
    [Lascaster,
    June 7, 1824.]
    SWAN against SCOTT.
    IN ERROR.
    If an appeal from an award of arbitrators be withdrawn, the award becomes an absolute judgment.
    The test, whether a demand connected with an illegal transaction can be enforced; at law, is, whether the plaintiff requires the aid of the illegal transaction to esta-' blish his case.
    A. obtained an award off arbitrators against B., founded on an illegal lottery transaction, from which B. appealed. He afterwards withdrew the appeal, and on • the same day gave A. his bond, in satisfaction of the award, and A. entered satisfaction on the record. In a.suit brought upon this bond against B. it was. held, that he could not go beyond the* award, and show, that the demand for which it was obtained, originated in an illegal transaction. A receipt given anterior to the award, and which had not been allowed by the arbitrators, cannot be given in evidence in an action on the bond, to show part-payment.
    A witness, having proved that an agreement in writing (which was proved to have been destroyed,) had been entered into between the plaintiff and himself relative to the compensation to bo given to the plaintiff for his services in conducting-a land lottery, which compensation the defendant had undertaken to pay, on receiving a transfer of the interest of the witness, in the lottery, the defendant proposed to ask him, whether if the lots had been sold to persons unable to pay for them, he would have considered himself bound to pay the defendant, the amount of the compensation? Held to be inadmissible, because, the answer would not tend to prove the contents of the agreement; but merely show what lie believed he would have done, on a certain event.
    An offer to pay an award of arbitrators, within the time allowed for an appeal, partly in bonds and partly in money, is not in the nature of a compromise, but a mode of payment; and therefore, in an action on a bond, given in satisfaction of the award, such offer may be given in evidence to show, an acknowledgment of the validity of the debt.
    It is also evidence to remove an imputation of fraud in obtaining the bond. If from the testimony, it is doubtful, whether such oiler were made, as a compromise, or a mode of payment, it is proper for the court to leave it to the jury to determine, with what view, the offer was made.
    In the District Court for the city and county of Lancaster, to which this was a writ of error, Joshua Scott brought an action of debt on a bond, conditioned for the payment of three thousand dollars, against John Swan, who pleaded payment with leave, &e. and gave the following notice of special matter.
    “ That the consideration of the bond on which suit is brought is illegal, it being given for services rendered by the plaintiff, in laying out, planning, surveying, selling tickets, &c. in a certain, lottery, unauthorised by law, in a certain town, called, and known, by the name of Portsmouth, in the county of Dauphin: That the plaintiff was well acquainted with its being a lottery transaction, contrary to law: That he was a principal adyiser, director, and assistant in said lottery, and that he was present, aiding, and assisting at the time of the drawing of the lottery, by which the lots were distributed. The defendant also means to prove, that the plaintiff was a partner in this lottery transaction: That the plaintiff agreed to sell a number of tickets, and guarantee their payment: That he did sell them, but that the purchasers refused to pay, on account of its being illegal, by which means the defendanl sustained great losses: That the defendant has been much damaged, in consequence of the refusal of the purchasers of tickets, to pay him for the same.
    “ The defendant also means to prove, that the said Joshua Scott has been amply paid for all his services.
    “ He will also give in evidence the following payments and disbursements, viz. (here follows a statement of various sums, amounting together to one thousand three hundred and thirty-eight dollars and thirty-three cents, alleged to have been paid and disbursed at various times, from the 27th of Jlpril 1814, to the 3d of Jlpril 1820.)
    “The defendant also means to prove,that it was by the persuasion of Joshua Scott, and George Fisher, that he became concerned in this business.”
    It appeared that a suit had been brought in the Common Pleas of Lancaster county to January Term, 1817, by Scott against Swan, in which a statement of the plaintiff’s cause of action was filed in these words.
    “ John Swan, the defendant, on the 12th of May 1814, duly executed and delivered to the plaintiff his certain instrument of writing, of the tenor following that is to say, “ Settled this 12th day of May, A. D. 1814, with Joshua Scott, for his compensation, and for deeds in the town of Portsmouth, and there is due from me to Scott, three thousand three hundred dollars, which I engage to pay as follows; one half thereof on the first day of Abvember next, and the remaining half on the first day of November 1815,”
    (Signed) . JOHN SWAN,
    which said sum of three thousand three hundred dollars, the said John Swan hath not paid, nor any part thereof, according to the said insti'ument of writing, but the same to pay,” &c. This cause was submitted to the decision of arbitrators under the act of 1810, who on the 4th of February 1813, filed an award in favour of the plaintiff for three thousand and thirty-two dollars and sixty nine cents. From this award the defendant entered an appeal; and on the 22d of May 1818, by writing filed, under his hand and seal, withdrew the appeal. On the same day, Scott, the plaintiff in that action, acknowledged on the record, to have received full satisfaction for the amount of the award of the arbitrators. The bond upon which the present suit was- brought, which was dated on the same day, was alleged by the plaintiff to have been received in satisfaction of the award.
    On the trial of the principal case, after the plaintiff had given in evidence the bond on which the suit was founded, the defendant produced the. deposition of George Fisher, the following parts of which were read in evidence, without opposition, viz. That some time in the fall of 1813, the affirmant, contracted with the plaintiff, Scott, to lay out a town on his farm at the junction of the Swatara with the Susquehannah: That as nearly as he could recollect, not having the contract then in his possession, the terms were, that the plaintiff was to procure the defendant, Swan, to join him, Fisher, or to lend his name or aid or both, to effect the object of the contract, to whom a deed was to be executed to énable him to give titles to the purchasers; and that for laying outthe town and disposing of the lots and paying all incidental expenses, the affirmantwas to pay the plaintiff three thousand dollars: That the town was laid out, and the lots all disposed of by Scott, the plaintiff, and his agents, about the first oidlpril 1814 : That the affirmant went to Lancaster to close this transaction, and settled with Swan the defendant, in the presence of Scott, the plaintiff, and took his bonds and notes for twenty thousand dollars, on an assignment under his hand and seal, of all the lots and notes mentioned in the agreement, there executed between the affirmant and Swan, the defendant, a copy of which was annexed: That at the time this transaction was completed, it was perfectly-understood between the affirmant, the plaintiff, and the defendant, that the defendant was to pay the plaintiff the three thousand dollars stipulated in the aforesaid agreement made between the affirm-ant and the plaintiff: That the plaintiff and defendant, perfectly understood, this, both consented, and no objection was made by either party: That the affirmant and the plaintiff had fixed three thousand dollars as the plaintiff’s compensation for his services, before he had any communication or contract with the defendant, and that he should have considered himself bound to pay this sum to the plaintiff, on the accomplishment of the object contemplated by both, at the time he entered into the contract with the plaintiff; but that when he settled with the defendant, he considered himself as having nothing further to do with either the plaintiff or the defendant, and so it was understood by them: That the defendant then-assumed to pay the plaintiff'three thousand dollars, and the defendant agreed to accept him for that sum, and discharged the affirmant from any further liability: That the plaintiff had laid out the town, sold the lots, and taken notes from the purchasers, which he was prepared to deliver over to the affirmant, before he finally contracted with the defendant, all which was known to the defendant, when the contract was closed, and the list of purchasers exhibited to him, and nothing remained to be done on the part of the plaintiff, to entitle him to the three thousand dollars from the defendant. In answer to a question put to him by the defendant, the affirmant said, that the agreement between the plaintiff and himself was reduced to writing by the latter, signed by him, and then sent to the plaintiff at Lancaster,' but whether it was signed by hiift or not, the affirmant did not recollect: Thé plaintiff acted under it, and the affirmant did not remember to have seen it since he forwarded it to the plaintiff. The following question Was also put by ,the defendant: If the lots had hem sold to persons unable 
      
      to pay for them, would you have considered yourself bound to pay Mr. Scott the sum of three thousand dollars ? The affirmant answered thus: This was a concern amounting to fifty thousand, dollars and upwards. It was understood that the sales were not to be made to persons who were unable to pay for, the lots/ and if a considerable portion of them had been so sold, the affirmant would not have considered himself bound by the terms of his contract, to pay the plaintiff the full amount of three thousand dollars ; and if they had all been sold to persons insolvent, he certainly would not have been paid the three thousand dollars or any part of it. The counsel for the plaintiff objected to the question and answer above stated, being read in evidence; upon which the counsel for the defendant, gave in evidence a notice in writing, served on the plaintiff, to produce certain papers, particularly an agreement between George Fisher and Joshua Scott, executed in the summer or autumn of 1813. The court, however, overruled the question and answer objected to, and at the request of the counsel for the defendant, sealed a bill of exceptions.
    
      Tobias Miller was then called, who swore that he was one of the arbitrators in this cause: That Scott observed, that he was employed by Mr. Fisher to lay out the town and make the deeds for the lots, and that this bond was given to him for his services: That something was said about his selling the tickets for them, but the witness did not recollect that he said he was to be answerable for the tickets he was to sell: That he (Scott) said something about a judgment he had against him (Swan) before. Henry Bear then testified that he was present at the drawing of the lottery for the town of Portsmouth, at Coopers; That many were present; ticket holders: That Scott was there, but the witness did not recollect what he was doing there, nor did he recollect- Scott’s selling any tickets that day; but he sold them before: That he did not recollect what Scott said, except at the arbitration, when he said that he, Swan,-owed him this money for laying out the town, and selling the lots. A number of lottery notes were then given in evidence, of various dates, all executed to John Swan, and witnessed by Joshua Scott. Bear was then cross-examined, and said that before this bond was given, Swan sent him and Miller to give their notes to Scott; before any arbitration: That they offered their notes, but Scott made some excuse, and would not accept them: That the witness sold fifteen or twenty tickets in the lottery: That he was employed first by Swan, and afterwards spoken to, both by Scott and Fisher: That Swan said he had bought Fisher out, for twenty thousand dollars. Joshua Scott then swore,, that the agreement which George Fisher swore he had sent to him, had been destroyed. The counsel for the defendant then again offered in evidence, the question and answer already referred to; but the court again rejected it, and another bill of exceptions was tendered and sealed.
    
      In the course of the trial, the plaintiff called Henry Carpenter as a witness, who stated that he was one of the referees: That Swan was before them,, and proffered some bonds of other men to Scott in liquidation of his claim, which he did not accept. After some further testimony not material, the counsel for the plaintiff offered to prove by Mr. Carpenter, That on the evening of the day after the award, or a day or two after, the defendant requested the witness to call on Mr. Scott and offer him some bonds and money in liquidation of the award: That he did so, and Mr. Scott refused to accept the offer. The admission of this evidence was objected to by the counsel for the defendant; but the court admitted it, and sealed a third bill of exceptions. ^
    Immediately after the testimony of Henry Bear had been given, the counsel for the defendant, offered to p^jve, by the receipts of Joshua Scott, admitted to have been executed by him, after, the date of the contract referred to in the deposition of George Fisher, that the said John Swan had paid, on the said contract, to the said Joshua Scott, the sum of 1338 dollars and 33 cents, before the said Scott obtained from the said Swan,the bond now in suit. The counsel for the plaintiff having objected to the admission of this evidence, it was rejected by the court, and a fourth bill of exceptions was tendered by the counsel-for the defendant.
    Before the court delivered their general charge, the counsel for the defendant, submitted to them five points, on which they requested them specifically to instruct the jury. To the answers of the court on the following, exceptions were taken.
    
      2d Point. That a lottery for the disposal of land, is prohibited by the act of 17th February, 1762, and that if the jury believe that the original considération for which the bond was given, was services rendered by Joshua Scott-, the plaintiff, in laying out the town of Portsmouth into lots, for the purpose of making an illegal lottery, knowing that the lots were to be disposed of by way of lottery; in procuring John Swan, the defendant, to lend his name to sanction this illegal transaction; in selling lottery tickets, and acting as agent in drawing the said lottery, and in other matters connected therewith, then the consideration is illegal, and any promise, settlement or bond, founded upon it, either by George Fisher, or John Swan, cannot be enforced in a court of justice.
    ’ Jlnswer. It is now settled, that land lotteries are prohibited by the act of the 17th February, 1762, and the act extends as well to the agent as the principal; to all persons aiding and assisting, or in any wise concerned jn managing, conducting or carrying on such lotteries. And, between, Mr. Fisher and Mr. Scott, so far as Mr. Scott was concerned in carrying on this lottery, and selling the tickets, he would have to depend on the honour of his employer, for compensation, for the law would not lend him its aid, to recover such compensation; for I take it to be settled by numerous decisions, the latter of which entirely overruled, Faikneyv. Reynous in Burrow, cited by the plaintiff’s counsel, that an agent employed in the management of an illegal contract, cannot recover any compensation for his labour, from the person at whose request it was performed, and who had the benefit of it. Nor could he recover any compensation for services rendered in procuring others to become agents or parties to an illegal transaction. But with respect to the services rendered by Mr. Scott, in surveying the land and cutting it up into parcels, at the request of Mr. Fisher, 1 can see nothing illegal in tí-at. A man may survey and divide his property in any manner he pleases; the surveyor would, in my opinion, be clearly entitled to recover for such services. The latter part of the point, will require a distinct consideration, arisingon other points.
    
      3d Point. That the contract on which this suit is brought, is entire, and if any part- of an entire contract be void, the whole is void.
    
      Answer. It is settled that where a contract is entire, if it be founded on two considerations, one legal and the other illegal, the whole is void. No doubt this contract is entire; but the question still remains for the jury to determine, on the whole case, whether any part of the contract be illegal; or supposing it to have been so originally, whether the defendant is in a situation to take advantage of it.
    
      4th Point. That if the consideration of the original contract or any part thereof be illegal, the compromise alleged to have been made between the parties, in consequence of which the bond on which this suit is founded, was given, will not prevent the defendant from availing himself of the illegality of the original consideration, and avoiding the contract.
    
      Answer. As to this point, the court have already expressed an opinion, that an offermade pending a suit, ifnotacceded to, cannot after-wards be made use of in evidence againstthe party offering it, by way compromise. Therefore what was said by Henry Carpenter, as to offers not acceded to, with a view to a compromise, ought not to have any weight, and should not be noticed by the jury. But as to the acts and declarations of the defendant, after the decision of the arbitrators, when the controversy was settled, except only as subject to an appeal, and as to the mode of paying the sum awarded, and not as a compromise of the suit, they were, in my opinion, clearly good evidence.
    After having instructed the jury, on the points submitted to him, the judge charged the jury in the following manner:
    There has been much controversy, as to the.original transaction between Mr. Fisher and Mr. Scott, and the compensation, agreed upon between them, for services rendered by Scott to Fisher. There was no dispute between Fisher and Scott as to this consideration. Swan was no party to it, and Fisher admits that the whole sum was due and payable. All these services were rendered priorto the purchase by Swan. If this purchase was induced by any fraud in Mr. Scott upon Swan, as suggested in the first point, and he was induced to assume the payment of the 3000 dollars, under the influence of such fraud, it would invalidate the transaction. But if Scott had nothing to do with this contract, and there was no fraud on his part, and the debt due from Fisher to Scott, was assumed by Swan, as part of the consideration of the purchasé, by his agreement, and Scott discharged Fisher and accepted Swan as his debtor, in his stead, I think under all the circumstances, Swan was bound to pay the debt, and cannot by way of defence, enter into the consideration of the- debt between Fisher and Scott. I am unable to point my finger to any part of tbe evidence, which affects Scott as to this purchase. There must be some evidence of it, and the jury must patiently examine the evidence, and judge for themselves, as to rasult of it.
    Mr. Swan not having discharged this debt according to his promise, it appears a suit was brought, which suit was referred under the act of assembly. This was the time for Mr. Scott to make his defénce, and to set up any want of consideration, or fraud, which would have invalidated it. It appears, however, that the parties were heard before a competent legal tribupal, and an award made, and filed, according to law. This, by the act of assembly, is a judgment, subject only to be reversed on an appeal. The amount of debt yyas fixed by this award; if not appealed from in a certain number of days, it would be conclusive; if appealed from, and the appeal be withdrawn, the judgment is final and conclusive, and is then only tangible by writ of error, for'error in the record; not as to the merits. If no appeal or writ of error be taken out, execution issues on it of course. The amount of debt is fixed. An award under the arbitration act, has no resemblance to the case so strongly put, by the defendant’s counsel, of an interlocutory judgment, which determines nothing. It requires a writ of inquiry to ascertain the debt or damages, which must be returned to the court, to receive their final decision, before which it does not pass in remjudicatam; but if returned, and final judgment be entered on it, it-then becomes final. It puts the parties at rest, if not reversed on writ of error. The consideration of the debt cannot afterwards be inquired into in any collateral suit. But in the case put, where a compromise took place after the inquisition taken, but not returned, it was held not to be a judgment of the court, and that the fraudulent transaction of the party could be inquired into;
    There must be a time when there shall be an end of controversy. Judgments may be and often are, founded upon erroneous reasoning; but as the subject, wherever it rests, must ultimately be subject to human infirmity, the imputation of such error, ought not to be regarded as an impeachment of the authority, unless applied in its direct connection, according to the regular course of an appellate procedure. It is true there was an appeal in this case, but it was withdrawn, which amounted to an agreement, that the judgment should be final and conclusive. The withdrawing of the appeal, and the bond, were of the same date; which was the first act done, does not appear; but take them to be concurrent acts. What would have been the effect of the appeal, if it' had been prosecuted, cannot appear; but suppose it uncertain. The settlement of a doubtful controversy, is a good consideration for a promise, for the sake of peace. It is the interest of the commonwealth that there should be an end of law suits. I am, therefore, of opinion, that this agreement to settle their disputes, if not accomplished by' the means of fraud, and to withdraw the appeal, area good consideration for a bond; and the defendant having given the bond, to discharge the judgment, and satisfaction having been entered in pursuance of the agreement, he ought to pay it. I think the law, upon the whole ease, is with the plaintiff, and that fie is entitled to recover. The jury will, no doubt, examine the case for themselves, and will give such a verdict, as they may judges hall be most consistent with the evidence, and the law.
    The cause ivas argued in this court by Rogers and Buchanan, for the plaintiffs in error,
    who cited, Mitchell v. Smith, I Binn. 110,120. 14 Mass. Rep. 377. rfct of 20th March, 1810,, sec. 10. Purd. Dig. 14. 1 Powell on Cont. 354. 2 Id. 184. 5 ' Serg. fy Rawle, 141, 1 Sm. L- 346, 247. 4 Serg. fy Rawle 151. 1 Ba. Jib. 272 to 2Í6. 1 Phill. Ev. 224.
    
      Fuller and Hopkins, for the defendant in error, cited,
    1 Phill. Ev. 82. 2 Id. 7. 2 Serg. <§■ Rawle, 354. W-hart. Dig. 248. pi. 313, 314, 323. 8 Johns. 39. 1 Saund. 211, b. note. 2 Com. on Cont. 113. Faikney v. Reynous, 4 Burr. 2069. 1 Bac. Jib. 262. King v. Sloan, 1 Sergt. Sr Rawle, 77. Cardesa v. Humes, 5 Serg. fy Rawle, 65. ■ 1 Phill. Ev. 242. Smith v. Lewis, 3 Johns. 157. Whiter. Ward, 9 Johns. 232. Whart. Dig. 170. pi. 14, 15. Id. 121. pi. 3. Id. 105. pi. 4. Williams v. M(Kelsey, Jidd. Rep. 56. 1 Ba. Jib. 257. Lady Herbert v. Earl of Powis, 1 Powell on Cont. 303. Livingston v. Hastie, 2 Caine’s Rep. 246. 3 Bl. Com. 24. 2 Fern. 14. Com. on Cont. 113.
   The opinion of the court was delivered by

Duncan, J.

The defence rested on this one principle: Could an inquiry be gone into with respect to the alleged illegal origin of the contract, between the parties, on which the settlement had been made, and which had been decided under the compulsory arbitration act, in favour of Scott’s claim? The effect of that proceeding, was the hinge on which the whole controversy turned. If we can look beyond the record, and go back to the first cause, then there is error; but if that is final, and concluded the right of the parties, the defence totally failed. It is contended on the one hand, most strenuously, that we can go to the fountain head, the illegal lottery, and if that is corrupt, it taints the whole stream; the stain never can be washed out; no confirmation, however solemn, can validate an illegal transaction, or purify a corrupt agreement; while on the other hand, it is as earnestly insisted on, that the matter of the legality of Scott’s demand, in satisfaction of which, this bond was given, has passed in rem judicatam, by the award, judgment, appeal, and withdrawing of the appeal, and satisfaction entered on the judgment by Scott.

If Swan had acquiesced in this award for twenty days, the judgment would have been final j-butthejudgmentremained, not withstanding the appeal, and when it "was withdrawn, Scott might have then issued his execution; the judgment became final, and I may add, irreversible; it fixed both parties; there was an end of the controversy. Hamilton’s 'Executors v. Moore, establishes this, which has been followed up in Brenner’s Case, in which the opinion was delivered by this court, and where the withdrawing the appeal by becoming nonsuit, was most disastrous to the plaintiff’s right. The appellant may renounce the privilege of appeal, by acquiescing in the award, and where he has entered it, may abandon it; the consequence is the same, the judgment ceases to be initiatory, suspensive or conditional; it becomes final, absolute, and unconditional. Nothing in a judicial record can be ,mpre conclusive, than a judgment on an award appealed from, and the appeal withdrawn. It has all the sanctity that any, the most solemn judgment can possess. The inviolability of judgments is an axiom .of the common law, its boast and its pride;,the protection of all rights, the security of life itself. The judgment of the law, like the hand of death, puts an end to all strife. Lord Coke, in his preface to his 8th Reports, laments the multiplicity of suits, in one and the same cause. He sa)7s, “Ofttimes there are verdicts on one side and on the other, and yet the plaintiff and defendant can come to no finite end, nor hold the possession in quiet, though it is often tried, and judged for either party:” and he adds, “In personal actions, concerning debts, goods-' and chattels, a recovery in bar in one action,- is a bar in another, and there is an end of the controversy. In real actions, for the freehold and inheritance, being of a higher and. worthier nature, and standing upon a greater variety of title, and difficulties in law, there could not be above two trials, or at most three, and that very rarely; and in the mean time, after one recovery, the possession rested in quiet.” This position of Lord Coke, with respect to actions for the realty, is not well founded, for a judgment in each species of action, is final for its own purpose and object, equally con-' elusive of its own subject matter, by way of bar to future litigation for the thing thereby decided. The judgment, which is the fruit of the action, follows the nature of the particular right claimed, which in the first action, as appears by the statement, was for services rendered respecting the town of Portsmouth. That judgmeni gave the plaintiff an ascertained right to the debt recovered, and the means of obtaining it; nor can it be at all material, that the defence there set up, was not precisely the same, as that now set up, because the defendant might have given in evidence every thing which he now offers;and if he did not, it was his own fault; he was permitted there to make his defence, he did make it, and failed. Nace and others v. Hollenbach, 1 Serg. & Rawle, 540. Kelller v. Jones, 4 Binn. 61, 72.

The fallacy of the argument is, in supposing the settlement and its consideration, to be the foundation of this action: whereas, it is on a bond, the consideration of which, was the judgment; that judgment brought the parties to a finite end. The plaintiff below did not claim through the medium of an illegal transaction, but through a final judgment. The test, whether a demand connected with an illegal transaction, is capable of being enforced at law, is, whether the plaintiff requires the aid of the illegal transaction, to establish his case. If a plaintiff cannot open his case, without showing that he has broken the law, a court'will not assist him,, whatever his claims injustice may be upon the defendant; and if the illegality be malum prohibitum only, the plaintiff may recover, unless it be directly on the forbidden contract; a bond, the consideration of which, grows out of an illegal transaction; there the illegal consideration is the sole basis of the bond,and there can be no recovery; but if a judgment has been rendered on that bond, and another bond is given in satisfaction of it, there the judgment, which must be legal, is the consideration, and the obligor is precluded from entering into the illegality of the original transaction. This is clearly established in the case of Faikney v. Reynous, the principle of .which, though doubted by a high authority, has stood its ground whenever it has been questioned. The conclusion is, that if a verdict be founded on any fact or title, distinctly put in issue, such verdict is an estoppel between the same parties, in respect to the same fact. The plaintiff’s services at Portsmouth, were put in issue in the first action, and the value ascertained by the award and judgment, which in this respect are of as conclusive a nature as the finding of a jury, and judgment on it. It is impossible to conceal the drift of the defence: the defendant had no case, unless hevvas-let in to impeach the judgment of the arbitrators, to overhaul in this action, the merits of the judgment in an original action between the same parties, on the very same issue. To do this, would be unsettling foundations, a thing new and unheard of in our law. The rule is as ancient as the law itself, that the merits of a judgment cannot be overhauled by an original suit, either at, law or in equity; till that judgment is set aside or reversed, it is conclusive as to the subject matter of it, to all intents and purposes. It is á vain attempt to distinguish between the judgment and the grounds of it. To say that the merits of a case determined by arbitrators, in which there has been an appeal, and the appeal withdrawn, never can be brought in question again, in any shape whatever; and yet to say that the plaintiff ought not, injustice, to recover the money on it, is not to me intelligible. If this defence should prevail, if Swan had paid the money to Scott, it could be recovered back; and if he was to declare specially, he must allege, that the defendant had-reeovered a judgment against him, which he ought not to have done,whereby he was injured: this is making the judgment a part of the gravamen. So, here the defendant says, in answer to this bond, it is founded on a judgment, which you have recovered, gnd which you ought not to have recovered. This judgment created a duty, for the recovery of which, the plaintiff might have brought-an action of debt, and the substitution of this bond, and the action on it, are in fact, an action of debt to recover the amount of this judgment. Much has been said as to the Chancery powers of this court; but'if we were clothed with all the extraox-dinary jurisdiction of a Court of Chancery, and we ought to exercise Chancery powers, so far as the forms of a coui-t of common law will admit; yet a Chancellor could not relieve against this award and judgment, for Chancery in no case, can relieve against a fraud, which a party might-have shown, but omitted to show on a trial; for if this could be done, -a suit would be interminable, the parties never could bring the controversy to a finite end. Chancery is not unbound by any rule. A bill of review, to which this defence has been compared, must be for some matter discovered.since the last bill. There can be no mode in which the award of arbitrators ca'n be reviewed, but by appeal: the defendant did appeal, but he finally withdrew his appeal; the judgment became final. A compromise under an interlocutory judgment of an illegal transaction,.is quite wide of this case, which did not partake of any thing interlocutory; but a bond given and received in satisfaction and payment of a final judgment. There was no attempt to prove this was brought about by any fraud of Scott; but if there had been any such evidence, it was fairly left to the jury, and the jury have negatived the fraud. The special notice is silent, contains no suggestion of this kind. .The court were well justified in charging the jury, on the whole case, that the law was with the plaintiff, and he ought to recover, having previously instructed them as to the effect of a fraud in obtaining the bond.

-The first and second bills of exceptions, relate to the overruling of the answer of George Fisher, a: witness of the plaintiff in or-1ror. . The question itself, put by'him to -his own witness, was impropfer: If the tickets had been sold to persons unable to pay for the lots, would you have considered yourself bound to pay Mr, Scotty? The answer was, “that, it was understood, that sales were not-to be made to persons, who were unable to pay for the lots. And if a considerable portion of them Had been so sold, I would not hxve Considered myself bound by the contract, to have paid the full amount of 3,000 dollars; and if they had been all sold to persons insolvent, I would not have paid 'any part of it. ;5 Mr. Fisher was not asked to state his knowledge of the contents of any written instrument. His answer responds to the question; it is his understanding and consideration of what he would have done on certain events. It cannot be concluded from what Mr. Fisher states, that the contract contained any provision as to insolvencies. The question and answer to these interrogatories were properly suppressed. The third bill of exceptions, on first impression, seemed to contain a very serious objection; but considering how the matter stood, when the offer was made of the bonds, and some money in liquidation of the award, • the difficulty is removed. The sum had been ascertained by the award. The offer was not in the nature of compromise, but a mode of payment; a substitution of bonds in part, and money in part. The evidence was proper, in another point of view, to remove an imputation of fraud in obtaining this bond; to show that Swan offered other bonds, which were refused, and that Scott finally accepted his own bond in satisfaction of the judgment. It cannot be pretended, but this bond was the satisfaction which Scott acknowledged he had received as satisfaction and payment of his judgment debt. Besides, if there was any thing equivocal in the offer, or in the language of the witness, it was properly left to the jury to decide, whether it was an offer of compromise, or a proposition of payment of the sum awarded, in good bonds and money. And if the jury concluded it was not a proposition of payment, but an offer of compromise, they were cautioned to exclude it from their consideration, and give it no weight. This is notan unusual course, where the parol evidence is susceptible of different interpretations. I put a familiar instance, under the plea of the.statute of limitations: — A letter written by defendant to plaintiff’s attorney, on being served with the writ, couched in ambiguous terms, neither admitting or denying the debt, is to be left to a jury to draw their own inference, whether it amounts to an acknowledgment of the debt, so as to take it out of the statute of limitations. Ballcntync on Limitations. 195. Brown v. Campbell, 1 Serg. & Rawle, 180, where it was said, that if the expressions of the letter were doubtful, or it became necessary to refer to something extraneous, to understand it, it would be proper for the jury to consider, whether a promise might not be presumed. But I rest on this, that the*offer of the bonds and money was a position of payment.

The fourth bill of exceptions is involved in the general question. If the conclusion is right, that the award arid judgment preclude all inquiry, this receipt was properly rejected, being anterior to the judgment on the settlement. It cannot be admitted now to the defendant to claim a credit for it. It is offered as evidence of part payment, not allowed by arbitrators; but the award and judgment put a seal on the whole controversy, closed the same and estopped the parties.

To allow the receipt would be to disaffirm the judgment. That cannot be disaffirmed, but must stand. It is a very specious proposition, that it is against good conscience not to give credit for this payment. Whether it was allowed by the referees, or canvassed before them, and decided on, we cannot now inquire into. But it is not solid, and would open a wide door, if in every case of recovery before arbitrators, and judgment thereon, and money paid, the defendant could recover it back, in an action for money had and received, on an allegation, that a particular credit had not been allowed: it would destroy this tribunal; would render it a most litigous forum, and instead of a judgment being the end of strife, it would be but the beginning. It can never be made a question, that where a plaintiff has received money on an adverse judgment, and there is no other relation than debtor and creditor, the plaintiff can be considered as receiving the money for the use of the defendant; and it never can be, that .the same judgment shall create a duty for the recovery, upon which an action of debt would lie by the plaintiff, and a duty against him, for which an action for money had and received would lie. I speak now merely with relation to debtor and creditor; as between them it cannot be disputed, but that the judgment is final. It is therefore the opinion of the court, that the judgment be affirmed.

Judgment affirmed,  