were assigned without valuable consideration. The assignee of a bond, takes it subject to all the defalcation to which it was liable, in the hands of the obligee. 1 Dall. 23. 1817. DASHER assignee υ. LEINAWEA Wright, contra. The right of defalcation did not arise VELL, jun. till after the assignment. The assignment to Michael, was in 1806; that to Elder, in 1812; and that to Dasher, in January, 1813. The right of defalcation extends only to such claims, as were due at the time of the assignment. 1 Dall. 23. The bill of exceptions states, that the defendant consented to the bond's being given up. Now it is clearly settled, that if the obligor says the bond is good at the time of the assignment, he cannot defalk. 1 Smith's Laws, 54. 90, 91. Reply. The bonds of the defendant were assigned by his father, in his life time, to his children, not knowing the extent of his debts. Therefore, after his death, these bonds were assets. He lodged them with Judge KRAUSE after the assignment, in order that he might deliver them to the children at a proper time, viz. when the debts should be all paid. In fact, then, the right of the defendant to defalk always existed, in case the estate of his father should be insufficient to pay his debts. Michael was not an assignee for He took the bond, as an advance in part, of his wife's share of her father's estate. a valuable consideration. The opinion of the Court was delivered by TILGHMAN C. J. The assignee of a bond takes it subject to all the equity, or right of defalcation which exists against the obligee, unless the obligee tells him that he has nothing to defalk. The assignment to Michael, we consider as an advance in right of his wife, and subject to defalcation, in case the father-in-law's debts exceeded his assets, in the hands of the defendant, who was his administrator. Peter Leinaweaver's death, the bonds of the defendant were equitable assets, for the payment of his debts. We think, therefore, that the administrators' accounts were prima facie evidence of the amount of Peter Leinaweaver's estate, and of the debts paid by the defendant, but not conclusive evidence. Without inquiring into the situation of that estate, justice cannot be done to the defendant. Inasmuch, then, VOL. III.-C c 1817. DASHER as it does not appear, that the defendant ever gave the plaintiff reason to suppose, that he had nothing to set-off against assignee his bond, we are of opinion, that the judgment should be LEINAWEA reversed, and a venire facias de novo awarded. υ. VER, jun. Judgment reversed, and a venire facias de novo awarded. Lancaster. Monday, The plain tiff averred in his statement, that the single he claimed, was assigned by himself, John Adam to B, who re plaintiff, on non est factum, a single bill agreeing in other respects with the statement, but assigned by Adam Lauter LAUTERMILCH executor for the use of LAUTERMILCH against KNEAGY. IN ERROR. ERROR to the Common Pleas of Lebanon county. This action was brought by John Adam Lautermilch, exbill on which ecutor of Margaret Bickel, deceased, for the use of John Adam Lautermilch against Yost Kneagy, administrator of Erhardt Heckedorn, upon a single bill given by Heckedorn Lautermilch, to Margaret Bickel. No declaration was filed; but the plaintiff executor of A, made a written statement of the cause of action, according assigned to the to the act of assembly. In this statement it was said, that the executor of Margaret Bickel, the plaintiff, assigned the said writing obligatory to John Lautermilch, who afterwards re-assigned it to the plaintiff. The defendant pleaded non est factum, and payment, and issues were joined in the usual manner. On the trial the plaintiff produced the single bill, milch, which agreed in all respects with the statement, except, that "agreeably to the assignment to John Lautermilch was signed by Adam and testament Lautermilch, and not John Adam. It was mentioned, howof A," (it being granted, ever, in the assignment, that it was made "agreeably to the that the plain- last will and testament of Margaret Bickel," and it was ecutor,) is evi- granted, that John Adam Lautermilch was her executor. jury to deter. The defendant objected to this evidence, but the Court admine whether mitted it, and their opinion was excepted to. the last will tiff was A's ex dence to the Adam Lauter milch and John Adam The plaintiff also offered to prove, that the name John Lautermilch are the same person. Where one of the subscribing witnesses to a single bill, became afterwards assignee and plaintiff, and the other is the wife of the obligor, proof of the hand-writing of the plaintiff, is evidence without previous proof of the hand-writing of the obligor. executor Adam Lautermilch, subscribed as a witness to the said note, 1817. before he became interested, was the hand-writing of the LAUTERMILCH plaintiff; it being admitted, that the other subscribing witness was the wife of Heckedorn. To this also an objection LAUTERMILCH was made, which was over-ruled, and another exception KNEAGY. taken. Godwin, for the plaintiff in error. Elder, contra. TILGHMAN C. J. (After stating the first exception.) It appears to me, that the evidence was properly admitted. The assignment not being according to the act of assembly, the action could not be supported in the name of the plaintiff, in his own right, and was, therefore, brought by him as executor, for his own use in his private capacity. There was no necessity for mentioning the assignment in the statement, nor has the defendant's plea called it into question. But the defendant contends, that the variance from the statement in the name of the assignor, shews, that it was not the writing on which the suit was brought. I do not think so. John Adam Lautermilch, and Adam Lautermilch, may be the same person; and the writing produced, agreeing in all other respects with that described in the statement, it was right, that it should be submitted to the jury, who were to decide on the issue of non est factum. There was another exception to the opinion of the Court, in admitting evidence of the hand-writing of the plaintiff; who, together with the wife of the obligor, were the only subscribing witnesses to the single bill. The plaintiff contended before the Court below, that the hand-writing of the obligor ought to have been proved, before evidence of the hand-writing of the subscribing witness was admitted. This exception, however, was very properly relinquished, as the point was decided by this Court in the case of Hamilton's lessee v. Marsden, 6 Binn. 45. I am of opinion, that the judgment should be affirmed. GIBSON J. Concurred. DUNCAN J. Concurred. for the use of υ. Judgment affirmed. In a suit upon an award for damages done to the plaintiff's land between the mer recovery, and gave in evidence a verdict and judgment be tween the same parties in trespass, brought by the plaintiff for the same kind claration in that suit, to have been done on the IN ERROR. [For a former decision in this case, see 6 Binn. 12.] ERROR to the Common Pleas of Lebanon county. Breidenbach, the plaintiff below, brought this action upon an arbitration bond entered into by the defendant, on the 10th August, 1785, and 4th 4th August, 1786, to abide the award of arbitrators for daAugust, 1786, the defendant mages alleged to have been done prior to that time, by the pleaded a for- defendant, to the bark mill and spring of the testator, by damming up a streamlet of water on the defendant's land. The defendant pleaded no award; and recovery in a former action in the Common Pleas of Dauphin county, (in which Lebanon county was then included,) for the same cause of action. The plaintiff replied, and set out the award, for the payment of 120 pounds; and assigned for breach, the nonof damage sta- payment thereof. To the second plea, he replied no such ted in the de- recovery. In support of the plea of a former recovery the defendant gave in evidence the record of a recovery, in an action on the case against him brought to November Term, 1788, by the testator in the Court above-mentioned, in which the declaration was for damming up a stream of water on thence to the the defendant's land, on the 10th August, 1785, by which the 1788, held, testator's bark mill and spring were overflowed and injured, whereby he lost the profits and advantages thereof, from the shew, by parol 10th August, 1785, to the 3d November, 1788, when that suit the jury, in was instituted. The plaintiff then offered the deposition of Stacy Potts, one of the jurors who tried the cause, to shew, clude the da- that on that trial, the plaintiff waved all claim for damages during the pe- from the 10th August, 1785, to the 4th August, 1786; that in the award. the jury was directed by the Court, on account of the arbitration, not to include that period of time in estimating the continuando damages, and that they therefore only included the damages the plaintiff may wave the sustained subsequently to the 4th August, 1786. This evi 10th August, 1785, and continued from 3d November, that the plain tiff might evidence, that that verdict, did not in mages done riod embraced In tres pass with a continuando and prove a trespass before the suit brought. dence was objected to by the defendant, but admitted by the Court and a bill of exceptions taken. Godwin, C. Smith, and Duncan, for the plaintiff in error. The record in the suit brought to November, 1788, is conclusive evidence of a recovery of damages therein, for the whole time contained in the continuando. If the plaintiff might have recovered for the whole time laid, he is estopped from denying that he did. The verdict embraces the whole matter in issue; and the damages being entire, must be taken to be for the whole time laid. 2 Saund. 171. It would be dangerous to permit the evidence of a juror to contradict the legal effect of the record. They cited also, 2 Black. Rep. 831. Elder and Hopkins, contra. In the plea of former recovery matters of law and fact are mixed, 6 Johns. 26. 30, 31. In the former suit the defendant might have shewn, that the award covered part of the time contained in the continuando, and it is proper to shew that he did so. The day laid in the declaration was not material; any other day might have been proved, as well as the 10th August, 1785. Lit. sect. 485. So the plaintiff may wave the continuando; or give evidence of only part of the time stated in it. Bull. N. P. 86. The suit pleaded in bar here was for the erection and continuance of a new nuisance. Action for trespass to a horse, and plea former recovery. Replication, that although the former suit was brought for trespass against two horses, the plaintiff relinquished the trespass as to one, and recovered only as to one. 2 Johns. 227. The opinion of the Court was delivered by TILGHMAN C. J. The question in this case, in the Court below was, whether the plaintiff had recovered damages in a former action, for a nuisance continued from 10th August, 1785, to 4th August, 1786. In order to prove that he had, the defendant gave in evidence the record of a recovery in a former action, in which a continuando was laid, including the time in dispute. On the other hand, the plaintiff offered, and the Court admitted, parol evidence, to shew, that on the trial of the former action, the plaintiff gave up part of the time 1817. HAAK v. BREIDENBACH executor of BRELDEN BACH |