
    [Lancaster
    June 6, 1827.]
    HENDEL and others, Executors of MYERS, against The President, Managers, and Company of the BERKS and DAUPHIN TURNPIKE ROAD.
    IN ERROR.
    If in a suit brought by a corporation upon articles of agreement, the style of the corporation named in the agreement offered in evidence, differs from that in which the suit is brought, and some evidence has been given to the court to show that there has been a mistake in the name, and that in truth the agreement offered in evidence was made with the corporation which brought the suit, the court ought, under the plea of non est factum, to permit the agreement to be- read to the jury.
    If the original cause of action be compromised by an agreement, the defendant cannot in a suit on the agreement recur to the original grounds of controversy.
    Where a record has been given in evidence without objection to the court and jury, it is error to refuse to permit it go out with the jury.
    Writ of error to the Common Pleas of Lebanon county.
    This case had on two former occasions been before the court; first, at May Term, 1820, when the judgment entered in favour of the defendant in the court below was reversed, (6 Serg. & Rawle, 121,) and again at May Term, 1824, when a second judgment in favour of the defendant was also reversed. (11 Serg. & Rawle, 123.)
    In the court below it was an action of covenant brought by the president, managers, and company of the Berks and Dauphin turnpike road against William Hendel, W. J. Richards and D. Myers, executors of John Myers, deceased, in which the plaintiff declared- — “For that whereas, heretofore, to wit, on the 29th of April, 1817, at the county aforesaid, by certain articles of agreement in writing then and there made between the said John Myers, esq,, of the one part, and Christian Lay, president, Christian Suavely, treasurer, and W. Ward, secretary, on behalf of the said company of the other part, (which said articles of agreement sealed with the seal of the said company and the seal of the said John Myers, esq.; the said president, managers,and company, now bring here in court, the date whereof is the day and year aforesaid;) it was agreed as follows — ‘Whereas a dispute has existed between the Berks and Dauphin turnpike company, (intending thereby to name and describe the president, managers, and company of the Berks and Dauphin turnpike road, and the plaintiffs in this suit,) and John Myers, esq., respecting twenty-five shares of stock subscribed by the said John Myers, and in order to settle and put an end to the said dispute it is this day agreed by and between the said John Myers and the said company, (intending thereby to name and describe the president, managers, and company of the Berks and Dauphin turnpike road, and the plaintiffs In this suit) as follows, to wit: — The said John Myers agrees to take and to keep the said-twenty-five shares of stock so as aforesaid subscribed, and to pay the same as follows, that is to say the sum of two hundred and fifty dollars, part thereof on the 1st day of October next, and the remainder thereof in payments of two hundred and fifty dollars, on the 1st day of April in each year, until the whole sum of one thousand two hundred and fifty dollars is paid without interest, and further, that the legal costs of the suit brought, except counsel fees, be paid by and between the said parties in equal shares. And the president, managers, and company of the Berks and Dauphin turnpike road in fact say, that the Berks and Dauphin turnpike company named as a party to the articles of agreement aforesaid, was in fact intended to be the name and description of the plaintiffs in this suit, and that in fact and truth there is no such artificial person or body politic having the corporate name of the Berks and Dauphin turnpike company, and that the Berks and Dauphin turnpike company on whose behalf the said Christian Lay, president, Christian Suavely, treasurer,and W. Ward, secretary, in the said articles of agreement mentioned, did agree, is the same corporate body named as the plaintiffs to this suit,’ ” &c.
    The defendants pleaded non est factum, covenants performed, non infregit conventiones, and a former suit pending.
    The plaintiffs having produced the article of agreement referred to in the declaration, examined Samuel Valentine, the subscribing witness, who said, “This is my handwriting as a witness to this paper. It was in my father’s house, Michael Valentine: Í was called over to sign it as a witness, and' John Myers allowed it to be his hand and seal. They had been making ?m agreement, and I was called as a witness to it. I cannot say whether he had signed it before I went in or not. He acknowledged his hand and seal. It was all written I think when I went over to them. Christian Lay, Christian Snavely, and Dr. Wood were present. On his cross examination the witness said, I cannot say whether the seal of the corporation was on it at that time or not; I have seen the /paper before often. I have been examined before. I think that nothing was written under my name at the time. If there had been any writing there, I would have signed below it. I think they had a seal there, and I saw the press. I saw the press, but cannot say whether it was there or not. I cannot say whether I saw the seal there at that time for certain, but I think I did. It is eight or nine years ago. I do not recollect whether that seal (the seal of the corporation was then exhibited to the witness,) was to the or not at that time.”
    After the examination of Valentine, the plaintiffs offered in evidence an article of agreement, dated the 29th of April, 1817, signed, John Myers, Christian Lay, president, Christian Sna
      vely, treasurer, William, Wood, secretary, and to which the seal of the corporation was affixed. The counsel for the defendants objected to the admission of the instrument, ,and an exception was taken to their opinion. ''
    
    When the plaintiffs bad closed their evidence, the defendants gave in evidence the record of a suit brought in the court of Common Pleas of Lebanon county to November Term, 1816, by the president, managers, and company, of the Berks and Dauphin turnpike road against John Myers. Christian Suavely was then called upon as a witness, and swore as follows: “The seal of the corporation was put to the instrument the same evening after John Myers signed the instrument. He was not present when the seal of the corporation was put on. The indenture was executed at Myerstown, at the house of Michael Valentine. Christian Lay,* Lewis Reese, Christian Suavely, Samuel Jlddams, Henry Koppenhaeffer, Peter Lineweaver, William Wood, and Samuel Rea, were present. I was not a manager, nor William Wood. JLbraham Raiguel was there. There were two managers absent. The words £ The seal of the corporation’ were written by Dr. Wood, the secretary at Myerstown, the same time the contract was executed. I saw Myers execute the agreement, also Christian Lay, and Dr. Wood, and the managers already mentioned, were in the room when they signed. I cannot say they saw them sign it. I was treasurer at that time, and keeper of the seal of the company.”
    . After the witness had given the evidence above stated, the plaintiffs proposed to ask him on his cross examination, ££ Whether the seal of the corporation was affixed to the contract on which this suit was founded by order and direction of the managers present at Myerstown, on the day the contract bears date, and at the time it was signed, as the minute of this direction appears to have been kept by the secretary of the corporation in the minute book of the corporation;” to which evidence the defendants’ counsel objected, but the court admitted it, and the defendants took a bill of exceptions. . •
    The witness then proceeded thus: “ I was directed by the managers then present to affix the seal to it in the presence of John Myers. I mean the managers already named by me. It was agreed that I should take the agreement home and put the corporation seal to it, and Mr. Myers told me I should call on Mr. Wright and inform him that he had settled with the turnpike company, and should show him the agreement if he wanted to see it. I next day told Mr. Wright this. On the former trial, I said that Mr. Godwin, in, the presence of the managers and John Myers, told me to put the seal to it. I do not know whether Myers told me to put the seal to it or not. He assented to my taking it with me. Myers was next to me when I got the order and was near enough to hear it. I kept the agreement until the time of trial in November, 
      1817. I was employed by the company to carry on the law suit; there is a minute of it. I subpoenaed witnesses-to give evidence in the suit.”
    The defendants subsequently offered to prove that the original subscription for twenty-five shares was void; first, because Myers was drunk at the time; secondly, because no money was paid at the time of subscribing; thirdly, because the number (25) of shares was in a different handwriting; fourthly, because the company carried on the suit on the original subscription after the agreement had been entered into. The counsel for the plaintiffs objected to the evidence thus offered, except that part which relates to the former suit. The court sustained the objection, and the defendants’ counsel excepted to their opinion.
    After the court had delivered their charge, the-jury were about to retire, but before the constable had been sworn, the defendant’s counsel offered to send out with the jury the record of the suit of November Term, 1S16, No. 14, given in evidence to the court and jury, to which the plaintiffs’ counsel objected, and the court having sustained the objection, the defendants’ counsel excepted to their opinion.
    Among other matters, the court charged the jury, “That the company could legally enter into such an agreement with John Myers, as that given in evidence: that it might be entered into by a quorum of the managers, or by a committee appointed for that purpose, and whether the committee was duly appointed by a quorum of managers, and entered into the agreement, or whether a quorum of managers entered into it them selves, was a matter of fact for the jury, and might be proved by parol evidence, if there be no written evidence of such appointment, nor a minute made-of it in the books of the company.”
    To this opinion the defendant’s counsel also excepted.
    On the return of the record to this court, the following errors were assigned:—
    1. The court erred in admitting in evidence the articles of agree-ment of the 29th of April, 1817.
    2. The court erred in permitting Christian Suavely to give parol evidence of the proceedings of the Board of Managers, which should have been in writing.
    3. The court erred in not permitting the defendants below to-prove that the original subscription of John Myers was void, and that the plaintiffs prosecuted the suit on the original subscription after the execution of the agreement of the 29th of April, 1817.
    4. The court erred in not permitting the record of the suit to November Term, 1816, No. 14, to be taken but by the jury, the same being given in evidence.
    5. The court erred in their charge to the jury. .
    These errors were argued by Wright, for the plaintiffs in
    error, and by Weidman and Norris for the defendants in error, who cited, Peake’s Ev. 264, 265. 1 Mass. R. 5. 4 Serg. & Rawle, 494. 7 Serg. & Rawle, 273. 11 Serg. & Rawle, 123, 362. 13 Serg. & Rawle, 362.
   The opinion of the court was delivered by

Rogers, J.

It is my intention to notice but two points particularly, and to content myself with dismissing the other exceptions, with the single observation that they have not been sustained.

Under the plea of non est factum, when the deed offered in evidence corresponds with the instrument declared on, the only-proof that is required is, by the subscribing witness, that the defendant signed, sealed, and delivered it as his act and deed. When it does not correspond, something more is necessary. You are required to show the identity of the instrument with that declared on. Thus, the suit is brought in the name of John Styles, and the bond is in the name of William Styles. Here there would be a variance between the declaration and the evidence, and some proof would be required, to show that the bond was in fact given to John Styles, although it purported to be given to William.

It appears that the corporate name of the plaintiffs was, The President, Company, and Managers of the Berks and Dauphin Turnpike Road, and by that name the suit has been correctly brought, with the proper averments necessary to meet the peculiar situation of the cause. The agreement offered in evidence purported to be, John Myers with The Berks and Dauphin Turnpike Company. Without doubt, under the plea of non est factum, the evidence should not have been received, for this reason, that it appears to have been made with a different company, and, for aught that there appeared, there might have been two agreements of John Myers with entirely different incorporations. It then became necessary to give some testimony to the court, to show that there had been a mistake in the name, or misnomer, and that in truth the agreement offered in evidence was made with the company who brought the suit.

Without particularly stating the evidence, or saying what might be its effects before the jury, who are the ultimate judges of the fact of the execution, and the identity of the instrument declared on, I have no doubt sufficient was offered to justify the court in permitting the agreement to be made to the jury.

In the progress of the cause, a record of a suit to the November Term, 1816, No. 14, was given in evidence to the court and jury. I say to the court and jury, for this is expressly stated in the record, which is our only guide. The contradictory assertions of counsel can have no weight here. If the record speaks differently from the truth of the fact, it is not the fault of this court. The record imports verity. After the court had charged the jury, and they were about to retire to deliberate on their verdict, and before the constable was sworn, the counsel for the defendant offered to send out with the jury this record. This was objected to, and the court sustained the objection, to which the counsel of the defendants excepted, and have assigned it for error in this court.

The rule in Pennsylvania, as I have always understood it, is, that all papers given in evidence in the trial of a cause, except depositions, are to be sent out with the jury. The inspection of the papers is indispensable; for without it, it would in many cases be next to impossible for the jury to come to any correct conclusion. The only reason why depositions are not also sent out is, because the witnesses examined at the bar are not permitted to accompany the jury.

The decision of the court has been attempted to be sustained by the allegation, that the evidence was given to the court under the plea of a former suit pending, and that the issues in fact and in law, were tried at the same time. The first allegation is contradicted by the record, and the second does not appear; for I cannot suppose that so irregular a practice, as the trial of both issues at the same time, has taken place in this cause.

It is objected, that the evidence was improperly received, and that there was, therefore, no error in preventing the record from going out with the jury. It may be remarked, that the evidence was given without objection; but was it in time to take this exception, which is not that it was improperly received, but that the record given in evidence without objection should not have been sent out with the jury? The furthest the courts have gone, (when they found themselves in error,) is to instruct the jury to disregard the testimony. In this, there would be no injustice, as the party would have bis bill of exceptions, and would also, on a proper application to the court, have leave to supply the defect occasioned by the rejection of the evidence.

But was this record improper testimony? Without pretending to determine the effect of the evidence, I think it was not. One ground of defence was, that the company, after entering into the new agreement, still persisted in prosecuting the suit, which the agréement was intended to settle. If the jury should be of the opinion that the parties had .abandoned the new agreement, the defence would be most valid and proper.

The decision of the court has also been defended, on the ground that it was contrary to a rule of court, which prohibits the parties from sending out the dockets with the jury.

If this clearly appeared, I should have no hesitation in saying the court were correct; for there is great inconvenience and danger in suffering the records of the court to be taken out by the jury. The party should be furnished with exemplifications of the record. As this, however, does not appear, I am constrained reluctantly, I admit, to say, that in not permitting the record to be taken out by the jury, there was error.

Judgment reversed, and a venire facias de novo awarded.  