that such evidence was inadmissible.

Judgment affirmed.  