The opinion>0Fthe courtwas;delivere.d by
Houston, J;
This case has,, been, twice before,- this court, see 6 Watts. 96, and 8 Watts 188. At-the-first trial-most.of; the. facts now in. evidence, were, given, but: all the. points, made-now .were not then, raised.;: at the second: trial, the whole ease- was not gone into. The:- statement in the first.' report; will show that this, court did.not decide all the. points, which arose, in, the second-and-, in-this trial. It very often occurs that on a second, trial, .evidence - is addm ced not known of, or not produced-at .the first. The facts will then be different-; and of course the-law which always, depends o.n-.the facts, may be.different;, or,.as occurred in. t-his-case,. points-of; law, may be raised, at a; second trial not-, mentioned at the first.. At* the first trial; the power, of attorney was.objected tp,.bee.ause;dated- 31st August 1S30, and by the almanac that was on Sunday, and, a-witr ness swore it w.as executed on-Sunday.- Therewere-two -witnesses to it, and it was acknowledged the-same day before-a-justice—none of these were called, and for this reason this: matter was left [244]*244for further proof, as the case was to go back, for other reasons stated in the opinion. When it came back, we heard no objection to the execution by Daniel and Leah Strohecker—but objection was made to the manner in which John Strohecker acting under that power executed the assignment of the bond—and it was decided not to be such as to transfer the legal right to the bank.
The bank having only an equitable interest in the bond, the question was made, whether it could take the money in court from Leah Strohecker, to whom, as a daughter of John Garber, the land was bound for her share of his estate, if it was considered as taken by William Sharman—or whose interest in the land remained in her, if it was considered as taken at the appraisement by Daniel Strohecker, her husband—all the heirs of John Garber released to Sharman except Daniel Strohecker and wife.
The bank called Benjamin Davis, now cashier, who proved there was a note put into the bank in December 1S15, for 2050 dollars, endorsed by John Garber and John Strohecker—that in the following year John Strohecker was the drawer and John Garber indorser, and in 1820 one of the young Garbers was indorser; (he note was renewed from time to time—in 1820,it was for 1672 dollars,and due on the 1st August and was paid off 14th September 1820—and is not now in bank. On his cross examination, he said something about the money having been got first on the note to pay Grant; this was objected to as being improper, as leading to testimony which would be a part of the defence of defendant, and Ellmaker and Buckley were cited. This case seems to have been in great request in that county last year. It may be very improper when a witness is called to state a particular fact, to lead him to a full statement of defendant’s case, which is not yet open to the court and jury; but it is not error to permit him to answer on his cross-examination a single question closely connected with what he has proved, even if the answer may make in favor of the party putting the question.
John L. Hiester was called next, and after stating what passed when John Strohecker gave the bond to the bank, he was asked whether the officers of the bank had not called on William Sharman, the obligor in the assigned bond, and he had stated he had no defence to the bond and would pay it if the bank took an assignment of it; this was objected to as irrelevant, was rejected and exception taken; and it was clearly irrelevant. The bank had sued Sharman and got judgment, and he had paid 750 dollars on it; when his land was sold on another judgment, and the money in court, and this a suit about the application of the money, there could be no use in proving what was asked; it was at best an attempt to incumber the case with that which was .entirely immaterial.
The assignment of the bond of Sharman, concluded as follows:— “ And in case the same cannot be recovered of the within named William Sharman, then I do promise and agree to pay the amount [245]*245thereof, together with all charges thereupon accruing, unto the Farmers’ Bank of Reading aforesaid, or their assigns. Witness.my hand and seal. September 14, A. D. 1820. Signed and scaled by John Strohecker. Sealed and delivered in presence of two witnesses.
Defendants then opened their case, and'called Benjamin Davis again, who stated—John Strohecker owns twenty-eight shares of stock in the Farmers’ Bank of Reading, in his own name; he was an original stockholder—thirty dollars have been paid on each share—shares were 50 dollars each—Strohecker’s estate owes the bank 45 dollars and interest from 12th January 1835—twenty-one dividends are not paid over, none paid since November 182.9—divi-dends amount to 676 dollars and 20 cents—interest on the dividends to this time exceeds 200 dollars. To this, plaintiff objected.; the objection was overruled and exception taken. It will be-seen by recurring to this case in 8 Watts 188, that it was to be inquired into, whether the power of attorney given to assign this bond, was for a good and valuable consideration, or voluntary and without consideration.; if the latter, and John Strohecker got the bond without consideration, he had obligated himself to pay the bank, if the money could not be got from Sharman. The bank, by act of assembly, had John Strohecker’s stock and dividend bound for this debt, and this suit is in fact to ascertain whether-they shall be paid by Leah Strohecker, out of her father’s estate not yet received, or by John Strohecker. It was then- proper to prove, that the bank had in its hands funds of John. Strohecker, who was alleged to be, and who plaintiff undertook to prove, was, the debtor in honesty and conscience. There was no error in receiving the testimony.
The witness continued—William Sharman paid at several times, in April 1822, 500 dollars, and in November 1822, 250 dollars, in all 750 dollars on this bond; when the bond was transferred to the bank, John Strohecker by it paid a note of240 dollars. Daniel Strohecker was not on that note, nor on the 45 dollar note still due.
So that Daniel was not liable for any of the debts which the bond on Sharman went or was intended to go in satisfaction. Daniel in 1S15, was drawer on the large note first given, but on the renewal; it was drawn by John Strohecker, his father, and endorsed by John Garber his father-in-law, and, after his death by John Garber the son. Mr Davis had said something about the money being intended to pay Grant. The next two bills of exceptions were to evidence which will be stated, and which conduced to prove, that though Daniel at first entered into articles with Mr Grant, yet it was for his father and father-in-law, who received the deed and paid the money.
Defendant offered a deed from the executors of Mr Grant, dated 14th of June 1816,. to John, Garber and John Strohecker,. for 275 acres and 61 perches of land, for the consideration of 16,503 dollars and 33 cents.
Defendant next offered in evidence the deposition of George [246]*246Grant, as follows:—In pursuance of the above rule, &c., &c., &c., being first sworn, doth depose and say:—“ Daniel Strohecker first agreed to purchase from my father a tract of land nearly opposite Derrstown, in the county of Northumberland. He paid to my father about 480 dollars, that was all he ever paid. The executors of Thomas Grant (of whom witness was one) made a deed to 'John Garber and John Strohecker.
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The opinion>0Fthe courtwas;delivere.d by
Houston, J;
This case has,, been, twice before,- this court, see 6 Watts. 96, and 8 Watts 188. At-the-first trial-most.of; the. facts now in. evidence, were, given, but: all the. points, made-now .were not then, raised.;: at the second: trial, the whole ease- was not gone into. The:- statement in the first.' report; will show that this, court did.not decide all the. points, which arose, in, the second-and-, in-this trial. It very often occurs that on a second, trial, .evidence - is addm ced not known of, or not produced-at .the first. The facts will then be different-; and of course the-law which always, depends o.n-.the facts, may be.different;, or,.as occurred in. t-his-case,. points-of; law, may be raised, at a; second trial not-, mentioned at the first.. At* the first trial; the power, of attorney was.objected tp,.bee.ause;dated- 31st August 1S30, and by the almanac that was on Sunday, and, a-witr ness swore it w.as executed on-Sunday.- Therewere-two -witnesses to it, and it was acknowledged the-same day before-a-justice—none of these were called, and for this reason this: matter was left [244]*244for further proof, as the case was to go back, for other reasons stated in the opinion. When it came back, we heard no objection to the execution by Daniel and Leah Strohecker—but objection was made to the manner in which John Strohecker acting under that power executed the assignment of the bond—and it was decided not to be such as to transfer the legal right to the bank.
The bank having only an equitable interest in the bond, the question was made, whether it could take the money in court from Leah Strohecker, to whom, as a daughter of John Garber, the land was bound for her share of his estate, if it was considered as taken by William Sharman—or whose interest in the land remained in her, if it was considered as taken at the appraisement by Daniel Strohecker, her husband—all the heirs of John Garber released to Sharman except Daniel Strohecker and wife.
The bank called Benjamin Davis, now cashier, who proved there was a note put into the bank in December 1S15, for 2050 dollars, endorsed by John Garber and John Strohecker—that in the following year John Strohecker was the drawer and John Garber indorser, and in 1820 one of the young Garbers was indorser; (he note was renewed from time to time—in 1820,it was for 1672 dollars,and due on the 1st August and was paid off 14th September 1820—and is not now in bank. On his cross examination, he said something about the money having been got first on the note to pay Grant; this was objected to as being improper, as leading to testimony which would be a part of the defence of defendant, and Ellmaker and Buckley were cited. This case seems to have been in great request in that county last year. It may be very improper when a witness is called to state a particular fact, to lead him to a full statement of defendant’s case, which is not yet open to the court and jury; but it is not error to permit him to answer on his cross-examination a single question closely connected with what he has proved, even if the answer may make in favor of the party putting the question.
John L. Hiester was called next, and after stating what passed when John Strohecker gave the bond to the bank, he was asked whether the officers of the bank had not called on William Sharman, the obligor in the assigned bond, and he had stated he had no defence to the bond and would pay it if the bank took an assignment of it; this was objected to as irrelevant, was rejected and exception taken; and it was clearly irrelevant. The bank had sued Sharman and got judgment, and he had paid 750 dollars on it; when his land was sold on another judgment, and the money in court, and this a suit about the application of the money, there could be no use in proving what was asked; it was at best an attempt to incumber the case with that which was .entirely immaterial.
The assignment of the bond of Sharman, concluded as follows:— “ And in case the same cannot be recovered of the within named William Sharman, then I do promise and agree to pay the amount [245]*245thereof, together with all charges thereupon accruing, unto the Farmers’ Bank of Reading aforesaid, or their assigns. Witness.my hand and seal. September 14, A. D. 1820. Signed and scaled by John Strohecker. Sealed and delivered in presence of two witnesses.
Defendants then opened their case, and'called Benjamin Davis again, who stated—John Strohecker owns twenty-eight shares of stock in the Farmers’ Bank of Reading, in his own name; he was an original stockholder—thirty dollars have been paid on each share—shares were 50 dollars each—Strohecker’s estate owes the bank 45 dollars and interest from 12th January 1835—twenty-one dividends are not paid over, none paid since November 182.9—divi-dends amount to 676 dollars and 20 cents—interest on the dividends to this time exceeds 200 dollars. To this, plaintiff objected.; the objection was overruled and exception taken. It will be-seen by recurring to this case in 8 Watts 188, that it was to be inquired into, whether the power of attorney given to assign this bond, was for a good and valuable consideration, or voluntary and without consideration.; if the latter, and John Strohecker got the bond without consideration, he had obligated himself to pay the bank, if the money could not be got from Sharman. The bank, by act of assembly, had John Strohecker’s stock and dividend bound for this debt, and this suit is in fact to ascertain whether-they shall be paid by Leah Strohecker, out of her father’s estate not yet received, or by John Strohecker. It was then- proper to prove, that the bank had in its hands funds of John. Strohecker, who was alleged to be, and who plaintiff undertook to prove, was, the debtor in honesty and conscience. There was no error in receiving the testimony.
The witness continued—William Sharman paid at several times, in April 1822, 500 dollars, and in November 1822, 250 dollars, in all 750 dollars on this bond; when the bond was transferred to the bank, John Strohecker by it paid a note of240 dollars. Daniel Strohecker was not on that note, nor on the 45 dollar note still due.
So that Daniel was not liable for any of the debts which the bond on Sharman went or was intended to go in satisfaction. Daniel in 1S15, was drawer on the large note first given, but on the renewal; it was drawn by John Strohecker, his father, and endorsed by John Garber his father-in-law, and, after his death by John Garber the son. Mr Davis had said something about the money being intended to pay Grant. The next two bills of exceptions were to evidence which will be stated, and which conduced to prove, that though Daniel at first entered into articles with Mr Grant, yet it was for his father and father-in-law, who received the deed and paid the money.
Defendant offered a deed from the executors of Mr Grant, dated 14th of June 1816,. to John, Garber and John Strohecker,. for 275 acres and 61 perches of land, for the consideration of 16,503 dollars and 33 cents.
Defendant next offered in evidence the deposition of George [246]*246Grant, as follows:—In pursuance of the above rule, &c., &c., &c., being first sworn, doth depose and say:—“ Daniel Strohecker first agreed to purchase from my father a tract of land nearly opposite Derrstown, in the county of Northumberland. He paid to my father about 480 dollars, that was all he ever paid. The executors of Thomas Grant (of whom witness was one) made a deed to 'John Garber and John Strohecker. John Strohecker said he advanced the 4S0 dollars which Daniel paid on the agreement. The whole consideration amounted to about 16,000 dollars. It was all paid by John Strohecker; Garber and Strohecker told me they got the money out of the bank. When we made the deed, I understood they were joint owners, and each to pay an equal proportion. I never looked to Daniel Strohecker for any part, nor he never paid any part thereafter. John Strohecker never directed me to call on Daniel for any part of the purchase-money. John Strohecker told me he intended to give Daniel part of the above described land for the property he got from Daniel in Schuylkill county.”
There was nothing wrong in admitting this testimony, it went to show who got and used the money from the bank, and that Daniel had no interest in it, and it explained why his name was left off, after the purchase was made.
It was proved that the notes of John Strohecker, endorsed by young Garber, and in lieu of which the bond was given, were not now in the bank, and to show that the bank lost nothing as respected the endorser, the defendants called John Garber, who testified, “ In 1820, I had no property; my father’s estate had a large claim against Grant’s estate at that time; my father died in March 1819; my father’s estate was considered large, considered good. Daniel Strohecker died in August 1821; we got over 1000 dollars from Grants.”
Plaintiff offered to prove by the witness that he is now solvent, and able to pay. This was objected to and overruled, and exception taken. Surely the circumstances of the witness at that time was not at all material; whether he has acquired property at the end of twenty years, could not affect what was done in 1820. Besides the bills of exceptions, errors were assigned to the charge of the court: they may be reduced to two—“ The court erred in charging the jury that if, at the time of the assignment of the bond, it was the debt of Daniel Strohecker, and the note was given up and cancelled, the plaintiff would be .entitled to recover, otherwise the plaintiff would not be entitled to á verdict; or if the bank gave up the note, yet if Daniel was not liable to pay it, plaintiff would not be entitled to recover.” And in not telling the jury that the plaintiffs were entitled to recover the amount of the 1672 dollars, after deducting the 760 dollars paid by Garber.
Charge of the court to the jury.—“The plaintiff asserts a right to the money claimed by virtue of a power of attorney of Daniel Strohecker and wife to John Strohecker. The bond was not legally [247]*247assigned. The execution' of the power was not in the name of the principals, and did not divest their legal interest in the bond. To divest this interest, the act must be theirs. Thus far the the case is free from difficulty.
“ Has any thing been done which would in equity entitle the plaintiffs to the money, in the absence of a legal execution of the power? Was the debt to be paid in bank by the assignment of the bond the proper debt of Daniel? This is an important inquiry in the case. His being originally the drawer of the note, would be prima facie evidence that the debt was his, and that John Strohecker, the endorser, was his surety. As between John and Daniel, had it become the debt of John anterior to the assignment? The note, was then in John’s name. Daniel was not then on the note. John had other notes in bank at this time. The power authorized the assignment of the bond in payment of a note. That is, in payment of one note. Why was it to be applied in payment of one note? May it not have been because the debt was still his debt. You have heard all the evidence on this point, and will decide this fact.
“ Was the note in bank given up to John at the time the bond was assigned to the bank ? This fact you will also decide. Mr Heister has testified that, to the best of his recollection, the note was can-celled and given up. You will decide this matter.
“If the debt was the debt of Daniel, and the assignment, such as it was, was taken in absolute payment of the note, and it was cancelled and given up, what effect would the assignment of John, to pay the bond, if it could not be recovered of Sharman, have on the transaction? If the debt was Daniel’s, he would no longer be liable to the bank. The evidence of his indebtedness was given up. He stood no longer their debtor. His discharge was perfect. In equity, if the debt was Daniel’s, and the note was given up, that is, if the debt was Daniel’s at the time of the assignment, and the note was then given up, the plaintiff would be entitled to recover. In that case it would be but justice to John Strohecker’s estate that the plaintiff should recover, and neither Daniel nor his representatives could object to the want of legality, in the execution of the power, nor could his widow object to it after his death. She would be as strongly bound as her husband.
“ It is contended that, if the bank gave up the note, then the plaintiff is entitled to recover, whether the debt was then the debt of Daniel or not; and we have been requested so to charge you. I do not think that the law is so, and refuse to charge you as we are requested. We charge you that, if the debt at the time of the assignment was the debt of Daniel, and the note was cancelled and given up, then the plaintiff would be entitled to recover, otherwise the plaintiffs would be entitled to a verdict. In case you find for the plaintiff, credit must be given for the amount that was applied to the payment of the small note, as there is no pretence that this [248]*248was the debt of Daniel, and also for the eighty dollars paid to John, as in both cases it was clearly a misapplication of the fund.”
The first part of the objection includes and covers the last. On that I need only say, it is in accordance with the opinion of this court in this cause, as reported in 8 Watts, to which I refer as the present opinion of this court. And if Daniel was not on the 14th of September 1820 liable to the bank for the 1672 dollar note, surely the bank could not make him liable by any act they could do. It is well remarked in the opinion in 8 Watts, that the bank did not seem to rely qn the bond or the assignment of it, as they took the personal covenant of John Stroheeker in addition to what he did in transferring the bond. They not only have his estate liable on that covenant, but .have retained his stock and dividends in their hands.
When Stroheeker transferred the bond, beside the note for 1672 dollars, he got up another note for 140 dollars, and received 80 dollars in cash. Garber paid 750 dollars to the bank, making 970 dollars. The bank stock of John Stroheeker was 840 dollars. Whether these balanced the whole claim of the bank, or by calculating interest left a small part unpaid, we do not inquire; this was not put to the court and jury, and we will not investigate it.
Judgment affirmed.