(Paul and another, Executors of Paul, v. Shallcross and another.) necessity of relief from their terms, and they now only produce justice according to the facts and circumstances of the case; it is not easy to give a good reason why less solemn instruments, or parol contracts, should be, in law, different; but it is not necessary to decide the matter in this case. If this condition could be binding, the second sale must not be clogged with any terms likely to lower the price; and I am not prepared to say, that the clause in the conditions of the second sale, that the balance should be secured by a bond, and a warrant of attorney, and mortgage, which must mean a warrant of attorney to confess judgment, was not an essential variance of the terms of sale likely to deter bidders, to lessen the price; but I do not go on that either. The agreement of the 14th of June, was a private, not a public sale. Its terms are as plain as words can make them, and except, as to price, are in all respects different from those of the first sale, and from those set up as the terms of the second public sale. The sums payable, and times of payment, are different; the insurance of the property is different; no resale is mentioned, but an absolute forfeiture is agreed on, and security is required and given; in short, it was an entirely new and distinct contract. The words, "agree to take the property at their former purchase, of one thousand seven hundred and fifty dollars," are not the contract, but part of the contract, modified by every word which follows.

We cannot, in this case, consider this second contract as a fraud, for it is not so found in the special verdict; and the facts do not warrant the inference, if we could draw one of that kind.

Every contract may be waived, or varied by the parties to it. When a first contract is declared by a party to be at an end, as the first sale was here by the second advertisement, the parties may still come to another agreement. When the new agreement is in itself complete, contains precise stipulations as to what shall be the effect, on certain contingencies, and these effects are to be different from what was stipulated by the contract which had been declared void, I know of no rule of law, or reason, which will justify a court in saying, that all the terms of the first agreement are still in force, and that the latter agreement is only cumulative. If this were said, nothing could be so unsafe as to enter into new articles with one who had before contracted. Why was not the first agreement complied with? Who refused to complete it? The defendants. Why did they make a new agreement? To get different and better terms. But if the plaintiffs' construction is adopted, this can never be. I am of opinion, the second was an entirely new agreement: That the defendants are bound by it, and not by the first, and that the judgment of the District Court was right. Judgment affirmed.

[PHILADELPHIA, JANUARY, 19, 1830.]

HARLAN against STEWART, Administrator of STEWART.

IN ERROR.

A rule to take the depositions of ancient, infirm, and going witnesses, may be granted, after an appeal has been taken from the decision of a justice of the peace, but before a transcript of his judgment has been filed in the Court of Common Pleas,

On a writ of error to the Court of Common Pleas of Philadelphia county, it appeared that this action was originally brought before Justice LOUGHHEAD, by David Stewart against Charles Harlan, to recover the sum of thirty-five dollars. On the 22d March, 1826, the justice gave judgment for the plaintiff; on the 29th of the same month, the defendant appealed, and entered into the recognizance required by law. On the 30th of the following May, he filed a transcript of the judgment of the justice in the office of the prothonotary of the Court of Common Pleas. Prior to the filing of the transcript, viz. on the 19th of April, 1826, on motion of the plaintiff's attorney, and affidavit of special circumstances filed, the court granted a rule to take the depositions of ancient, infirm and going witnesses, on twenty-four hours' notice. Due notice was given to the defendant, that the deposition of Freeman Latimer, a witness for the plaintiff, would be taken before alderman Badger, on the 25th April, 1826, and at the appointed time, the deposition was taken by the plaintiff, ex parte, the defendant not attending.

On the trial in the Court of Common Pleas, the plaintiff, after having proved that a subpoena had issued for the witness, and that he was unable to attend, in consequence of illness, offered in evidence his deposition, taken before alderman Badger, as above mentioned. The defendant's counsel objected to its being read: but the court overruled the objection, and admitted the deposition, which was the error now assigned.

Hopkins, for the plaintiff in error, referred to the act of the 20th of March, 1810, sect. 4. Purd. Dig. 452. Stotesbury v. Covenhoven, 1 Dall. 164.

Brewster, contra, was stopped by the court.

The opinion of the court was delivered by

HUSTON, J.-On the 22d of March, 1826, Justice LOUGHHEAD gave judgment for Stewart against Harlan, the defendant below. On the 29th of March, the defendant appealed to the Common Pleas, and gave bail according to law, but did not file the appeal in the Common Pleas until 30th May, 1826, being the first day of the term next after the appeal.

On the 19th of April, the plaintiff carried a certified copy of the judgment of the justice, and of the appeal taken, into the Court of

(Harlan v. Stewart.)

Common Pleas, and an affidavit stating that a material witness was about to leave the state. A special rule to take depositions was granted: notice of taking the depositions was duly given, and the deposition regularly taken.

At the trial of the cause, the witness had returned to this country, and had been duly summoned to attend the trial, but, on proof that he was confined to bed by sickness, the deposition was offered, and received by the court.

Among the earliest of our reports, 1 Dall. 164, we find, under similar circumstances, a rule granted to take the deposition of a witness before the return of the writ. And again, in the same book, p. 251, this is recognised. If such were not the practice in a seaport, intolerable hardship and loss would be the consequence. By the fourth section of the act of 20th March, 1810, appeals are to be, in court, subject to the same rules as other actions. There is no good reason why we should disturb a practice of so long standing in that court. There is no error in the admission of this deposition on the facts stated.

Judgment affirmed.

[PHILADELPHIA, January, 25, 1830.]

BEIDMAN and others against VANDERSLICE and others.

IN ERROR.

In assumpsit, or other action upon contract against several defendants, the plaintiff cannot enter a nolle prosequi, as to one, unless it be for some matter which may be pleaded as a personal discharge. Thus, if a feme covert be one of the defendants, a nolle prosequi may be entered as to her.

If an appeal from an award of arbitrators be made without the affidavit required by law, the irregularity is waived by the opposite party taking the costs out of court.

On a writ of error to the Court of Common Pleas of Philadel phia county, the facts appeared to be these:

On the 1st of December, 1827, an action was commenced before Isaac Boileau, Esq., a justice of the peace, by Andrew Vanderslice and others, the defendants in error, against Catherine Beidman and Michael Faunce, and Elizabeth his wife, the plaintiffs in error, "on a plea of debt or demand arising on contract." The claim was for goods sold and delivered. On the 26th of December, 1827, judgment was rendered for the plaintiffs, from which the defendants appealed to the court of Common Pleas, to March Term, 1828. On the 18th of April, 1828, the plaintiffs entered a nolle prosequi, as to Elizabeth Faunce, one of the defendants; and on the 11th of the following November took out a rule of arbitration. On the 3d of December, 1828, the arbitrators made an award in fa

(Beidman and others v. Vanderslice and others.)

vour of the plaintiffs, from which one of the defendants, on the 18th of the same month, appealed, paid the costs, and entered into the proper recognizance; but filed no affidavit as required by law.

On the 20th of December, 1828, the plaintiffs obtained a rule on the defendants to show cause why the costs paid in on the appeal, should not be taken out of court; and on the 27th of the same month, they took the costs out of court. No further proceedings were had until the 12th of January, 1829, when the plaintiffs applied to the court for a rule to show cause why the defendants' appeal should not be dismissed for the want of an affidavit, on appealing." This rule the court made absolute, and ordered the appeal to be dismissed.

66

In these proceedings, two errors were assigned:

1. That the entry of a nolle prosequi, as to one of the defendants, vitiated the proceedings, and the action and judgment could not be sustained.

2. That the Court of Common Pleas erred in making absolute the rule to dismiss the appeal, because the plaintiffs had waived the irregularity by receiving the costs, and by delay.

Miles, for the plaintiffs in error, contended,

1. That, although in actions of trespass against several, the plaintiff might enter a nolle prosequi, as to one, yet, in actions arising ex contractu, a nolle prosequi, as to one, discharged all; and cited 1 Peters's Rep. 46. 20 Johns. Rep. 126.

2. That the plaintiffs having applied for and received the costs, without any reservation of right, and having been guilty of unreasonable delay in applying to have the appeal dismissed, had waived the irregularity in taking the appeal. Mayes v. Jacoby, 8 Serg. & Rawle, 526.

Campbell, for the defendants in error, being desired by the court to confine himself to the last point, said, that, in fact, the money was not taken out of court, and it did not appear by the record that it was.

SMITH, J., (after stating the facts and the errors assigned,) delivered the opinion of the court, as follows:

As to the first error. It has been long settled, that a nolle prosequi does not amount to a retraxit, and that it may be entered as to a part of the suit, or as to one of the defendants, where the action is in its nature joint and several, or where the defendants sever in their pleas. Thus, in trespass, or other action founded upon tort, the plaintiff may enter it at any time before final judgment as to one or more of the defendants, and proceed against the others. In truth, it amounts only to an agreement not to proceed in the action against the particular person, and is.entered against him for the pur pose of obtaining substantial justice. The cases of Pugsley's Executors v. Pell and Wife, 20 Johns. Rep. 126, and of Minor et al. v. The Mechanics' Bank, 1 Peters's Rep. 74, are express

(Beidman and others v. Vanderslice and others.)

on this point. But, in assumpsit, or other action upon contract against several defendants, the plaintiff cannot enter a nolle prosequi, as to one, unless it be for some matter which may be pleaded in his personal discharges; such as ne unques executor, or, in England, a certificate of bankruptcy; because the contract being joint, the plaintiff could do no otherwise than bring his action against all the parties; and he ought not, by entering a nolle prosequi, as to one, or more of the defendants, to prevent those against whom he might recover from calling upon the others for a rateable contribution. Besides, there would be manifest inconsistency in compelling the plaintiff to join all the parties to such a contract, in bringing his suit, and allowing him afterwards, in the progress of the cause, to sever them by a nolle prosequi.

The present action was founded on a joint contract; but one of the defendants was Elizabeth Faunce, a feme covert, who was not able to enter into a contract, and ought not, therefore, to have been joined. She was never under any responsibility, nor could she ever be called upon for contribution. The coverture was proper matter for a plea discharging her from the action, and, consequently, the nolle prosequi, as to her, was perfectly legal.

We are accordingly of opinion, that the first objection, assigned as error, is not sustained.

It is, however, important to consider, whether the second objection be sustainable or not, as informal or irregular appeals are of frequent occurrence. It is true, that in this case, the affidavit, requisite on entering an appeal was not filed or made, and, therefore, in this particular, the appeal was not in compliance with the act of assembly, which requires, that the party appealing, shall swear, or affirm, that it is not for the purpose of delay such appeal is entered, but because such party firmly believes injustice has been done;" and I am not aware that this precise point has ever been, in totidem verbis, decided in this court. Yet, it has often been held, that irregularities and neglect of the preliminary requisitions of the law, in taking appeals, are cured by the acquiescence of the adverse party, or by acts which were considered as equivalent to a waiver of his objection. In Mayes v. Jacoby, 8 Serg. & Rawle, 526, it was remarked, that there was no difference between an appeal taken out of season (as was the case there) and an appeal taken without having paid costs, made the requisite affidavit, or given the proper security; and any and all of these, may be waived.. In that case, there was a delay of three years. In the case of Cameron et al. v. Montgomery, 13 Serg. & Rawle, 128, the delay was more than a year; and in Shank v. Warfel, 14 Serg. & Rawle, 205, it was nearly two years. In each of these cases, it was considered, that the appellee came too late with his objection; though in the first cited case, there were other circumstances from which, as well as the delay, the defendant's acquiescence in the appeal was inferred, such as his pleading to the nurr., joining issue, and taking deposi