The opinion of the court was delivered,
by
Sharswood, J.
It will be best to consider the several assignments of error in this case in their order.
The 1st is to the admission of the deposition of Henry Lindemuth. There had been a judgment by default for want of appearance, and on a rule to show cause why that judgment should not be opened, the deposition in question had been taken ex parte, but on due notice. This court has already decided that depositions taken on such a rule are admissible on the trial when [392]*392the witness is dead: Haupt et al. v. Henninger, 1 Wright 138. Here the witness was not dead, nor was he out of the state. Rut it was a deposition in the very same cause, though on a previous hearing. We have not been furnished with the copy of any rule of court of the Common Pleas of Schuylkill county, but wé are bound to presume that the deposition was within the rules of court on the subject. The rule most usual is that if the witness resides more than forty miles from the place of trial, it shall not be necessary to compel his personal attendance, but his deposition, if regularly taken, shall be read. Had this been a deposition taken in another cause between the same parties, and relating to the same subject-matter, it would have been within the 1st section of the Act of March 28th 1814, 6 Smith 208; as it is unquestionable that it might have been read on the hearing of the cause in which it was taken. A fortiori it may be used on a subsequent trial of the same cause.
The 2d error assigned is to the admission of the evidence offered by defendant to show that at the sheriff’s sale of the goods in question as the property of Wagner, the sale was forbidden by the attorney of the plaintiffs. The defence to the action was that the contract of sale in part performance of which the note in suit was given had been rescinded by the parties. Any evidence of acts or declarations by the plaintiffs inconsistent with the hypothesis that the sale was a perfect subsisting one was surely relevant and admissible.
The 3d error assigned was to the admission of the certified copy of the record of a suit brought in the names of the plaintiffs against the sheriff of Northumberland county in the Common Pleas of that county, to recover damages for an alleged trespass in taking and carrying away the goods in question, being the property of the plaintiffs. This record was clearly relevant and admissible for the reason given as to the admission of the evidence referred to in the 2d assignment.
The 4th assignment is that the court below erred in their answer to the plaintiffs’ 1st point, which was in substance that the defendant by pleading his freehold in stay of execution was estopped from setting up his present defence. This the court declined to charge, and we think rightly. What would have been the case if the defendant had obtained a stay by entering security it is not necessary to consider. But being a freeholder he was entitled to the stay under the Act of Assembly of June 16th 1836, § 3, Pamph. L. 762, and without any plea filed by him, if an execution had issued, the court would have set it aside, as indeed was done in this case. Although it is the usual and convenient practice for a defendant to file a plea of freehold, and to justify it when ruled to do so, it is not necessary. The fact was certainly evidence against the defendant, showing that his present [393]*393defence was an after-thought, but it could not be considered as an absolute estoppel, as the plaintiffs were put in no worse position than they were without this proceeding. The court had, notwithstanding the plea of freehold, opened the judgment on the ground of evidence of a defence subsequently discovered. Whether this was a rightful exercise of their discretion we are presently to consider. But that had nothing to do with the issue which was legitimately on trial before the jury.
The 5th error assigned is that the court declined to affirm the plaintiffs’ 2d point: “ that the action against the sheriff of Northumberland county, brought in the name of Riegel & Brother, it being shown under the evidence in this case that it was brought in a mistake, and is abandoned, has no tendency to discharge Wilson.” It is evident that it would have been error in the court to affirm this point as put. The rule of law is that “ to questions of fact the judges are not to answer.” How could the judge answer this point affirmatively without instructing the jury thereby that the fact of mistake had been proved ? If the court have a right to direct the jury that certain facts are proved or not proved, then the jury are bound- to obey the direction: Zerger v. Sailer, 6 Binn. 27. Questions proposed by counsel should be confined to matter of law, and if facts are introduced, it should be hypothetically, leaving it to the jury to decide them: Sweitser v. Hummel, 3 S. & R. 232.
The 6th, 7th and 8th assignments of error may be considered together. The answers to the plaintiffs’ 3d point, and the defendant’s 1st and 2d points, submitted it as a question of fact to the jury whether the sale of the goods in question from the plaintiffs to Wagner had not been rescinded by the parties. We think that in this there was error. The plaintiffs had originally sold the goods to Wagner, and upon his failing to pay for them, took from him a transfer of them as their own again, leaving him in possession as their agent. As however he remitted no money to them, they threatened to remove him. At his solicitation they agreed again to sell him the goods, he undertaking to give them three notes for the price with security. He procured and handed them two of the notes, one of them being the joint and several note now in suit. Thereupon the plaintiffs delivered the goods to Wagner, he promising to get the remaining note in a short time, and hand it to their attorney. Soon afterwards the goods were levied on by the sheriff as the property of Wagner. At the sale the plaintiffs’ attorney gave notice to the sheriff that the goods belonged to the plaintiffs and afterwards directed suit to be commenced against the sheriff. It does not appear that the notice was a public one to the bidders, nor that Wagner was present. Whether the sale was an absolute or conditional one was a question for the jury, upon which however there would not seem to be much doubt [394]*394under the well settled law as laid down in Scott v. Wells, 6 W. & S. 357, but if it was absolute it might undoubtedly be afterwards rescinded by both parties. So the judge very properly held. The acts of the attorney of the plaintiffs, if he had authority, which the jury might have inferred from his general employment in the case, were certainly evidence so far as the plaintiffs were concerned, hut the judge instructed the jury that they must he satisfied that Wagner, the other party, also agreed or acquiesced. There was no evidence however of such agreement or acquiescence, and it is error to submit a question of fact to the determination of the jury, of which there is no evidence. Had it been shown that Wagner was present at the sheriff’s sale, and heard a notice there publicly given that the goods belonged to the plaintiffs without any objection or protest on his part, it would have been evidence to go to the jury that he had agreed to rescind the sale. This does not appear, but on the contrary the proceeds of the goods were applied to the payment of his debts without any notice by him.
The 9th assignment of error is that the court erred in opening the judgment against Wilson.
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The opinion of the court was delivered,
by
Sharswood, J.
It will be best to consider the several assignments of error in this case in their order.
The 1st is to the admission of the deposition of Henry Lindemuth. There had been a judgment by default for want of appearance, and on a rule to show cause why that judgment should not be opened, the deposition in question had been taken ex parte, but on due notice. This court has already decided that depositions taken on such a rule are admissible on the trial when [392]*392the witness is dead: Haupt et al. v. Henninger, 1 Wright 138. Here the witness was not dead, nor was he out of the state. Rut it was a deposition in the very same cause, though on a previous hearing. We have not been furnished with the copy of any rule of court of the Common Pleas of Schuylkill county, but wé are bound to presume that the deposition was within the rules of court on the subject. The rule most usual is that if the witness resides more than forty miles from the place of trial, it shall not be necessary to compel his personal attendance, but his deposition, if regularly taken, shall be read. Had this been a deposition taken in another cause between the same parties, and relating to the same subject-matter, it would have been within the 1st section of the Act of March 28th 1814, 6 Smith 208; as it is unquestionable that it might have been read on the hearing of the cause in which it was taken. A fortiori it may be used on a subsequent trial of the same cause.
The 2d error assigned is to the admission of the evidence offered by defendant to show that at the sheriff’s sale of the goods in question as the property of Wagner, the sale was forbidden by the attorney of the plaintiffs. The defence to the action was that the contract of sale in part performance of which the note in suit was given had been rescinded by the parties. Any evidence of acts or declarations by the plaintiffs inconsistent with the hypothesis that the sale was a perfect subsisting one was surely relevant and admissible.
The 3d error assigned was to the admission of the certified copy of the record of a suit brought in the names of the plaintiffs against the sheriff of Northumberland county in the Common Pleas of that county, to recover damages for an alleged trespass in taking and carrying away the goods in question, being the property of the plaintiffs. This record was clearly relevant and admissible for the reason given as to the admission of the evidence referred to in the 2d assignment.
The 4th assignment is that the court below erred in their answer to the plaintiffs’ 1st point, which was in substance that the defendant by pleading his freehold in stay of execution was estopped from setting up his present defence. This the court declined to charge, and we think rightly. What would have been the case if the defendant had obtained a stay by entering security it is not necessary to consider. But being a freeholder he was entitled to the stay under the Act of Assembly of June 16th 1836, § 3, Pamph. L. 762, and without any plea filed by him, if an execution had issued, the court would have set it aside, as indeed was done in this case. Although it is the usual and convenient practice for a defendant to file a plea of freehold, and to justify it when ruled to do so, it is not necessary. The fact was certainly evidence against the defendant, showing that his present [393]*393defence was an after-thought, but it could not be considered as an absolute estoppel, as the plaintiffs were put in no worse position than they were without this proceeding. The court had, notwithstanding the plea of freehold, opened the judgment on the ground of evidence of a defence subsequently discovered. Whether this was a rightful exercise of their discretion we are presently to consider. But that had nothing to do with the issue which was legitimately on trial before the jury.
The 5th error assigned is that the court declined to affirm the plaintiffs’ 2d point: “ that the action against the sheriff of Northumberland county, brought in the name of Riegel & Brother, it being shown under the evidence in this case that it was brought in a mistake, and is abandoned, has no tendency to discharge Wilson.” It is evident that it would have been error in the court to affirm this point as put. The rule of law is that “ to questions of fact the judges are not to answer.” How could the judge answer this point affirmatively without instructing the jury thereby that the fact of mistake had been proved ? If the court have a right to direct the jury that certain facts are proved or not proved, then the jury are bound- to obey the direction: Zerger v. Sailer, 6 Binn. 27. Questions proposed by counsel should be confined to matter of law, and if facts are introduced, it should be hypothetically, leaving it to the jury to decide them: Sweitser v. Hummel, 3 S. & R. 232.
The 6th, 7th and 8th assignments of error may be considered together. The answers to the plaintiffs’ 3d point, and the defendant’s 1st and 2d points, submitted it as a question of fact to the jury whether the sale of the goods in question from the plaintiffs to Wagner had not been rescinded by the parties. We think that in this there was error. The plaintiffs had originally sold the goods to Wagner, and upon his failing to pay for them, took from him a transfer of them as their own again, leaving him in possession as their agent. As however he remitted no money to them, they threatened to remove him. At his solicitation they agreed again to sell him the goods, he undertaking to give them three notes for the price with security. He procured and handed them two of the notes, one of them being the joint and several note now in suit. Thereupon the plaintiffs delivered the goods to Wagner, he promising to get the remaining note in a short time, and hand it to their attorney. Soon afterwards the goods were levied on by the sheriff as the property of Wagner. At the sale the plaintiffs’ attorney gave notice to the sheriff that the goods belonged to the plaintiffs and afterwards directed suit to be commenced against the sheriff. It does not appear that the notice was a public one to the bidders, nor that Wagner was present. Whether the sale was an absolute or conditional one was a question for the jury, upon which however there would not seem to be much doubt [394]*394under the well settled law as laid down in Scott v. Wells, 6 W. & S. 357, but if it was absolute it might undoubtedly be afterwards rescinded by both parties. So the judge very properly held. The acts of the attorney of the plaintiffs, if he had authority, which the jury might have inferred from his general employment in the case, were certainly evidence so far as the plaintiffs were concerned, hut the judge instructed the jury that they must he satisfied that Wagner, the other party, also agreed or acquiesced. There was no evidence however of such agreement or acquiescence, and it is error to submit a question of fact to the determination of the jury, of which there is no evidence. Had it been shown that Wagner was present at the sheriff’s sale, and heard a notice there publicly given that the goods belonged to the plaintiffs without any objection or protest on his part, it would have been evidence to go to the jury that he had agreed to rescind the sale. This does not appear, but on the contrary the proceeds of the goods were applied to the payment of his debts without any notice by him.
The 9th assignment of error is that the court erred in opening the judgment against Wilson. The ground of this alleged error is that the term at which the judgment was entered had gone by. The rule to open was not taken until the succeeding term. A doubt was expressed in Mather’s Executor v. Patterson, 9 Casey 487, whether it was in the power of the court to open a judgment obtained adversely after the term had gone by. However that may he, it has no application to a judgment by default for want of appearance. Such a judgment ought to have no greater force than a judgment by confession, or on warrant of attorney by nil dicit, or non sum informatus, over which it has never been pretended that the court does not possess full power after the term. It might be productive of the most monstrous injustice to hold otherwise. It would preclude any relief even where the writ had not been served, or appearance had not been entered by the negligence of the attorney, and thus turn the injured party over to an action against the sheriff or the attorney for redress. In all cases where such a judgment is opened its lien is unaffected, and where an execution has been levied on personal property the court will take care to preserve its lien or put the defendant on terms of giving security for the debt. We cannot say that there was in this case any excess of power, and it is undoubted that the opening of a judgment is a matter which rests in the sound discretion of the court below, and cannot be reviewed on a writ of error.
Judgment reversed, and venire facias de novo awarded.