Commonwealth for Stub v. Deck , 28 Pa. 497 ( 1857 )

The opinion of the court was delivered by

Woodward, J.

The insufficiency of this evidence to prove such a mistake in the bond in suit as would be ground for equitable relief, was the very point ruled in Stub v. Stub, 3 Barr 251, recognised and approved in Commonwealth v. Stub, 1 Jones 157. I say this evidence, for while there are some verbal variations of it as compared with the former edition, it is substantially the same. Counsel specify two particulars in which the evidence is more full now than before.

1st. That Forrer and Deck were told in the presence and hearing of Messrs. Strong and Smith that the bond was given for half the money in court.

2d. That at the instance of the counsel on both sides (naming them), the bond was executed for half the money in court, and for nothing else.

But it was in proof 'before that the witness told Forrer the bond was for the money that William Stub sought to take out of court. Forrer spoke to Deck in German, and told him what it was. Here is the same thing, a little more condensed in the narrative, but in substance the same fact as that proved on the last trial. It was not proved on either trial that the witness said to Forrer, or that Forrer told Deck the bond was for that money, and “ nothing else.” This “ nothing else” is an expletive of the witness, and expresses his understanding of the transaction rather than the communication to Forrer and Deck. But if it was used to them, it would make no essential difference in the effect of the evidence —it would still be the fact that was proved before, that they were told the bond was given for the money in court.

This fact was twice decided to be no impeachment of the bond; and, without entering into the question afresh, we rest our judgment on the former adjudications.

Judgment in each case affirmed.