
    Duncan against Findlay.
    
      Monday, October 16.
    and B. to C? thlee” drawn™ Virginia, and put ¡„ su¡t ¡„ agreement widchiTwM stipulated,that the said suits should be dis™sts of the defendants, in consideration of which, the gave to C. their joint and several note, ® ■^0a*n1[‘t0 tlle three notes tioned.'bear^roe^ay'with the agreement one yearfrom dat-ewas also *^ Bohemia be permitted, within twelve from the date of the new note, but not after, to shew either by judicial proceedings or by legal evidence satisfactory to C., that the said three notes were given without any legal or equitable consideration, or to establish any off-sels 5 but if the proceedings to establish a want and consideration, or payment in part or in whole of the said three notes were not commenced in twelve months, then the new note was to be paid without delay. Ifeld, that in a suit brought against B., on the new note, evidence of the consideration of the three original notes which had been filed of record in the Court in which suits were brought on them in Virginia, and that the defendant had in the presence of the plaintiff, applied for them at the office of the clerk of the said Court, who refused to deliver them, in consequence of their being part of the record, was inadmissible, although at the time of the execution of the said three notes, and ever since, both the plaintiff and defendant resided in Pennsylvania.
    If evidence be offered in so vague and uncertain a manner that it is impossible to know what it fo intended to prove, it ought to be rejected.
    In Error.
    TWO bills of exceptions were returned with the record of this case, on a writ of error to the Common Pleas of Franklin county, from which it appeared, that the plaintiff in error, Mathew Duncan, brought a suit against John Findlay, on a joint and several note given to him by William Findlay, John Find-lay, and John Findlay, dated 10th May, 1815, for 538 dollars 73 cents, payable May 10th, 181G, with interestfrom thedate. The defendant pleaded payment, with leave to give the special matter in evidence, to which the plaintiff replied non solvit, 7 . . 1 and thereupon issue was joined. On the prial the defendant gave in evidence, an agreement with the plaintiff, bearing date the same day with the note on which this suit was brought, . _ , , , , by which the plaintiff acknowledged, “ that the said note was given in consideration of three promissory notes from Ham Findlay and John Findlay, amounting to the sum of J , . , , ° , . , 538 dollars 73 cents, on which suits had been brought in the County Court of Shanandoah county in the State of Virginia, and agreed that the said suits should be dismissed at the cost of the defendants, and also, that the said William and John Findlay, should be permitted, within twelve months from the date of the note on which this suit is brought, but not after, to shew, either by judicial proceedings, or by legal evidence satisfactory to the plaintiff, that the three promissory „ . , . . 7 , , r . . , . . aforesaid, were given without any legal or equitable eration, or to establish any off sets, but provided that if the proceedings to establish a want of consideration or payment, f . . . _ , ... J m part or m whole, of the said three notes, were not menced in twelve months, then the note now in suit was t© be paid without further delay.”
    The plaintiff confessed that the note on which this suit was instituted, was executed in the'State of Virginia, at which time, and ever since, both the plaintiff and William Findlay,. resided in the State of Pennsylvania. The defendant then offered to give evidence of the consideration of the said three notes, filed of record in the County Court of Shanandoah, and that the defendant had, in the presence of the plaintiff, applied for the notes, at the office of the clerk of the Court, who refused to deliver them, alleging that they were part of the record. To this evidence the plaintiff objected, but the Court admitted it, and an exception was taken to their opinion.
    The plaintiff offered to prove, that property was given by him to William Findlay, deceased, subsequent to the date of the three notes above mentioned, which were the foundation of the note on which this suit was brought, and also rvhat took place on the trial of a cause in which Mathew Duncan was plaintiff^ and the administrators of William Findlay, defendants, tried in August, 1817, and the statements there exhibited by the counsel of both parties, and directed by the Court to be fled of record.” An objection being made to the admission of this evidence by the defendant’s counsel, the Court rejected it and sealed a second bill of exceptions.
    
      Crawford and Brown, for the plaintiff in error,
    insisted, 1. That whatever might have been the origin of the three notes in question, the defendant had no right, after the expiration of twelve months', to enter into the consideration of them. He was precluded from doing so by his own agreement, deliberately and solemnly entered into, by which he limited himself, as to all such enquiries, to that period. A bargain, though unreasonable, if afterwards .confirmed by a deliberate act, when the party is informed of every thing and there is neither fraud nor surprise, is binding. Cole v. Gibbons•, 3 P. Wms. 290. And if a note, obtained by duressj be afterwards ratified when the party is at liberty, chancery will not relieve against it. 3 P. Wms. 294. note. The parties could not have had in view the investigation of this matter in a suit to be brought on the last note, because as it was payable in a year, it could not be put in suit until that period had expired.
    2. The plaintiff ought to have been permitted to shew, that in another suit, brought on another note arising out of the same transaction, he had recovered nothing. This was very material, as the defendant should not be suffered to take advantage of the same defence in two different actions, by which means the plaintiff would get nothing for his property.
    
      Chambers and Riddle, for the defendant in error,
    argued that want of consideration, or any other equitable defence, might be given in evidence by the law of Pennsylvania, and that no confirmation of a contract originally without consideration, would prevent the defendant from shewing the absence of a consideration. The defendant reserved to himself the privilege of shewing judicially that the thrée notes which formed the foundation of the one now in suit, were given without consideration. Had the parties resided in Virginia, where the note was drawn, and with a view to the laws of which it was probably made, this might have been done by the institution of a suit in Chancery. Situated however as he was, it was impossible for the plaintiff to shew judicially, what by his agreement with the plaintiff, he had ■reserved to himself of the right of shewing. The intent of the compromise evidently was, that the consideration of the three notes which were put in suit in Virginia, should be contested in a suit to be brought in Pennsylvania. This was the spirit of the agreement, and the parties both living in Pennsylvania, where there is no court of chancery, it was impossible for the defendant to bring any suit in which the want of consideration could be shewn. He was therefore compelled to wait until the plaintiff gave him an opportunity of doing so by bringing suit himself.
    With respect to the second bill of exceptions, it certainly •could not have been proper to shew the consideration of a note, by evidence of property passing from the plaintiff to the defendant, after the note was given ; for that was a different transaction.
    The proposal to give evidence of what took place at a former trial, was much too vague, and .the Court were undoubtedly right in refusing to receive it. The matters intended to be proved, should have been specified. The only matters specified, were the statements made by the counsel, and these were certainly inadmissible, as that suit was brought against the administrators of William Findlay, and the present defendant was not a party to it.
   The Court’s opinion was delivered by

Txx.ghman C. J.

The agreement was plain and positive, that the defendant might enter into the consideration of the three notes which were in suit in Virginia, in twelve months, and not afterwards ; and it was equally plain, that any judicial proceedings for the investigation of that consideration, ■ were to be instituted by the defendant, because the note on which the present action is founded, being payable at the end of twelve months, no suit could be commenced on it in less than twelve months. The agreement was a fair one. The plaintiff was to withdraw his suits in Virginia, in consideration of which he received a new note, with security, on condition that the defendant should have a reasonable and specified time to shew that the said three notes ought not to have been paid, on shewing which he was to be relieved from the new note. The defendant gave no evidence of his having offered any proof to the plaintiff that the three notes ought not to have been paid, or of his having commenced any judicial proceeding for the purpose of shewing the want of consideration of those notes.—Why then should he be let into evidence on that subject, in this suit, after the time stipulated for that purpose ? Because, says the defendant, it was impossible for me to institute any legal proceeding in the State of Pennsylvania, although it might have been done, if the parties had resided in Virginia, where there is a court of chancery. If there were really an impossibility in the defendant’s maintaining anyjudicial proceeding, and he had done every thing which he ought to have done, and it was in his power to do, towards satisfying the plaintiff that these three notes ought not to have been paid, I should agree with his counsel, that he ought to have been let into the evidence offered in this suit. But although very inconvenient, a judicial proceeding does not appear to have been impossible. The three promissory notes being deposited in a Virginia Court, a suit in chancery might have been instituted there, for the purpose of enquiring into their consideration. It is true that the plaintiff in this suit, who would have been defendant in equity, lived out of the jurisdiction of the Virginia Court of Chancery—but I think it probable, (although I will not assert it,) that by the law of that State, the bill would have been taken pro confesso, if Mr. Duncan, on notice, had refused to appear to it. The note now in suit, having been executed in Virginia, accompanied by the agreement bearing the same date, the parties seem to have looked to the law of Virginia—or at least the defendant took upon himself to find some mode of instituting judicial proceedings within twelve months, to answer his purpose. Whether or not the Courts of Pennsylvania, would have sustained a special action on the case, on Findlay’s shewing that he had offered satisfactory evidence to Mr. Duncan, that the three notes were given without consideration, or that part of the money due on them had been paid, or that there was an off-set as to part, and that he had tendered the residue to the said Duncan, and demanded of him to give up the note on which this suit is instituted, but he had refused to give it up, I will not undertake positively to say*—but I am strongly of opinion, that such a suit might have been supported, if it could be made to appear that the defendant could have no redress in the court of chancery of Virginia. But supposing that the defendant could have had no remedy by judicial proceedings, either in Virginia or this State, (which is putting the matter in the strongest point of view for him,) he ought, in order to have availed himself of the true intent of his agreement, to have gone to the plaintiff within the twelve months, and laid before him the evidence of want of consideration, payment, or off-set. Had he done this, and the matter shewn to the plaintiff had been such as ought in reason to have satisfied him, there would have been a very strong argument for the ■allowance of the same evidence before the Court and jury in this cause, who might have judged whether the plaintiff ought to have been satisfied. But as the matter stands, the defendant ought not to have been let into evidence of the consideration of the three notes, because he had agreed, for good cause, that he would wave all objections founded on want of consideration, and that he would absolutely pay the note on which the present suit was brought, without delay, unless within'twelve months he did certain things which he has not done. I am therefore of opinion, that there was error in admitting the evidence, either of the consideration of the three notes sued in Virginia, or of the demand of them from the clerk of the Virginia Court, and his refusal to deijver them, because such demand and refusal were altogether irrelevant.

A second bill of exceptions was taken by the counsel for the plaintiff, on the Court’s refusal to admit in evidence, certain parts of the proceedings in another action between the present plaintiff and the administrators of William. Findlay, deceased.—I think the Court were right in rejecting that evidence. It was offered in so vague and uncertain a manner, that it was really impossible, either for the Court of Common Pleas, or this Court, to know, what it was that the plaintiff intended to prove. Upon the whole I am of opinion, that the judgment should be reversed, and a venire facias de novo awarded.

Judgment reversed, and a venire facias de novo awarded.  