Gibson, C. J.
But that the heir is in no privity to the administrator, is also unfounded. He is entitled, at least, to a share of the residue of what may be recovered, after payment of debts ; and standing in a fiduciary relation, he is so far a privy in representation, that the act of the administrator will bind him as that of his trustee. But the rights of creditors, for whom also the administrator is a trustee, are not to be postponed to the equities of the heir against those persons in whose hands the assets are found; and this personal right of action is clearly assets to be collected for the protection of domestic creditors (of the possibility of whose existence in the present case it is impossible to judge), instead of sending them to pursue their claims in foreign courts against real assets which may not be as accessible abroad as the personal assets are at home. In order to perform this duty of protection, the nature of which was pointed out, and its obligation enforced, in Mothland v. Wireman, 3 Penns. Rep. 187, and Miller's Appeal, 3 Rawle 319 ; the administrator necessarily succeeds to the decedent’s right to rescind the contract, by recovering back the purchase money, or leave the heir to affirm it, by insisting on a conveyance.
But though it had been held, that a personal action might lie, the nature of the case on which it might be maintained, had not been intimated. It would be founded only on a breach of the contract, or a rescission of it. But when the cause came to be tried, the special counts were found to be unsupported by the proof; and it remained to be determined, whether a recovery might not be had on the general count, by treating the contract as at an end, and the intestate’s share of the purchase money as having been received by the defendant to the intestate’s use. With this intent the cause was put to the jury on the point of actual fraud, of which there was full and ample proof, which, by vitiating the contract in its origin, gave a clear title to a return of the money paid under it. The plaintiff had [410]*410shown a sale by the defendant, of a moiety of the land at an advanced price; which, he contended, was the measure of the damages. But the jury were directed, that the price of the land sold by the defendants, could be recovered only on the basis of the contract, of which the recovery would be an affirmance; besides, that the right of the plaintiff’s intestate was not specifically attached to the moiety sold, and that enough still remained in the defendant, as a trustee of the legal title, to satisfy the trust; and that he was, therefore, entitled but to the money paid by his intestate, with interest. From this it is apparent, that though evidence of the re-sale, and the price received, was irrelevant, it was not sufficient to influence the verdict, which was right upon the merits.
There are minor points which deserve but a cursory notice.
Against a right of action dependent on the existence of a secret fraud, the statute of limitations runs but from the period of discovery: and though more than time enough to complete the bar had elapsed between the receipt of the money and the institution of the suit, it did not appear that a sufficient time had intervened between the latter, and the discovery of the fraud which annulled the contract and entitled the intestate or his representative to repetition of the purchase money. On this ground the defence on the statute of limitations was put to the jury, and it seems to us properly disposed of in the verdict. To the objection that the proof did not support the general count, in which the money is laid to have been received to the use of the administrator, and not of the intestate ; it is a sufficient answer, that the point was not made at the trial, or in time to give the plaintiff an opportunity to have the discrepance removed by an amendment. As to the objection that the verdict was taken generally, and not on the count which was the actual basis of the recovery ; it is enough to say, that whatever effect that might have on a motion in arrest of judgment for faultiness of a particular count, it is certainly not a valid reason for a new trial.
The exceptions to evidence are not sustained. By the provisions of the forty-second rule of the court, the deposition of Daniel Moore was properly received, even without proof that he had been served with a subpoena; as it was conceded that he resided more than forty miles from the place of trial; and his testimony was not secondary to that of the other witness called to prove the same fact. In like manner the deposition of Mary Moran, taken on a joint and several commission to the state of Delaware, was properly received, though the commissioner nominated by the defendant did not attend at the execution of it. The known character and standing of the absent commissioner forbid a suspicion that he was purposely out of the way; but it must be apparent that if the absence of a commissioner were sufficient to stop the proceeding, a joinder in the commission might always be used to defeat the object of it. But there was no deficiency of authority. The commission being both joint and several, and therefore providing for the very contingency that actually hap[411]*411pened, was well executed ex parte; and as all the interrogatories appear to have been answered, there is no cause on this or any other ground to disturb the verdict..
Judgment affirmed.
Freeman against Pennock.
Opinion of the Supreme Court, delivered by Chief Justice Tilghman, May 28, 1821. Gibson and Duncan, Justices, assented. 3 Penns. Rep. 317, in note.
Tilghman, C. J.—This is an action on the case founded on an agreement alleged by the plaintiff to have been made between Jacob Pennock the intestate, and Doctor Clarkson Freeman the defendant below, respecting the purchase of a tract of land in [406]*406the state of Ohio. Each party was to pay a moiety of the purchase money, and the deed was to be taken in the name of Freeman, who was to hold one half in trust for Pennock, and convey it to him on demand. The purchase was made according to the agreement, the money paid equally by the parties, and the deed of conveyance executed to Freeman alone, who afterwards, in the lifetime of Pennock, refused to acknowledge the trust, or to convey a moiety to Pennock, though required by him to do so. Pennock left a widow, who died, pending this suit, and one child, an infant. Two bills of exception were taken to evidence admitted on the trial, and one general exception to the charge of the court.
The first exception was to the admission of Jacob Miller the plaintiff, as a witness. Previous to his being offered as a witness, it was proved that his administration account was settled, and he executed a release, which divested him of all interest in the estate of the intestate, so that his liability to costs was the only obstacle to his competency, and to remove this objection, 18 dollars and 12 cents, costs which had already accrued, were paid by John Yentzer, guardian of Franklin W. Pennock, the only child of the intestate, and a recognizance to the defendant in the sum of 1000 dollars was entered into by James Hopkins and William Jenkins, esquires, conditioned for .their payment of “ all costs incurred and to be incurred in the prosecution of this suit to the said Doctor C. Freeman, and which may accrue to him and all the officers of the court, witnesses produced by him, and all others that may be entitled to costs to the final determination of the cause, if the same should be determined in favour of the defendant, the same being legally taxed against the plaintiff in this cause.” In the argument on this bill of exceptions, many points were made of which it is unnecessary to take notice, as there is one decisive objection to the plaintiff’s competency, and that is, that inasmuch as this recognizance covered those costs only which should be incurred on the part of the defendant, the plaintiff remained answerable for his own costs, which, in case of a verdict in his favour, he would recover against the defendant. He was, therefore, immediately interested in the event of the suit, and ought not to have been admitted as a witness. It will be understood that the court gives no opinion whether the witness would have been competent, if the recognizance had been so drawn as to include all .the costs, both of the plaintiff and defendant.
The second bill of exceptions was to the admission of parol evidence to prove the contents of a paper which was once in the possession of the defendant. The counsel for the defendant objected to the evidence, because no notice to produce it had been given to the defendant. The plaintiff’s counsel admit the general rule, that notice is necessary but contend that the paper in question was of no importance, and created no obligation; that it was the property of the defendant, and might be destroyed by him at his pleasure, and therefore, that it was unnecessary to give him notice to produce it. This paper, according to the account given of it by the witness who proved the contents, contained a statement in the handwriting of the defendant, of the money paid by the defendant, and by Jacob Pennock, respectively, towards the purchase of the land in which they were partners. It was not signed by the defendant, but was produced by him to the plaintiff.
Now, when it is considered, that the parties were at issue respecting the existence of a partnership, it will appear at once, that the paper was extremely important, because it proved the partnership by the written confession of the defendant. Whether it created any obligation, and whether it was the property of the defendant and might be destroyed by him without blame, are questions of no moment. The paper itself was better evidence than parol testimony of its contents, and therefore the defendant should have had an opportunity of producing it. It was plainly within the rule which required notice, and the parol evidence ought not to have been admitted.
The defendant’s counsel proposed ten questions to the president of the court of common pleas, oil which they requested his opinion to be delivered to the jury, and they now complain that several of these questions were not answered.
That it is error not to answer a legal question pertinent to the issue, has been often decided. The counsel for the plaintiff say, that the charge of the president contains an answer to all the questions proposed. I rather incline to the opinion that the questions are not all answered; but that point is unimportant, as this judgment must [407]*407be reversed for other reasons. But as it is often matter of dispute, whether the questions proposed to the court have been answered, I will suggest a mode of proceeding in such cases, which will prevent all possibility of dispute, and that is, to give the opinion on each question, in writing, immediately following the question. When the judge, instead of doing this, gives a general charge, in which' he intends to answer all the questions proposed to him, it may sometimes happen that there may be an omission, or it may be doubtful whether there is an omission or not. These doubts have frequently occurred, and pains should be taken to prevent them, as they sometimes occasion the -reversal of judgments which this court would wish to support.
But other errors have been assigned in the charge of the president. These may be reduced to two points. Is this action maintainable by the administrator of Pennock ? And if it is, what should be the measure of damages ?
1. The objection to the action is, that according to the plaintiff’s own showing, there was a resulting trust to Pennock for a moiety of the land purchased in partnership, and therefore there is an equity in the heir, which the administrator has no right to convert into personal property, by this suit for damages. We have no evidence of the laws of the state of Ohio, but if they recognize the same principles of equity which prevail in other states, there would be an equity in the heir of Pennock, as to a moiety of the land purchased in partnership. Nevertheless, if the agreement was. parol (as the evidence seems to indicate), and it was broken in the lifetime of Pennock, by the defendant’s refusal to convey him a moiety of this land, a cause of action accrued, which, after his death, could be prosecuted by his administrator only. The heir cannot support an action for this breach of promise in the lifetime of his ancestor. Whether there may not be cases in which equity would permit the heir to make use of the name of the administrator to recover damages for his own benefit, I will not now inquire, because it is evident that any damages which may be recovered in this case would be for the use of the heir, he being the only child of his father, and entitled to the whole estate, both real and personal. There is a peculiar reason why the action should be maintained by the administrator in the present instance, and that is, that the courts of Pennsylvania have no jurisdiction over land lying in Ohio, and therefore, the only relief they can afford on this contract, is a personal action, which is very convenient, as both parties reside here. It may be more for the advantage of the heir of Pennock, to recover damages on this contract than to resort to a chancery suit in the state of Ohio, for the land itself; and if the contract is of such a nature as to give an action for damages, there can be no reason why the courts of Pennsylvania should obstruct it.
Where two citizens of the same state enter into an agreement respecting lands in another state, they naturally look to the laws of their own state for redress, in case of breach of contract. And in this reasonable expectation, the courts will not disappoint them. Of this, the case of Penn v. Baltimore affords innumerable examples, where the court of chancery of England compelled Lord Baltimore to a specific performance of articles of agreement for fixing the boundaries between the provinces of Maryland and Pennsylvania. If we had a court of chancery, no doubt Freeman might be compelled to execute a conveyance to the heir of Pennock. But not having such a court, I see no remedy but by an action on the case, on this parol contract, by the administrators of Pennock.
2. But if the action be maintainable, what should be the measure of damages ? In considering this question, I will take for granted that the plaintiff is acting in concert with the guardian of the heir, which, from the record, I think myself warranted in doing. And under those circumstances, if the defendant did, upon request, refuse to convey a moiety of the land to Pennock in his lifetime, I see no objection to recovering one half the value of the land in damages. No second action will lie on this contract, and therefore, the defendant can never again be exposed to answer in damages. But damages to this amount, the defendant cannot say would be unjust, because the heir might afterwards go into the state of Ohio, and recover one half of the land. This I cannot suppose, because, being contrary to equity, it would not be permitted in a court of equity. Where one has a contract for land on which he may support an action at law, he may take his choice to sue at law, or seek-a specific per[408]*408formance in equity. But he cannot do both. He cannot recover damages at law from his trustee, for refusing to convey the legal estate, and then go into equity and recover the estate itself, on the ground of a resulting trust. Having made his election to sue at law, he must abide by it.
It appears that in this case the jury gave the value of a moiety of the land in damages, but the damages were given generally, and the declaration consists of five counts, two of which are said to be bad by the plaintiff in error. If so, the judgment would be erroneous, because this court cannot ascertain on what counts the jury meant to assess the damages. Where some of the counts are bad, and no evidence is given in support of them, the court before whom the cause is tried, may amend the' verdict by entering it in favour of the defendant on the bad counts and for the plaintiff on the good counts only. But a court of error knows nothing of the evidence and can make no such amendment. Let us examine, then, the fourth and fifth counts in this declaration. The fourth count, in the first place, sets forth a verbal agreement between Jacob Pennock and the defendant, to join in the purchase of a tract of land containing twenty-five acres, with a sawmill, &c. for the sum of 1951 dollars, of which each party was to pay one half, and the deed was to be taken in the name of the defendant alone, to be held by him nevertheless, as to one moiety, in trust for the said Pennock, his heirs and assigns; and that the said purchase was accordingly made, a deed executed by the vendor to the defendant alone (in trust as aforesaid), and a moiety of the purchase money paid by the said Pennock. The declaration then avers that, in consideration of the promises, the defendant promised to pay to the said Pennock, his administrators and assigns, as much money as a moiety of the said land with the appurtenances was reasonably worth, &c. Now what consideration is there for this promise ? I confess I can perceive none. The defendant had done every thing which the agreement required him to do; he had paid half the purchase money and taken a deed in his own name (in trust for Pennock as to a moiety): why then should he pay one half the value of the land ? or what was he to receive in consideration of such payment? It does not appear that he was to receive any thing. If Pennock had agreed to release his equity in the. land, it would have been sufficient, for then the defendant would have had title to the whole tract both at law and in equity. It is argued indeed by the plaintiff’s counsel, that the equity of Pennock would have been virtually released by acceptance of half the value of the land. But this kind of argumentative release is not a sufficient consideration to support an assumption. The defendant might have paid his money, and then had to encounter a suit in chancery. If the agreement was, that Pennock should release his equity, the declaration should have so averred it, and a release should have been tendered when the money was demanded. I am of opinion, therefore, that this count is bad, because it sets forth a promise without consideration. The fifth count avers an agreement to purchase in partnership, a purchase made, a deed taken in the name of the defendant alone, the purchase money paid by each in moieties, &c. as stated in the fourth count, and then assigns a breach of promise as follows. “Yet the said defendant, his promise and agreement aforesaid in no wise regarding, since the conveyance of the said tract of land to him as aforesaid, gainsays his said promise and agreement, and refuses to hold and stand seised of an undivided moiety of the said tract of land to and for the use of the said Jacob Pennock in his lifetime and for the use of the legal representatives of the said Jacob since his decease, &c.” The substance of the alleged injury is, that the defendant has told a falsehood by denying the trust: but this denial has not divested the right of Pennock. His equity remains just as strong after the denial as before, nor can any words of the defendant affect it. I cannot perceive, therefore, that this count sets forth any act or omission of the defendant by which the plaintiff has suffered damage.
Upon the whole then, my opinion is that the judgment should be reversed, and a venire de novo awarded; and inasmuch as it appears that the defendant has been compelled to pay the sum recovered, the plaintiff must make restitution.