
    MEHAFFY against SHARE, for the use of HAINS.
    5?. S. M. and D. purchased a tract of land of E., and with L. S. and C. as their suraties, gave E. a bond for the. price. It was understood by the parties, that E. was surety for P. andS. and C. iorM. andD., and that S. gave none. After several payments, E. brought suit. The writ was served upon all but M., and judgment obtained. A settlement was had between the defendants, to ascertain how much as between themselves each was to pay, and it was found that P. was deficient a large sum. P. and L. gave to M. and D. a bond to indemnify them for any money they might have to pay forP. on the bond to E. E. issued execution on her judgment, and sold the land of S. out of which she received the amount of her bond which should have been paid by P.
    S. being in debt to H. and arrested by him, S. executed to him a power of attorney irrevocable for the use of H., to sue for and recover of and from the estate of P. and from L. all sums, &c. due S. P. died insolvent. Held, in a suit brought by S. for use of H. against M. to recover contribution for his portion óf P’s. deficit, paid out of the property-of S., and in which M. had pleaded in abatement, that H..had no authority to sue, him, and issue was joined on that fact alone, that it was competent to prove by the subscribing vvitness to the power, who drew it at the request of S'. and H. that all the circumstances of this transaction, had been explained by S. to n., that it was this claim arising from this transaction and payment for P. to E. which was to be transferred, but it was P. and L, who were spoken of as liable to pay it.
    An assignment.!)!' a particular claim passes all remedies and liabilities, which the assignor had to secure and recover it to the assignee, although they are not specifically named, or set forth in the assignment, and H. on the assignment of S. of his claim for contribution, had'a right to recover from M., although he was not named in describing that claim.
    The record of a suit brought by S. for use of H. against L., in which the plaintiff suffered a non-suit, was not evidence in the action of S. for use against M. nor were judgments and mortgages existing against S. at the time of the assignment of the claim to contribution; that claim was a mere clml in action, which S. alone could sue, or give to any of his creditors; nor was a former suit by S. for H. ^against M., still pending, although for the same cause of action, evidence in this suit in which the issue was upon, such plea in abatement.
    "Where suit is brought in the name of a nominal plaintiff, for the use of another, by the act of assembly of the 23d April, 1829, the suit does not abate by the death of the nominal plaintiff.
    If issue in fact be joined upon the replication to a-plea in abatement, and found for the plaintiff, the jury should assess the damages, and the judgment is peremptory for the delay, quod recuperet, and not quod respondeat.
    
    Where an action of assumpsit can, or must be brought, and the amount which the plaintiff seeks to recover, appears by a writing under seal, or a judgment, such writing, or judgment, is evidence for the plaintiff in the action of assumpsit.
    
      It seems that where one of several principals pays a judgment, he is not entitled to be substituted to obtain contribution, as'a surety is to obtain payment from the principal, when such surety pays the debt;
    Appeal from the Circuit Court, held by Kennedy, J. for Lancaster county.
    Tire action was assumpsit for money paid, and expended, lent and advanced, by Henry Share, for the defendant, James Me-haffy. The suit was brought for- the use of Henry Hains, whose right to sue, formed the principal ground of controversy in the «au'se. .The .pleadings which are- material to the understanding of the cause, were as follows:
    “And the said James Mehaffy, in his own proper person, comes and defends the wrong and injury, &c. and says, “that before and at the time of issuing the summons in this case, and of bringing this siiitj Henry Hains, the cestui que use, and for whose use the said suit appears to have been brought, had no power or authority from Henry Share, to bring this suit, or any suit in the name of Henry Share, for the use of Henry Hains, against James Me-haffy, the now defendant. That the power from Henry Share, to Henry Hains, to sue and collect money in the name of Henry Share for the use of Henry Hains,. given and dated in May, 1821, is a special power to sue Parker and Hiestand, Jacob Breneman, and Joseph Lytle, and no other person or persons and no power to bring the' present suit: And this the said James Mehaffy, is ready to verify. Whereupon he prays judgment whether the defendant ought to be compelled to answer the plaintiff, and that the summons issued .abate, &c. James Mehaffy, affirmed, &c.
    To this plea the. plaintiff filed the following replication:
    “And the said Henry Share, who sues for the use of Henry Hains, saith that the said writ ought not to be abated, or quashed by reason of any'thing by the said James Mehaffy, in his said plea above alleged. Because, he saith, that he the said Henry Share, the said James Mehaffy, and a certain John Pedan, and James Huffy, purchased a certain tract of land, of a certain Frances Evans, and to' secure the payment of such part of the purchase money as was not in hand paid, gave their bond, dated-the 6th of April, 1813, with Joseph Lytle, as the surety of John Pedan, Henry Cassel as the bail of James Huffy, and George-Snyder as the bail of James Mehaffy, the said Henry Share, being by the said principals not required to give any surety as amongst themselves; that the money payable by the said bond, not being paid according to the tenor thereof, the said bond was put in suit in the-Common Pleas of Lancaster county, to November term, 1815, upon which suit such proceedings were had, that judgment was rendered, and execution issued thereon, and the real estate of the said Henry Share, levied, condemned and sold on a venditioni exponas, returnable to November term, 1821, foils 100 dollars, of which the said Frances Evans received $9322, 43$ in satisfaction of her said judgment besides the costs of suit.
    “And the said Henry Share, further saith that the said James Mehaffy and James Huffy, on the 19th day of July, 1815, took a bond from the said James Pedan and Joseph'Lytle, to indemnify and save harmless the said James Mehaffy and James Duffy, from the payment of $3616,71?!, then and still due and owing by the said John Pedan, as his share and purpart of the said bond, of the said Frances Evans, until she received satisfaction for the same with its interest, by the sale of the real estate of the said Henry ¡Share, as aforesaid; thattlie said John Pedan, atthetime of the sale of the said Henry Share’s real estate was, and is wholly insolvant and died so. That the said Joseph Lytle was, and is fully indemnified, and saved harmless for becoming surety of the said John Pedan, in the said bonds respectively, and has and holds the said money in his hands. And the said Henry Share, further says, that on the 17th day of August, 1819, he drew a promissory note in favor of Henry Cassel, or order, payable sixty days after date, at the Farmers’ Bank of Lancaster, for value received for $3825, which he the said Henry Cassel, and the said Henry Hains, indorsed to the said bank, and directed the payment of the said note, when discounted to he paid to the said Henry Share, which he received, which note, not being paid according to its tenor, was in •due form of law protested, and the said Henry Hains 1o redeem himself from his said indorsement, and the protests of the said note paid to the said bank in satisfaction of the same, the sum of @2982, 76, on the 5th day of September, 1820. And the said Henry Share, further says, that on the 17th day of February, 1819, he-made his promissory note, payable to the order of the said Henry Hains, junior, at the office of discount and deposit at Lancaster, for the sum of @2700, without defalcation for value received, which the said Henry Plains, and a certain Henry Plains, indorsed to the said bank, and directed the amount of the said note to be paid to the said Henry SJiare, which said note, not being paid according to its tenor, the said Henry Hains, the payee and indorser of the said note, to redeem himself from his said indorsement of the said note, and the protest thereof, on the 28th day of April, 1819, paid to the said office of the sum of @2708 48, in satisfaction of the said note. And the said Henry Share, further says, that he the said Henry Share, to save harmless and indemnify the said Henry Hains, junior, from the payment of the said two several sums of money, for him the said Henry Share, as well by the said instrument of writing in said plea, stated,, of the 12th May, 1821, which was by mistake of the scrivener, not drawn according to the intent- of the parties, as well as by parol transferred and made over to him, the said Henry Hains, (among other things,) all and every right, title, claim, interest and demand in law and equity, which he the said Henry Share had-enjoyed, and held and was entitled to, for compensation and contribution from the said parties principals and their surety, respectively,' in the said bond and judgment of the said Francas Evans, to wit: the said James Mehaffy, James Duffy and John Pedanj to the extent of the moneys levied and paid on the said bond and judgment for each of them by the said Henry Share, to the said Frances Evans, by and arising from the sale of the real estate of him, the said Henry Share. And this he the said Plenry Share is ready to verify. Whereupon he prays, judgment and his damages by him sustained on occasion of the non-performance of the said promise and undertaking of the said James Mehaffy, in the said declaration mentioned to be adjudged to him,” &c.
    On the 2d of May, 1829, the defendant obtained a rule to shew cause why the replication should not be struck off, and on the 9th of May following, the court directed the defendant to rejoin to the replication filed, whereupon the following rejoinder and sur-re-joinder, and issue were put in.
    “And the said James Mehaffy, as to the replication of the said plaintiff, to the said defendant’s plea in abatement pleaded; protesting against the truth of all and singular the facts therein stated and set forth, and also protesting that they contain no answer to the facts stated, and issue tendered by the defendant’s plea in abatement saith, that the said plaintiff ought not, by reason of any thing by him alleged, to have or maintain his said writ of summons against him, the said James Mehaffy. Because he saith that the said Henry Share did not either by the said instrument of writing, in the defendant’s plea in abatement stated, or by parol, transfer and make over to the "said Henry Hains, any right or authority to issue the original writ of summons in this cause. And of this, he the said James Mehaffy puts, himself upon the country.”
    And the said plaintiff, doth the like, issue and rule for trial.
    And now to wit, the 25th April, 1831, the defendant filed an affidavit of the death of Henry Share, and objected to the jury being sworn until his personal representative should be made a party to the suit: this objection was over-ruled by the court, and the jury was ordered to be sworn, to which the defendant excepted. The jury was then sworn and the trial progressed.
    The plaintiff produced and proved the execution of the following power of attorney or assignment, which Was received in evidence:
    “Knowall men by these present, that I Henry Share, of Done~ gal townshipj Lancaster county, and state of Pennsylvania, have made, ordained, authorized, constituted and appointed, and by these presents, do make, constitute and appoint Henry Hains, junior, of Donegal township, aforesaid, my true and lawfulattorney, irrevocably for me and in my name, but to the use of him the said Henry Hains, junior, to ask, demand, sue for and recover and receive of and from Jacob Brenemdn, of Donegal township, aforesaid, the estate of John Pedan, deceased, and Joseph Lytle, in Rapho township, Lancaster county aforesaid, all and every such sum, and sums of money, debts and demands, which now are, or may become due, and owing to me the said Henry Share, by and from the said Jacob Breneman, the estate of John Pedan, deceased, and Joseph Lytle, and also to recover and receive the amount of the two judgments entered in the Prothonotary’s office of Lancaster county, in the name of said Henry Share, and against John Hiestand, and William J. Parleer, which two judgments were appealed by John Hiestand, and in default of payment thereof to have, üse and take all lawful ways and means in my name or otherwise, for the recovery thereof by attachment, or otherwise; and on receipt thereof to make, seal and deliver requittances or other sufficient discharges for the same for me and in my name, •' and to do all lawful acts and things whatsoever concerning the premises as fully, in every respect as I myself might or could do if I were personally present, and an attorney or attorneys under him for the purpose to make, and at his pleasure to revoke, hereby ratifying, allowing and confirming all and whatsoever my said attorney shall in my name lawfully do or cause to be done in and about the premises, by virtue of these presents, hereby revoking all .former letters of attorney by me given, so far as respects the collecting of the above mentioned debt and judgment. Witness my hand and seal this twelfth day of May, one thousand eight hundred and twenty-one.” HENRY SHARE, [l'.s. j
    Sealed and Delivered ? G-eokge Matiiiot, in presence of $ William Child.
    
      William Childs, the scrivener who drew this power of attorney,who was a 'subscribing witness, and proved its'execution, was examined as a witness, and gave testimony of which the following is the substance. John Pedan, .Pfenry Share, James Mehaffy, and James Dvffy, had made a large purchase from Mrs. Frances Evans, and after paying the first instalment, gave their bond for about'twenty-four thousand dollars, with three sureties, Joseph Lytle, George Snyder and Henry Cassel. It was understood that Joseph Lytle, was surety for Pedan,'Snyder and Cassel for Mehaffy and Duffy. Share gave no security. ' After several payments, Mrs. Evans sued the bond, and got a judgment against all except Mehaffy, on‘whom, by the .direction of Mrs. Evans, the writ was not served. The defendants made a settlement to ascertain how much, as between themselves, each was to pay: On that settlement, it was ascertained that John Pedan was deficient three thousand six hundred and eighteen dollars and seventy-one cents, John Pedan and Joseph Lytle, gaye James Mehaffy and 
      Jumes Duffy, a bond to indemnify them for any money they might have to pay for 'Pedan, on the bond to Mrs. Evans. A copy of this bond, in the hand writing of Mehaffy, (who after notice to produce the original ■ refused to do so,) was given in evidence, and it was also proved that to indemnify Ly tle, as his surety, Pedan had. confessed judgment to Lytle, in Dauphin county.
    The plaintiff showed that Henry Share’s land whs levied on and sold by Mrs. Evans, for $16000, out of which she received the sum of nine thousand three hundred and twenty-two dollars and forty-three cents.
    The witness proved that all the circumstances of this transaction had been explained by Share to Hains, and that an offer had been made on a- former occasion, to transfer his claim to Hains, which was then declined. That on the 12th of May, 1831, (Share, being pressed and arrested by Hains,) Share and Hains desired him to draw the instrument given in evidence, to which he was a witness. He stated that the name of Mehaffy, was only mentioned in relating the whole transaction that it was this claiiji, arising from the payment to Mrs. Evans for Pedan, by the sale of Share?$ land, which was to he transferred to Hains, but that it was Pe-dan and Lytle, who were spoken of as liable to pay it; and all the circumstances were minutely detailed, to show that thé claim was good. It was proved that Pedan was insolvent, and dead.
    The plaintiff shewed that Henry Hains, had been indorser for Henry Share,had been compelled to'pay for him. large sums of money, (exceeding the amount claimed in this suit,) before the assignment by Share to Hains._
    The suit was brought to recover from James Mehaffy his proportion of the money levied from Share, and which ought to have been paid by Pedan, and for which the others were bound to contribute to Share on Pedan’s failure.
    The power of attorney from Share to Hains, the evidence given by Childs, the subscribing witness, the copy of the bond of indemnity of John Pedan and Joseph Lytle, to James Mehaffy and James Duffy, the notes drawn by Share and indorsed by Hains, which he was compelled to pay, the record of the suit of Frances Evans against Pedan, Mehaffy, Duffy, Share, Cassel, Snyder and Lytle, were objected to by the defendant, and formed several bills of exception, which were taken in the cause. ■
    The defendant offered in evidence the record of a suit brought by Henry Share, for the use of Henry Hains against Joseph Ly-tle, for the same claim now in suit, and in which the plaintiff was non-suited. Also the record of sundry mortgages and judgments existing against Henry Share, at the time he assigned his claim against Henry Hains; also the record .of a judgment of Christian 
      
      Becker against Matthias Bank and Henry Share, to August .term, 1,815, and the scire facias thereon to April term, *1818, and the subsequent proceedings in the Supreme Court, see Bank v. •Becker, 13 Serg. & Raiote, 41. Also the reeord of a suit by Henry Share, for Henry Haiyis against- Jatnes Mehaffy, in the Circuit Court of Lancaster county, which had been brought in the District, Court to September term, 1818,-to each of which the plaintiff objected, the court sustained these objections and the rejection of these records formed several other bills of exception.-
    The following entry was made on the record of th& scire facias issued to August term, 1819, on the judgment of Frances Evans, against Pedan and others: ' ■
    “June 26th, 1821, on motion of Mr. Buchanan, on behalf of Joseph Lytle, who is a surety in the .bond upon which this judgment was.obtained, the court granted a rule to shew cause why he should not be substituted in the place of the plaintiff, and by means of this judgment, receive the sum of $>1000, together with interesf from the 18th of August, 1818, out of -the proceeds of the sale o tire real estate of Henry Share, who is a principal in the said bond and judgment, the said Joseph Lytle, having'paid-to the plaintiff upon the said .judgment the said sum of $1000 on the said 15th of August, 1818, as per.receipt of that date.”
    • Mrs. Evans was offered as a witness by the plaintiff, but being objected to by the defendant, was withdrawn-. The defendant had on-the -13th day of June, 1827,.táben a rule on the plaintiff’s attorney, to file his-warrant of attorney, and the warrant was filed the 9th of May,. 1829.
    The defendant requested 1¿he court to charge the jury on the following points, and file the charge of record:
    1. That before the plaintiff can recover in this case, he must prove," by legal and competent proof,' that James Mehaffy was indebted to Henry Share, for money advanced, &c. by Share for him, Mehaffy, and at his request. That Henry Share considered it so, and intended to enforce the- said claim against the said James Mehaffy, and actually-assigned and transferred it to the present plaintiff, 'Henry Hains. .
    
    2. That Henry .Hains the~plaintiff, cánnot recover in this suit, without proving an assignment or transfer of Share’s claim against Mehaffy, (if any he had) to him, Hains, either in writing, or by paroL ... ",
    . 3. That the instrument of writing, of the 12th of May,. 1821, referred to in the pleadings, contains no such transfer, and is no authority to maintain this suit.,- That there is no' proof of any mis--take of the scrivener, in drawing said instrument of writing. Nor has the plaintiff given any proof of any parol transfer in this case and that consequently bn the issue formed, the jury must find for defendant.
    The court charged the jury as follows:
    “This is an action of assumpsit, brought by Henry Hains, junior, in the name oí Henry ¿¿hare, for. the use of the said Henry Hains, to recover of James Mehaffy moneys, which it is alleged Henry Share advanced, paid, laid out and expended for the said Mehaffy, at his special instance and request,- &c. '
    You will first. enquire whether James Mehaffy was indebted to Henry Share on such.account or not, at the time of commencing this suit.
    Next whether Henry Hains had a right, and authority from Henry Share to bring this suit, and to enforce payment from Mehaffy-*
    
    If you should find that James Mehaffy, was indebted to Henry Share, for money paid, advanced, &c. by. the said Henry Share, for James Mehaffy. And again, that this claim was assigned by Share .to Hains, it will be . your duty to ascertain and fix the amount'of damages, or money — that the •defendant ought to pay the plaintiff.
    With respect to the first point, you have it in evidence, that Henry Share, James Mehaffy, James Huffy and John Pedan, as principals, and Henry Cassel, George Snyder and Joseph Lytlér as sureties, on the‘6.th of April, .1813, joined in executing and delivering an obligation to Mrs. Frances Evans for $48,581 25, conditioned for the payment of $24,290 62} to Mrs Evans, on the first of April, 1814. . .
    A considerable portion oí this obligation, appears to have been paid, and probably by the several principal obligors in their proper proportions, previously to the 19th of July,i-1815, when it appears from a bond of indemnity, given by John Pedan arid Joseph Lytle, to James Huffy and James Mehaffy, a balance was due on this bond, and John Pedants one-fourth of the sum due on it, amounted to $3,616 705. In the course of two or three months after this? Mrs. Evans commenced a suit upon this bond, to November term, 1815. Thasummons in commencing this suit, by direction of Mrs. Evans, was not served on James Mehaffy, although he was joined with, the Others in the summons, hut was served on the others, as appears by the return of the sheriff, and judgment by default-was entered on the 22d of January following, 18,16.
    At this time, less than $9000 appears to have been due on the bond, and therefore most likely something. had been paid upon it to Mrs. Evans, after the 19th of July, preceding. It may be that Jam.es Mehaffy, in that- interim paid @3616,705 his own fourth of the balance due on the 19th cf July, 181-5, and that may be the r«a-son why Mrs. Evans directed the summons not to be served.on Mehajfy, expecting' that if she had a judgment against the other three, she might be able id compel each to pay his proper proportion. If this- however were her motive for giving such direction, she did not succeed in it: for the whole balance due upon this bond, or the judgment obtained upon it, @9,322 43, was. recovered from .Henry Share, by -a levy upon, and sale of his -real estate. . •
    The circumstances of the writ of summons not being served upon Mehajfy, is no evidence, as.has been contended, of Mehajfy having ever been discharged or -'released by Henry Share, from his liability to Share, as .a principal co-obligor. The omission of the sheriff, to serve the writ on Mehajfy,■ was in obedience to the act and direction of Mrs. Evans¿ over whom Henry Share, had no control,..and with which it does not appear he had any .concern.
    It is manifest and not contradicted, that '$9382' 43, the balance of the debt and interest clue on this Obligation beside costs of suit, •were paid by Henry Share, as a' principal co-obligor,' or out of the money arising from the sale of his real estate, which is the same thing.5’ 1
    Answer of the court on the points submitted by defendant’s counsel:
    1. “To entitle the plaintiff to recover in this case upon the issue that is formed, it is necessary that he .should have proved that James Mehajfy the defendant was indebted to Henry Share for money advanced, &e. by Share for Mehajfy, and at his request. This request, however, need not he an express request, because, aá between joint principal’s co-obligers, when one of them pays more than his proportion, it will be considered in law as money paid and advanced for the others, and at their request; the law in this case implies the request, as also a promise by the others respectively to reimburse hiiidso paying, their respective proportions, so that upon a final adjustment of the whole, each- one shall have paid his proportion according to their respective rights in the obligation as originally concocted. To enable Henry Hains to enforce this claim against James Mehajfy, and to sue bim for it, it was hot necessary that Henry Share should have expressly authorized Hains to sue Mehajfy. If he' actually assigned' the claim to bim for a Valuable consideration, or in payibent of, or as collateral 'security for a subsisting debt, owing by Share to Hains, it will and ought to. be implied therefrom that he intended that Hains should sue Mehajfy, if he did not pay without Without assignment of the claim by Share to Mains, or an express authority given by Share to Hains, he would have no right to sue Mehajfy. But I repeat, if there were an assignment of this claim, either in writing or by word of month, by Henry Share to Henry Hains, to secure to Hains the payment of a debt which Share owed, and in consideration of which too Share obtained his discharge from arrest, and the prosecution of a suit of Hains; without naming Mehaffy in the assignment, orafithe time of making it, Hains would thereby acquire an irrevocable authority to sue Mehaffy, or any person who was liable, and bound to pay it, unless there was an express stipulation or understanding between Share and Ilains to the contrary. Neither is it material whether Share considered Mehaffy liable to pay this claim or not, if he never released him from it — ■ of which there is no evidence — an unqualified assignment of it would give an authority to sue Mehaffy for it, if he were liable, without naming him.
    
      ■2. Henry Hains cannot recover in this suit, unless you are satisfied from the evidence given, that Henry Share assigned the claim for which this suit is brought, to Henry Hains; but a written or verbal assignment or transfer, will be sufficient to enable him to sue for it, if good.
    3. The instrument.of writing of the 12th of'May, 1821, referred to in-the pleadings does not of itself contain an assignment of a claim against James Mehaffy by name; nor any authority to sue him. But the nature and origin of the debt or claim which is thereT by assigned to' Hains against John Pedan and Joseph Lytle is not described nor particularly designated; and William Child, Esq., a witness .on the part of the plaintiff, who drew that instrument of writing, and is"a subscribing witness to it, has testified and repeated it more than once, that the claim now in suit was the same that was mentioned at thfe time of drawing and executing that instrument, and an assurance given by Share to Hains, that Pedan wA Lytle were liable to pay it, and that he described it merely as a debt against them. It will be your duty to take the testimony of Childs in this behalf into your consideration in connection with that instrument of writing, inasmuch as it goes to explain the nature of the claim or debt which was intended to be assigned, which is omitted in the writing; and if you should believe from this instrument of writing, and from the testimony of William Childs, that the claim which this suit is brought to recover, was intended to be assigned by Share to Hains, and this is a matter which you ought to decide according to what you shall believe was-the intention of the parties at the time, it was not necessary that the name of Mehaffy should have been mentioned at that time, to give authority to Hains to sue him, It was sufficient if he were liable for the claim which was actually, and intended to be assigned. It does not appear from .the testimony that the scrivener committed any mistake; but it seems, according to his testimony, that he omitted, or has not described the nature and origin of the claim in this case, which he says was the same that was assigned. The court cannot say that no evidence has been given-of a transfer of the claim in this suit, because what has been testified to by Squire Childs may, and ought it credited by you", to be considered as part of the assignment, and if so, will embrace the claim in this suit, and would give Hains a right to sue for it, if well founded.”
    The verdict of the jury was for the plaintiff, and thé damages assessed $2546.
    
    On the 30th of April, 1831, the defendant moved for anew trial, for tire following reasons, to wit:
    1. The court erred in permitting the jury to be sworn, -and proceeding to the trial of the cause in /the then situation of the pleadings, and especially after a positive affidavit of the death of Henry Share, and a suggestion of this fact on the record; contrary to the wish of defendant's counsel, and when they in writing objected to the same. „•
    
      2. The court erred in permitting the plaintiff to go into evidence of the merits of his case, so as to slrow'what sum he was entitled to recoyer on a hearing on the merits; and instructing the jury when they were sent out that they were, in case they found for the plaintiff on the issue, to assess his damages.
    3. The court erred in, admitting the evidence as testified to by William Child, Esq.
    4. The court erred in admitting in evidence the paper dated the 12th of May, 1821, purporting to be a letter of attorney from Henry Share to Henry Hains, junior. ■
    5. The court erred in admitting in evidence the copy of the bond of indemnity, purporting fo have been executed by John Pedan and Joseph Lytle to James Mehaffy and James Duffy, and dated 19th July, 1815.
    The court erred in admitting in evidence the note drawn by Henry Share, and indorsed by Henry Hains, and Henry Hains, junior, payable tó Plenry Hains, junior, dated the 17th of February, 1819, payable in sixty days, at the office of discount and deposit at Lancaster, and paid off by Henry Hains, junior, after protest, on the 28th of April, 1819, $2,708 48.-' And also the noto drawn by Henry Share, and indorsed by Henry Cassel, Plenry Hains, junior, and Christian Miller, dated the 17th of August, 1819,, and payable to the order of Henry Cassel, in sixty days, at the Farmers’ Bank of Lancaster, and paid off by Henry Hains, junior, after protest, on the 5th of September, 1820, @2,982 76, together with the protests and receipts accompanying the same as given in evidence.
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      13, That the damages are unreasonable,,and excessive,-'and contrary to law, and. not warranted by-, the evidence.in the cause..
    14. That the verdict of the jury is.contrary .to law and the evidence in the cause. . .
    . The foregoing'reaspn were sworn to by James Méhaffy as being' “correct and true.” : '
    ‘Thefollowing-additional reason'is assigned by the counsel of the'defendant, he hot being in .court at the tihae the circumstance occurred; and not therefore being within his knowledge, but having transpired' before the Court, the reason is thus assigned: ; ■'
    . That when the jury returned to .the -court to give in their verdict it, was for the first tihae discovered by defendants counsel, that they had out with them', when deliberating in the" jury room, a. 'statement. and calculation in'the hand writing of the. sénio.r'cdunsel'of the plaintiffs, which was not given in evidence, nor .submitted to defendant^ counsel, and which may have misled the. fury in makirig up their verdict; arid that , a new trial ought to be granted on this account. - -
    , The counsel of 'the plaintiff testified, that neither of thpria knew how the paper referred to in the last reason assigned had .got to the jury. ' ’ It was a calculation of the principal and interest on óné of the notes which Mains had. been compelled to pay-for Share. ■
    
    The Circuit Court- over-ruled the motion for a new trial, and directed judgment to be entered oh the verdict;- whereupon-the -defendant appealed to the Supreme Court, and now assigned the'same reasons for a new trial as those insisted- on in the Circuit'Court.
    
      Porter and Jenkins for the appellant,
    -Argued that the issue presents a single point; a fact affirmed on' the.one side, and denied on the other. . That point was, that Hains had power to sue'the claim, pf Share against-the defendant.' This was affirmed by the plaintiff, and denied -by the defendant, and all the evidence which went to any other was irrelevant, and should not have heeir received.." As to this point, -they denied that there was any evidence to establish it. - The power of attorney was not an assignment, but a m.ere power, which must receive;'a-strict construction, and cértainly did not confer the right to institute this suit,-. for it'designates the debts, as to.which authority 'is given to sue; and this is not among'them, expressió uriius est exchxsio alterius. ■ 'It was'not- his intention'to transfer any .claim against Melidffy, as he was.ignorant of :the fact that he had §dch‘ claim, and it did riot appear/that if was riot His. intention -to release Mehaffyy ■
    Nor did the plaintiff Hains establish a parol-transfer; so far from it it was proved that on’a former occasion an-offer was made to-traris--fer this claim, and it was'then refused. ’ Take, then-, thc’writing and the testimony of Childs separately, and the transfer is not established; but the attempt is made to make it out by connecting them together, in violation of the rule which forbids the introduction of parol evidence, to contradict or vary a written instrument. The only exceptions to this rulo are in cases of fraud, mistake or trust, neither of which existed here. . ,
    They contended that the court erred in ordering the cause on when no issue had been joined on the merits,, and proof was given of the death of the plaintiff. The case they argued did not fall within the act of the 23d April, 1829, Pamphlet'Laws, 355, upon which the court decided this point. ■ This error led the court to others in pcrmitting-eyidence as to the merits to go to the jury, and instructing them that upon finding in favor of the plaintiff, it was their duty to ascertain the amount due, when the issue presented the naked qüestion as to the right to sue.
    The court they contended were in error in not receiving evidence of the mortgages, and judgments against Plains existing at the time of the alleged assignment; for if there were a'right of recovery against the defendant, that right should pass to these creditors. If they had not a lien upon the claim, still, as the recovery of their debts had been prevented by the judgment of Mrs. Evans, they had a right by substitution to come in to recover the fund to which Share obtained a claim> by the payment of that judgment.
    The damages they contended were erroneously calculated; for at all events, the record of Mrs. Evans’ judgment showed a payment of @1000, which ought to have been .passed to the credit of Me-hcijfy. •
    It was important to preserve the trial by jury in its purity; here'a paper, which .had been objected to, and which, on that'objection, the court had refused to permit to be sent out, was yet in some way got to the jury. It may have had an influence upon the jury; but this is not so. much to be, regarded as-the importance of the principle of preventing improper practices upon a jury. .They cited 2 Stark. Ev., 80, 81. Gilb. Ev.,, 4, 5. Peak. 168, 169. Mumfordv. McPherson, 1 Johns. R. 413. Share v .Anderson, 7 Serg. & llawle, 433. 1 John Ch. R. 273, 282.
    
      Montgomery (with whom was Ilopkins, whom the court declined to hear,) for the appellee.
    The objection to swearing the jury is met by the express terms of the act of assembly referred to.
    Th.e point in issue it,is true was whether Plains .had authority to sue, but it does not lay in the mouth-of the defendant to object that there was no plea to the merits; he might have-put in such plea; but he chose to rest his defence on the issue joined. The replica» lion of the plaintiff contains an averment of the transfer to Mains, and of the mistake in not making it a part of the written power. If the defendant considered this replication objectionable, he should have demurred to it, instead of which he joined issue upon it, and cannot now complain that evidence was received to sustain it.
    If an issue in fact be joined, upon the replication to a plea in abatement, and found for the plaintiff, the jury should assess the damages, and the judgment is peremptory for the delay, quod re-cuperet, and not quod respondeat. 1 Chit. PL 455. 2 Sanders, 211, note 3. If the jury do not assess the damages, a venire de novo is awarded. Upon a demurrer in the case of a plea in abatement. there must be a respondeat ouster. 3 V/ilson Rep., 367. % <Arch. Prac. 3, 4. Wright v. Holly, 3 Wendel. Rep., 258. Wallace Rep. 57, 8. The defendant was permitted to give any eviden ce which went to the merits of the claim. It was not pretended on the triai that the $1000 had been paid by Mehaffy, nor was any receipt produced, or other evidence of payment.
    The objection as to the evidence going to affect a written instrument is wholly untenable.. In the first place the evidence went to sustain the issue, for by that it was open to the plaintiff to prove an authority either in writing or by parol, and in the second place the evidence did not contradict or vary the instrument, but explained a latent ambiguity by ascertaining the nature of the debt assigned. The instrument given in evidence was in form'a power of attorney, but in substance, which alone is regarded, it is an assignment. It assigns the claim against Pedan, which by parol evidence was ascertained to be a elaim for contribution, and such assignment would carry the remedy against Meliaffy, as well as every other remedy.
    The rule that a bond may notbe given in evidence in assumpsit does not prevail here, so as to exclude the bond of indemnity to Mehaffy and Duffy. It went to ascertain the extent of Redan’s default. Thompson v. While, 1 Dali. 428. Charles v. Scott, 1 Serg. & Rawle, 294.
    
    It cannot be pretended that the judgment creditors, or creditors by mortgage of Share had a lien on the claim, which was a chose in action; there is no equity which would vest in them this right; nor do they make any such claim. No plea or issue was put in, which could raise the question, and it does not lay in'the mouth of Me-haffy to interpose this objection. '
    The paper which was out with the jury was altogether immaterial, and had no effect upon their verdict.'
   The opinion of the court was delivered by

HustoN, J.

--The defendant appeared, prayed oyer of the writ, and of Henry Hains’ power to sue, and special imparlance; and a rule was granted on plaintiff’s attorney to filG his warrant of attorney, and he filed it. This may seem strange to those in other states, but in fact occurs so seldom, that many lawyers in full practice, for a long time, never had, and never have been called on to file a warrant of attorney. The client spealis, or writes to the lawyer, and gives him a fee, and he attends to the matter. After oyer, defendant pleaded in abatement.

A declaration was filed, and a rule to plead and second rule; the court ordered the plaintiff to reply to the plea in abatement; and he did so, and issue was joined on the right of Henry Hains to bring this suit. The plaintiff’s replication to the plea was rather argumentative; but there was no demurrer; the defendant chose to go to trial before a jury.

The jury gave a verdict for the plaintiff, and assessed the damages. There are many reasons filed why a new trial should be granted, and not a few of them, such as ought not to have been presented to any court. It is usual to bring a suit as this is brought, in the name of one person, for the use of another. Since the last term Henry Share had died, and formerly, by the decisions of this court, the suit could not have proceeded until his administrators were substituted; but an actof assembly, of the 23d of April, 1829, had in plain terms directed that the suit should proceed notwithstanding the death of the nominal plaintiff. It is a wise and beneficial act. Henry Share did not institute the suit, could not have discontinued it, and was not liable for costs. lie was a mere formal part of the machinery of a suit. The judge proceeded with the tx-ial, although his death was proved; and this is the first ground assigned for a new trial; and affords one of the most striking instances of the want of reflection with which such motions are made, and reasons for new trials are sometimes filed. Wc are called on to say the above act is in force.

It has been settled that in certain cases where issue is joined on "a plea in abatement, the jury, if they find for the plaintiff, must assess the damages. The court so instructed the jury in this case, and permitted evidence of the amount to go to the jury; this is the next reason assigned for a new trial. The cases cited prove the law to be as stated by the judge, and no authority or dictum to the contrary has been produced; and it is admitted, that if Hains had a right to sue, there was nothing to do but calculate the amount. Why this decision of the judge was brought before us I know not.

I shall consider the 3d and 4th reasons together, on the admission, in evidence of the assignment or power of attorney, when proved by the subscribing witness, and the admission of the evidence of Wit~ Ham Childs, who drew it, and was a subscribing witness to it.

There will be no end of discussions 'about the admission of pa-rol evidence, where there is, álso a writing between the parties; but it will, and must be admitted, as long as the attainment of justice is the object of courts. Certain general rules have been attempted to regulate this admission. It is said in many cases it is only admissible where there is mistake, fraud, or trust. Now if the whole contract is fairly and fully reduced to writing, and that writing is not attempted to be used in a different way, or for a different purpose from the meaning and contractof the parties, nobody ever would, or will wish to introduce parol evidence. This rule, then, proves nothing.

Another expression has obtained some currency, viz: a contract cannot be partly in writing, and partly in parol. This differs from the former; it is worse than useless; it is incorrect, wherever there has been fraud, or mistake; for when the fraud is developed or the mistake corrected, if not totally set aside, it is carried into effect according to the written contract, corrected by parol evidence, and does always consist of both written and parol, where any part of the bargain is put in writing.

It frequently happens that the parties, and the scrivener, understand perfectly the matters which are the subject of the contract, and supposing that there will be no dispute, or that every body will know all that they know, the very subject-matter of the contract is described so vaguely, or indistinctly, as that a stranger cannot comprehend with certainty what was intended to be effected by tho agreement. A familiar instance of this is an agreement to sell a house in Lancaster, and tho seller has more than one house there. Equal, or greater uncertainty may arise on an agreement to transfer a claim. In this case, as the parties and the scrivener knew that Mehaffy had a bond of indemnity from Lytle, they seem all to have considered that Share, or his assignee, might pass over Me-haffy, and at once recover from 'Lytle. They do not seem to have conceived that-Lytle could only be reached through Mehaffy, or rather thought that as Mehaffy was ultimately safe, they need not name him. The scrivener, however, proved distinctly that the whole matter was explained; that Share had paid more than his proportion, and Pedan much less; that thus Share was entitled to contribution from his co-obligors; to be sure, it was added that a particular co-obliger was indemnified; and the mistake consisted in supposing that Share had immediate redress on this indemnity. It was this claim for paying more than his proportion; for paying what Mehaffy ought to have paid, which was alleged to be assigned, and which the jury have found was assigned; and the explanation by the scrivener was necessary to the attainment of justice, becau.se it was necessary to understand the subject-matter to which the power irrevocable applied.

It is next objected that the power of attorney, after being proved, was permitted to go to the jury; it did not go until after Childs was examined, and then went because the evidence, being partly written and partly parol, the jury alone could decide on its effect.

5th and 7th reasons. — The bond of indemnity from Pedan, and Lytle to Mehaffy was also objecled to, and permití eel to go to the jury. The witness had stated that shortly before Mrs. Evans had sued on her bond, the defendants met and settled, to ascertain, as between themselves, how much of the remaining debt to Mrs. Evans each ought to pay. -At this settlement it appeared that Pedan was most in arrear with his payments, and that the witness then drew the bond from Pedan with Lytle as his security, to Mehaffy and Duffy to indemnify them, in case they should he compelled to pay the whole or part of what Pedan ought to pay. The bond was given in evidence to show the amount which on settlement all parties agreed was due by Pedan, in which point of view it was clearly evidence. This very point was decided by this court, in Charles v. Scott, 1 Serg. & Baiole, 294, and is the ordinary practice whore an action of assumpsit can, or must he brought, and the amount appears by a writing under seal, or a judgment; it is always dono where a surety, or co-obligor pays off the bond, and sues the principal or the co-obligor, to recover from him. The bond or judgment is shown to prove the amount paid.

As soon as it is decided that the jury in this cause must find the amount due the plaintiff from this defendant., (in case they find for the plaintiff,) it follows that evidence to prove that Share was in - debted to Haim, and how much, is admissible and necessary.

As t.o the evidence offered by the defendants: That TIains was mistaken in first sueing Lytle, that it-was decided such suit did not lie, and that he was non-suited; this was no reason why he ought not to recover in this suit against Mehaffy.

The next two offers were the same; the one was to show all the judgments against Henry Share and the other to show a particular one. This claim against Mehaffy was not bound by any judgment; it was a chose in action, and could not have been levied on. But it was said, that as Share’s land, or the proceeds of it, had been taken to pay money which Pedan ought to have paid, or which the other joint obligors ought to have contributed to pay, therefore the judgment creditors of Share ought to have been substituted in his place, and had the money recovered from Mehaffy, or Pedan. It has been decided, and may bo considered settled, that a surety who has paid money for his principal, may have the judgment assigned, in order to levy on lands of the principal, to indemnify himself; here there was no judgment against Mehaffy. Has ft ever been decided, that if one man pays money for another, any court can compel that other to assign a chose in action to indemnify him who paid? But no surety paid this money. There was, then, no surety who could ask an assignment of this judgment; Pedan had no property; an assignment of the judgment against him was worthless. The writ was not served on Mehaffy; there was no judgment against him by Mrs. Evans, which she could assign to any one; Share had nothing but a right to contribution, which he alone could sue, and the proceeds of which suit he could give like any other chose in action, to any one of his creditors. Besides, Share, Mehaffy, Duffy and Pedan, were tenants in common of the lands purchased, had given their bond for the purchase money; each was a principal; neither, simply a surety. I don’t know of any case in which one so situated, who has paid more than his share, has been substituted, and has had the judgment assigned to him, to enable him to use it to collect from the others. If it were so assigned he mightlevy all from one; that one must have it assigned, and may levy all from another, and it may go on in a circle. A surety may levy all from the principal, or from, one of the principals.

They talso offered the record of a former suit by Share for Hains v. Mehaffy, which they say was for the same cause of action. I shall not stop to inquire whether it is, or not; it was not plead in abatement or bar; it is still open, and if there be a recove-, ry in this, there can be none in that suit.

Next eome objections tq the eharge of the court. I think the law was correctly stated by the court;-1 shall only add two authorities: in Richardson v. Stewart, 2 Serg. & Rawle, 84, the matter was decided: which, as the statement of the case is not given, I shall explain. Stewart had purchased land of R. Neave, and paid money, and had a clause of warranty in his deed. In the course of a long contest about the land, he became so involved as to be com-., pelled to take the benefit of the insolvent law. In his assignment he transferred to his assignees, “a claim on R. Neave for- the recovery of- money paid him for land. ” The assignee, however, proceeded 'for the land; it was made a point that Steivart had not transferred any right to the land; but the court held otherwise, and the land was ultimately recovered. In Donley v. Hays, the assignment of a bond was held to amount to an assignment of such interest in a mortgage to secure that and other bonds,ras corresponded to. the amount of the bond, and the assignment of the bond was a transfer of the right to the sum secured, and passed all the remedies and all the securities which the assignor had for that debt; and this is true where there is no express agreement to the contrary. 17 Serg. & Rawle, 400.

As to the damages; there is no groundfora newtrial onthis account ■ ■ — to remove all doubt as to whether Pedan had paid any money after the settlement between the parties, the plaintiff called Mrs. Evans to give testimony on this matter; the defendant objected to her, and plaintiff did not insist, and she was not examined. Now if counsel will object to every-thing, without reflecting on its effect, it would be strange if this court should grant them a new trial, that they might examine a witness who was in court, and offered to prove the very matter; for let it be remembered, they ask a new trial that they may examine Mrs. Evans on the very subject, and respecting the precise facts which she was offered to prove, and which they resisted. We perhaps ought to take it; that the object is the delay of another trial, and that in fact, that lady would give no testimony which would be in their favor.

Rogers, J. — Plaving been of counsel in the cause, took no part,

Judgment of the Circuit Court affirmed.  