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be of necessity. Eaton v. Southey, Willis 131. The distress in this
case being then illegal, it was not a defence to the Cliffords more
than any other trespass on these goods would have been.

Judgment affirmed.



248 . SUPREME COURT [Pittsburgh



Clement against Bixler.

A plaintiff who, after suit brought, paid all the costs which had accrued, gave
security for all which might accrue, and assigned all his interest in the claim
for which suit was brought to another person, is notwithstanding incompetent
to testify on the trial of the cause.

Costs paid into court to render a witness competent, are absolutely paid, and
are irrecoverable.

ERROR to Fayetle county.

This was an action of trover by Joseph Bixler against Wilson
Clement. On the trial c 'of the cause the plaintiff proved that he had
assigned all his interest in the claim for which the suit was brought,
produced the prothonotary's receipt for all costs which had accrued,
offered George D. Stevenson as security for all costs which might
accrue, who was admitted to be sufficient security ; and then the
counsel offered Joseph Bixler, the plaintiff, as a witness, who was ob-
jected to by the defendant and admitted by the court, who sealed a bill
of exceptions at the instance of the defendant. The plaintiff recovered
for the use of the person to whom he transferred his claim, and a
fieri facias was issued for the amount of the judgment with full costs.
The errors assigned were in the admission of the plaintiff as a wit-
ness, and in the execution for costs which had been paid by the
plaintiff below.

Ewing, for plaintiff in error.
Todd, for defendant in error.

The opinion of the Court was delivered by

GIBSON, C. J. When a plaintiff of record sells his title to make
himself a witness, he takes the fruit of his testimony beforehand ;
and though strictly free of legal disqualification, by payment and
deposit of costs, he gains an advantage from his position in the cause
which the defendant may not use the like means to counteract. It
is certainly too firmly established to be controverted, that such a
plaintiff may so divest himself of interest as to be a witness for his
assignee ; but the inequality of the principle in its application to the
parties would seem to dictate a restriction of it to cases falling indis-
putably within the limits assigned to it by the decisions. The rule
to be extracted from these is simply that a plaintiff, having assigned
his title, paid the costs incurred, and deposited a sum incontestably ade-
quate to those to be incurred, has qualified himself to be sworn ; and
the reason of it is, that the payment and deposit being on condition
that the defendant takes the costs of the action out of court at the



Sept. 1834.] OF PENNSYLVANIA, 249

[Clement v. Bixler.]

termination of it, whatever be the event, have divested the plaintiff
of all possibility of loss or ?ain from the verdict. How stood the
plaintiff in the present case when called to testify 1 He had assigned
his entire interest ; but he had received the costs of the reference
from a contingent liability, for which he could be extricated but by
actual payment inlo court, as mere security would have left him
exposed to an execution in the event of an adverse recovery. These
were therefore to be refunded. But the plaintiff's assignee had paid
fifty dollars into court, and taking this to be a deposit in reimburse-
ment of the' costs of the reference, it left a surplus of but eleven
dollars ; a sum palpably too small to answer the accruing costs, and
proved to be so by the event. As to security instead of actual depo-
sit of the residue, it is sufficient to say that it is not what seems to
be demanded by the decisions. If less than payment would suffice,
we should soon be called on to dispense even with security where
the plaintiff himself should be sufficient. But security has not the
effect of releasing him who gives it from direct personal responsibility;
and even if it had, it would leave the plaintiff exposed to his surety's
action for reimbursement. The accruing costs then being unpaid,
was the plaintiff of record liable to pay tfiem 1 In Fetterman v.
Plummer, 9 Serg. fy Rawle 22, a distinction was taken between an
assignment after suit brought, and an equitable assignment before it,
the nominal plaintiff being answerable for costs in the first instance,
and not in the second ; but whether for costs to be incurred was not
specified. And in Brown v. Weir the same thing was predicated in
the same general terms. It would seem however that all the costs,
whether present or subsequent, have been considered as standing in
this respect on the same footing. In Steele v. The Phoenix, 3 Binn.
306, the leading case, all the costs, including those of the trial (and
none further could accrue), were paid before the plaintiff was offered ;
and in the report of Brown v. Weir, it is said that a sum sufficient to
cover " all the costs of the suit" was paid in, which would include
those to be incurred. In Patton v. Ash, 7 Serg. 4* Rawle 116, a
deposit to answer future costs was expressly included ; and the same
thing was done in North v. Turner, 9 Serg. fy Rawle 244 ; Willing
v. Peters, 12 Serg. fy Rawle 178. But in Richter v. Selin, 8 Serg.
4" Rawle 437, it was said that at least the costs incurred at the time
of the assignment must be paid ; which implies a doubt as to the
accruing costs not warranted by the principle of the distinction be-
tween assignment before suit brought and assignment after it. Under
the former, our courts are to execute the trust in accordance with
chancery principles and chancery practice ; consequently the holder
of an equitable chose in action may assign it, without wrong or re-
sponsibility, to a party unable to pay costs, though it be an implied
stipulation of the trust that the assignee may sue in his name. But
a legal plaintiff who has sued strictly at law may not turn himself
inlo a trustee by assigning to an insufficient person, and thus rid
himself of responsibility for future costs, the incurring of which he

III. GG



250 SUPREME COURT [Pittsburgh

i

[Clement v. Bixler.]

has rendered unavoidable. As between his assignee and himself he
may indicate the hand to receive from the sheriff; but as between
the defendant and himself, he cannot change the relation originally
constituted by his own act. The plaintiff was therefore an incom-
petent witness.

It is necessary to defermine the exception to the execution but for
the sake of the principle. That a plaintiff may assign his right to
future costs, or entitle his assignee in any event to the costs paid in,
is unsustained by any of the decisions. In Patton v. Ash, the money
was deposited under a stipulation that it should be applied to the
costs let the verdict be as it might ; so that in any event the whole
costs were to be paid by the plaintiff, without reference to any sup-
posed right of reclamation in any one else. In that case there was
no assignee to claim under the plaintiff's title, as he had sued ori-
ginally as a trustee ; but the costs might have been considered as
subject to sink into the fund recovered if the defendant were not
entitled to recover them. That case therefore seems to be in point ;
and the principle of it is equally applicable to costs subsequently
incurred, as the deposit is on no pretence to be taken back. Though
it would be possible to make a plausible distinction as to these by
treating the assignee as an independent owner of the title, and as
thenceforth prosecuting it for his exclusive benefit ; yet unless he
could prosecute it at his exclusive risk, which I have attempted to
show he cannot, it would be unreasonable to allow him the cor-
relative benefit of costs to be recovered as incidental to the judg-
ment. Beside such a distinction would afford undue encourage-
ment to these transactions, by enabling the plaintiff to effect a transfer
on more advantageous terms. The equitable plaintiff therefore
would not have been entitled to recover the costs paid in.

Judgment reversed, and a venire de novo awarded.



M'Kinney against Dows.

Where due notice of a commission, regularly obtained, to take the deposition
of a witness has been given to a party who fails to file cross interrogatories
within the usual time, and waits until the commission is executed and returned,
he cannot then, without an order of court and previous notice to the other party,
take out a commission to "cross-examine" on "cross interrogatories" filed,
and embrace in them leading questions to the witness.

ERROR to the common pleas of Warren county.
The facts of this case, so far as they illustrate the point decided,
will b$ found in the opinion of the court.



Sept. 1834.] OF PENNSYLVANIA. 251

[M'Kinney v. Dows.]

Pearson, for plaintiffs in error.
Thompson and Galbraith, contra.

The opinion of the Court was delivered by

KENNEDY, J. The counsel for the plaintiffs in error, who were
the defendants in the court below, took no less than seventeen bills
of exception to the opinion of the court on questions as to the ad-
missibility of evidence and the competency of witnesses, offered in the
course of the trial; all of which have been assigned for error. We
are of opinion that there is no error in any of them excepting 1 the
fifteenth ; and this alone will therefore be considered. The plaintiffs
in error, during the pendency of the action in the court below, en-
tered a rule for a commission upon interrogatories filed by their attor-
ney to take the testimony of Henry Butler, who resided out of the
state. The usual notice required by the rule of court in this behalf
was given to the attorney of the defendant in error, who was the
plaintiff below, to afford him the opportunity of joining in the com-
mission and filing cross interrogatories if he chose. This, however,
not being done within the time allowed for that purpose by the rule
of court, the plaintiffs in error took out their commission, had it exe-
cuted, and returned. After this the attorney for the defendant in
error entered a rule in the prothonotary's office for a commission to
cross examine, as he stated, Henry B i ^er, whose evidence had been
previously taken under the commissi n of the plaintiffs in error. He
at the same time filed what he called "cross interrogatories," and
gave notice of the entry of his rule to the attorney of the plaintiffs in
error ; upon which the attorney for the plaintiffs in error filed the
following objection to it in the office. "The defendants object to
the fourth interrogatory put to Henry Butler; among other reasons
for the following : the questions put in the same interrogatory are
too leading in their form and nature ; and it is not competent for the
plaintiff, James Dows, to give evidence of his own acts, and especi-
ally of his own declarations in the case." The interrogatory thus
objected to is as follows. " When, as you state, Gilchrist and Dows
were threatened by yourself and your counsel with proceedings in
chancery, did not Dows expressly state he did not care a straw for
such proceedings ; that he was in no way connected with Mr Gil-
christ; that you might with as much propriety threaten any other
man in Cazenovia as himself; that if he indorsed the note proposed
to be given, it was merely to do a favour to Mr Gilchrist, who was
his friend?"

The course adopted and pursued in this case by the attorney of
the plaintiff below, to have a cross examination as he called it, of the
witness of the defendants, and under that pretence or name to claim
the right of putting his interrogatories in a leading shape to the wit-
ness, is somewhat novel and out of the ordinary course of practice.
It cannot, I think, in fairness be considered in any other light than
a commission taken by the plaintiff below to examine the witness in



253



SUPREME COURT



[Pittsburgh



[M'Kinney v. Dows.]

the same manner as if he had been his own, and of consequence he
ought not to have put the interrogatories in a leading form. He had
an opportunity offered to cross examine, when he might have pro-
pounded leading interrogatories, but for some reason he did not
choose to embrace it. Having declined the usual course, it would,
as it appears to me, be attended with great irregularity, confusion
and inconvenience to permit a parly as a matter of course to take
out a commission of his own will, and to give to the interrogatories
any form or character he pleases. I will not say but a case might
happen where the court, in the exercise of a proper discretion, might
permit a commission to be taken on leading interrogatories ; as for
instance in case a witness examined under a previous commission,
testified to matters and facts in favour of the party taking his evi-
dence, which were in nowise inquired for by the interrogatories an-
nexed to the commission, and which might operate very unjustly
against the other party unless he were allowed the benefit of a fur-
ther examination on interrogatories couched in leading terms. I can
perceive no good reason why, in such case, he should not be permitted
to do so, because it was impossible for him to anticipate evidence
from the witness of facts and matters not touched on or alluded to
in the interrogatories of the party taking it, so as to be able to cross
examine in regard to them. The counsel of the defendant in error
cited Hook t?. Hackney, 16 Serg. fy Rawle 385, in support of the
regularity of the form of the interrogatories put by him in his com-
mission : but so far as that case is applicable to this, I conceive it to
be rather a condemnation of this. The court seemed to think the
proceeding in that case somewhat informal, but as the commission
had been allowed by a special order of the court, and no objection
made by the other party until after the execution of it, it was held
too late to do it then. And I think such course ought never to be
approved of but under a special order of the court, upon cause shown
and previous notice given to the other party.

Judgment reversed, and a venire de novo awarded.



Sept. 1834.] OF PENNSYLVANIA. 253



Stewart against Stewart.

A parol gift of land from a father to a son is as much affected by the statute
of frauds as if it were to a stranger ; and to take it out of the statute, there must
be a delivery of possession and the expenditure of money or labour on the land
in consequence of the gift.

WRIT of error to the court of common pleas of JUleghany county.

This was an action of ejectment for twelve acres of land, brought
by Sarah Stewart, the defendant in error, against Robert Stewart
and another, the plaintiffs in error. Title was admitted to have been
in John Stewart deceased, the husband of the plaintiff and father of
the defendants below, for the whole tract of which the ground in
dispute is a part. The plaintiff below then gave in evidence the will
of John Stewart deceased, dated the 12th of February 1825, and
proved the 3d of September 1825, by which he devised to the plain-
tiff all his real estate to hold during her life.

The defendants below then gave evidence showing that Robert
Stewart had received the ground as a parol gift from his father,
which his father, for a number of years previous to his death, uni-
formly acknowledged to have made. The precise period at which
the gift took place, and whether the donee entered into possession
before or after the date of the gift, did not appear. But after the
gift was made, Robert Stewart put improvements to the value of 50
dollars on the house which stood upon the ground, whether at. his
own expense or at that of his father, was disputed. From 1817 till
the death of his father in 1825, during a large portion of which time
he held the ground in dispute by virtue of the gift, he carried on the
whole farm for his father as a cropper, allowing to his father two-
thirds of the products of the farm.

The plaintiff then proved that the father, for a year or two previous
to his death, had rented the house and garden belonging to the
ground in dispute, and that up to his death the ground was never
assessed in the name of Robert Stewart, but that the whole tract
embracing it was assessed in the name of the father.

The court below charged, that the parol gift, under which the
defendant below claimed, was void under the statute for prevention
of frauds and perjuries, and that the consideration of natural love,
accompanied by delivery of possession, were not circumstances that
would exempt the case from, or vary, the operation of the statute.

Error was assigned to this charge.

Forward, for plaintiff in error.

For a series of years the father uniformly acknowledged the parol



254 SUPREME COURT [Pittsburgh

[Stewart v. Stewart.]

gift. It was never attempted to be frustrated until the old man was
in his dotage and on his deathbed. By his will the wife got his
whole estate for life. Provision was also made for the two youngest
children. It would be fraudulent, and would defeat the object of the
statute, were the gift to be rescinded, and the plaintiff in error thus
excluded from a provision confessedly made by the father in consi-
deration of the son's services, industry, and remaining at home to be
the stay of the family, when other sons, old enough to assist, had
gone away in pursuit of their own interests. The question is,
whether the parol gift was so far executed, as to take it out of the
statute of frauds 1 Possession was given to the donee, who after-
wards made some improvements. Actual delivery of possession in
the case of a parol sale, avoids the operation of the statute. And
why should not the same principle apply to the case of a parol gift,
made in consideration of natural love and affection, by a father to a
son"? May we not consider the gift, in the present case, in the light
of a parol sale? Syler's Lessees. Eckhart, 1 Sinn. 378. When the
fact of possession is clearly made out with reference to the agree-
ment, it takes it out of the statute. It is no part performance. It
is an entire execution of the contract. And this is the criterion by
which we are to be governed in judging whether the case comes
under its operation. The donor ought to be affected by his own
act ; and when he has actually made the gift and executed the con-
tract by putting the donee in possession, as in the present case,
where is the danger of defeating the object of the statute ? It is
not necessary, as maintained by the court below, that there should
be possession, valuable improvements, and payment of taxes, to
avoid the statute. In the case in 3 Penns. Rep. 364, where it was
held that a parol gift from a father to a son was placed on the same
footing with a parol sale to a stranger, the proof was that there was
no gift. Jones v. Peterman, 3 Serg. fy Reticle 543.

Burke and Felterman, for defendant in error.

The naked question presented in this case is, whether delivery and
possession will take the case out of the statute. There was no evi-
dence to prove at what time the gift was made, or that the son was
in possession in pursuance of the contract. The whole of the pre-
mises was rented by the father after the alleged gift took place. The
son was a cropper, and gave his father two-thirds of the grain, a fact
which rebuts the idea of possession. Eckert v. Eckert, 3 Penns. Rep.
332. The land was never assessed in the name of the son. The
courts have latterly not evinced a disposition to increase the excep-
tions to the statute. The only reason for ever excepting a case from
its operation is, that the object of it would be defeated by a contrary
construction ; as where valuable improvements have been made by
the donee or grantee. But here that ground does not exist, and
hence the reason also ceases to exist. Bassler v. Neisley et al., 2
Serg. 4. Rawle 352 ; Phillips v. Thompson, 1 Johns. Ch. 149. It is



Sept. 1834.] OF PENNSYLVANIA. 255

[Stewart v. Stewart.]

disputed whether the improvements alleged to have been made by
the son on the cabin, were paid for by himself or by his father.

PER CURIAM. The point in this case was decided in Eckert v.
Mace, 3 Penns. Rep. 364, where it was expressly said that a parol
gift to a son is as much affected by the statute of frauds, as if it were
to a stranger; nor was it pretended in Eckert v. Eckert, Ibid., or in
Syler v. Eckert, 3 Binn. 378, that such a gift would be valid, if not
followed by improvements. To take a parol contract out of the
statute, it is necessary not only that it be partly performed by deli-
very of the possession, but that it be on a valuable consideration
paid or secured to be paid ; or in the case of a gift, that there be an
expenditure of money or labour in consequence of it, which comes to
the same thing; and this for the plain reason that no equity arises
from the naked delivery of the possession, and without a specific
equity a chancellor would not interfere to compel a conveyance or
execution of the contract.

Judgment affirmed.



Bemus against Howard.

A witness is competent to prove what another witness did not say on a for-
mer trial, although he may not be able to testify to the substance of all he did
say.

In an action on the case against a physician for mala praxis, it is not com-
petent for the plaintiff to give evidence that the defendant abandoned the patient
and refused to attend upon him, unless the cause of action be so laid in the de-
claration.

ERROR to the common pleas of Crawford county.

This was an action on the case, by George W. Howard against
Daniel Bemus, a physician,. for negligence and want of skill in his
profession, by reason of which the plaintiff lost his leg. There had
been a former trial of the cause, in which Francis Ross had given
evidence, and he was called again on this trial and gave evidence.
David Cumpton was called by the plaintiff as a witness to prove that
Ross had not testified on the former occasion to a material fact which
he now testified to. He said " he could not recollect the words."
The court then asked him if he could recollect the substance of his
testimony ; and this question was repeated several times, and the
witness always replied by stating what Ross had not said on the
former occasion. The defendant then offered to prove by the wit-
ness, that Ross had not on the former occasion testified to a certain
fact : but the court refused to permit the question to be answered



256 SUPREME COURT [Pittsburgh

[Bemus v. Howard.]

until the witness would give the state of his recollection about what
Ross did say. Exception was taken by defendant. The defendant
requested the court to charge the jury, that as the plaintiff had not
complained in his narr. of the defendant having abandoned and re-
fused to attend the patient, he could not now set that up as a cause
of complaint; but the court refused so to charge, and the defendant
excepted.

Pearson, for plaintiff in error.
Riddle, for defendant in error.

The opinion of the Court was delivered by

SERGEANT, J. The first error assigned is in rejecting the evidence
contained in the defendant's bill of exceptions. Francis Ross, a wit-
ness for the plaintiff, had testified as to the fact of the defendant's lift-
ing or changing the position of the plaintiff's leg, about six weeks
after it was set. The defendant offered David Cumpton as a witness
to prove that on a former trial between the parties before Ham-
ilton, Esq., Thomas Ross testified to the defendant's having neglected
the plaintiff's leg, and said nothing, at that time, as to the injury
done by raising it. The court held, that the defendant could not
endeavour to invalidate the testimony of Ross by this proof, unless
Cumpton, the witness, would tell them the state of his recollection
as to the testimony of Ross. No satisfactory reason has been given
here for this decision. The state of the witness's recollection was a
matter of inquiry after the defendant's question was answered, and
went to his credibility, not to his competency. If it be meant that
the witness must substantially recollect the whole testimony of Ross,
before he can speak of an omission in the course of it, I do not per-
ceive any ground for the position. One may not remember the whole
testimony of a witness, and yet may remember that he did not in the
course of it mention a particular fact : just as one may not recollect
all the persons he saw at an interview, and yet may safely aver that
a particular individual was not present. It may even be impressed
on his mind by the aid of extrinsic circumstances. It is not like the
testimony of a person deceased, offered in-lieu of the original witness,



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